Peterson's Estate, In re

• Court: South Dakota Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Peterson's Estate, In re, 77 S.D. 525, 94 N.W.2d 661 (S.D. 1959)
• Decision Date: 13 February 1959
• Docket Number: No. 9730,9730
• Parties: In the Matter of the ESTATE of Alfred H. PETERSON, Deceased. Herman PETERSON, Plaintiff and Respondent, v. Carroll H. PETERSON, Executor of the Estate and Last Will and Testament of Alfred H. Peterson, Deceased, Clarence A. Peterson, Elva Huseman and Arthur R. Peterson, Defendants and appellants.

Page 661

94 N.W.2d 661

77 S.D. 525

In the Matter of the ESTATE of Alfred H. PETERSON, Deceased.

Herman PETERSON, Plaintiff and Respondent, v. Carroll H. PETERSON, Executor of the Estate and Last Will and Testament of Alfred H. Peterson, Deceased Clarence A. Peterson, Elva Huseman and Arthur R. Peterson, Defendants and appellants.

No. 9730.

Supreme Court of South Dakota.

Feb. 13, 1959.

Rehearing Denied March 16, 1959.

Davenport, Evans, Hurwitz & Smith, Sioux Falls, and William B. Quigley, Valentine, for defendants and appellants.

Dudley R. Herman, Gregory, for plaintiff and respondent.

PER CURIAM.

Alfred H. Peterson, a rancher in Todd County, died September 2, 1956, at the age of 88 years. He was survived by four sons--Herman, Almer, Clarence, Arthur, and one daughter--Elva Huseman. An instrument purporting to be decedent's last will, dated June 25, 1956, granted Herman the sum of $100. The remaining sizeable estate was left in approximately equal shares to the four other children. Herman contested probate of the will on the grounds that (1) decedent lacked testamentary capacity and (2) at the time of the execution of the will decedent was acting under the undue influence of the proponents Arthur Peterson, Elva Huseman, and Clarence Peterson. Although neither contestants nor proponents of the will, Almer Peterson and his wife testified in favor of the contestant.

At the trial in Circuit Court the issues were submitted to a jury which returned an advisory verdict in favor of contestant. The trial court entered findings of fact and conclusions of law to the effect that at the time of the execution of the will decedent was mentally incompetent and was acting under the undue influence of the proponents. The proponents appeal from the judgment cancelling the will.

The main issue on appeal is whether the evidence is sufficient to sustain the findings and conclusions of the trial court. ...