Nelson's Estate, Matter of, No. 11882

• Court: South Dakota Supreme Court
• Writing for the Court: WINANS; DUNN; WINANS
• Citation: 250 N.W.2d 286
• Decision Date: 10 February 1977
• Docket Number: No. 11882
• Parties: In 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.

Page 286

250 N.W.2d 286 In 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. No. 11882. Supreme Court of South Dakota. Feb. 10, 1977.
Rehearing Denied March 10, 1977.

Page 287

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.

Page 288

'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...