Nelson's Estate, Matter of

Decision Date10 February 1977
Docket NumberNo. 11882,11882
Citation250 N.W.2d 286
PartiesIn the Matter of the ESTATE of Carolyn G. NELSON, Deceased. Cornelia OSTERKAMP and Richard Osterkamp, Proponents and Appellants, v. Harold A. WEEKS et al., Contestants and Respondents.
CourtSouth Dakota Supreme Court

Samuel W. Masten, Canton, John D. Gubbrud, of Beck & Gubbrud, Alcester, for porponents and appellants.

James R. Adams, Sacramento, Cal., John H. Davidson, Jr., Vermillion, for contestants and respondents.

WINANS, Justice. *

This is an appeal from an order denying probate of an olographic will. Proponents dispute the findings of the trial court on the questions of testamentary intent and testamentary capacity. We reverse.

Proponents Richard and Cornelia Osterkamp petitioned to probate the olographic will of Carolyn G. Nelson in circuit court. Constestants, heirs at law of the decedent, filed in opposition to the probate, alleging that the instrument submitted was not in fact or in law a will. They also alleged that the decedent lacked the required testamentary capacity at the time the will was executed because she was under the influence of intoxicating liquor. After a hearing on these questions, the trial court found that the writing was not testamentary in character, was not executed with testamentary intent, and the decedent lacked the testamentary capacity essential to a valid will. Proponents appeal.

Carolyn G. Nelson was a resident of Vermillion, South Dakota. The Osterkamps were longstanding friends of the decedent. Cornelia did housework for the decedent, starting in 1955 and continuing until the early 1960's. The couple remained on friendly terms with the decedent until the time of her demise, December 25, 1974. 1

On April 23, 1959, the decedent arrived at the Osterkamp home and requested that they accompany her to the Vermillion airport. She wanted the couple to drive her car back to town and to check her mail during her absence. They agreed and Mrs. Nelson had lunch with the Osterkamps prior to her departure. After lunch, Mrs. Nelson, accompanied by Cornelia, drove her car to the Vermillion airport, Mr. Osterkamp followed in his vehicle.

Mrs. Nelson was about to board the small airplane when she told the pilot, George Nachtman, that she would not get on the plane without making a will. She returned to the airport office where she wrote the purported will. Mrs. Nelson then took the document outside, walked over to Cornelia, and put it into the latter's purse, telling Cornelia that it was her will and instructed her to keep it. Mrs. Nelson then boarded the plane and left. The document remained in the custody of the Osterkamps until it was offered for probate on January 8, 1975.

The pertinent part of the document reads: 2

'4--23--59

To you--

Cornie and Richard Ostercamp (sic) my all and may all to you

'Carolyn G. Nelson'

There is no question that the document is valid as an olographic will under SDCL 29--2--8. It is entirely written and signed in the decedent's handwriting and it is dated. Its validity is challenged however, in the context of lack of testamentary intent and testamentary capacity.

We will not disturb the findings of the trial court unless clearly erroneous. We approach that standard to decide whether in light of the entire evidence we are left with a definite and firm conviction that the trial court was mistaken in not admitting the document to probate as the olographic will of Carolyn G. Nelson.

To be valid a will must be executed with testamentary intent and must be testamentary in character. 'Whether an instrument is testamentary in character is dependent upon the intention of the alleged testator, and it follows that each case must be considered separately on its own facts. This intention must be determined in the light of the words used in the writing, and any extraneous circumstances bearing upon the question of intention.' In re Zech's Estate, 1945, 70 S.D. 622, 20 N.W.2d 229, 231.

The extraneous circumstances admissible to show intent include the oral declarations of the decedent. In re Congdon's Estate, 1952, 74 S.D. 306, 51 N.W.2d 877; Scott v. Liechti, 1944, 70 S.D. 89, 15 N.W.2d 1; SDCL 30--15--7. See also In Re Sargavak's Estate, 1950, 35 Cal.2d 93, 216 P.2d 850; In Re Lampkin's Estate, 1962, 203 Cal.App.2d 374, 21 Cal.Rptr. 513.

The burden of proving testamentary intent is on the proponent. Proponent must show not that the decedent realized she was making a will but that she intended the document to be a revocable disposition of the property, effective upon her death. In Re Estate of Wolfe, 1968, 260 Cal.App.2d 587, 67 Cal.Rptr. 297. While the decedent's intention is controlling, the intent must be apparent from the writing and the circumstances surrounding its execution, the will cannot arise from the intent to make one alone. In re Hurley's Estate, 61 S.D. 233, 248 N.W. 194; Poole v. Starke, 1959, Tex.Civ.App., 324 S.W.2d 234.

The writing must also be of a testamentary character to constitute a valid will. This requirement is satisfied if the writing makes a disposition of property after death. Once again, this is a process of determining the decedent's intention. In re Vasgaard's Estate, 1934, 62 S.D. 421, 253 N.W. 453. If through interpretation of the writing the intent is clear from the words used, in light of the surrounding circumstances, that intent controls. 3 If after the process of interpretation doubt remains as to the decedent's intent, the language used and the circumstances surrounding the execution of the writing will again be examined in light of pertinent rules of construction. In re Burns' Estate, 1960, 78 S.D. 223, 100 N.W.2d 399; Briggs v. Briggs, 1950, 73 S.D. 500, 45 N.W.2d 62.

With this myriad of rules in mind, we turn to the evidence expressive of decedent's intent. It should be borne in mind that these events transpired almost twenty years prior to the hearing. Testimony shows that the decedent expressed a fear of flying on her way to the airport. Upon arrival she told the pilot she would not get on the plane without making a will. She then returned to the airport office and wrote the document produced for probate on the back of a time sheet. She had two witnesses sign the document. The decedent then took the writing to Cornelia Osterkamp, identified it as her will, and told her to keep it. She then boarded the plane.

The writing itself must be consulted to ascertain its testamentary character. A fair construction must reveal an intent to pass property at death. It is not necessary that technical words be used to make a disposition of property. SDCL 29--5--13. Words are to be taken in their ordinary, grammatical sense, SDCL 29--5--11, and an interpretation preventing total intestacy is preferred. SDCL 29--5--10.

Although the words used to express the decedent's intent are not a model of grammatical astuteness, in light of the various statutory presumptions we find that a fair reading of those words indicates a desire to pass property at death. It is clear who is to take by virtue of the writing--the Osterkamps. It is also fairly obvious what is to be taken: 'my all' is certainly a disposition of all of her property. What the trial court found lacking were words of disposition. It is true that the...

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  • King's Estate, Matter of
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    ...the duty of the tenants to pay a portion of the taxes of the estate is ambiguous and must be construed, citing Matter of Estate of Nelson, S.D., 250 N.W.2d 286. They urge application of the rules found in In re Burns' Estate, 78 S.D. 223, 100 N.W.2d 399. Respondents assert that there is no ......
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    ...Where a will is ambiguous on its face, such extrinsic evidence is admissible to establish the intent of the testator. In re Estate of Nelson, 250 N.W.2d 286, 288 (S.D.1977); In re Estate of King 278 N.W.2d 171, 173 ¶28 People do not go to a lawyer to have a will drawn with the idea that the......
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    ...2002 SD 142, ¶ 16, 654 N.W.2d at 210 (quoting In re Estate of Klauzer, 2000 SD 7, 9, 604 N.W.2d 474, 477 (quoting In re Estate of Nelson, 250 N.W.2d 286, 288 (S.D.1977))). Testamentary [¶ 9.] In granting the sons an option to purchase, Testator's will describes the option price in terms of ......
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