Petterson v. Imbsen
| Decision Date | 19 July 1923 |
| Docket Number | 5092. [*] |
| Citation | 194 N.W. 842,46 S.D. 540 |
| Parties | PETTERSON v. IMBSEN et al. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, McCook County; John T. Medin, Judge.
Proceedings by Beret Petterson against Jacob P. Imbsen and wife, to contest the will of Enger Margrete Engelsen. Judgment for contestant, and proponents appeal. Reversed.
Kirby Kirby & Kirby, of Sioux Falls, and Chas. H. McCay, of Salem for appellants.
R. M Sheild, of Salem, and Bogue & Bogue, of Parker, for respondent.
This appeal grows out of the contest of the last will and testament of one Enger Margrete Engelsen. The grounds on which the will is contested are mental incapacity to make a will and undue influence exercised over the testatrix by the beneficiaries named in the will. Judgment was for the contestant, and the proponents of the will appeal to this court.
The testatrix was a Norwegian by birth, and at the time of the execution of the will was 71 years of age. She had been twice married, but had never had any children, and at the time of making the will on December 8, 1914, her second husband had been dead something over four years. She came from Wisconsin to McCook county with her first husband some 40 years ago and settled on a quarter section of land on which she continued to live until the time of her death in 1918, and it is this same quarter section of land that is the bone of contention in this case. The beneficiaries, the defendants and appellants herein, are husband and wife, and the defendant Jacob Imbsen is a nephew of decedent's first husband. Decedent and defendants lived on neighboring farms all of the time since about 1883, until decedent's death in 1918 and during all that time were on very friendly and intimate terms.
The testatrix left as her sole heirs at law a brother, since deceased, and a sister, living in Norway and who is the contestant herein. During her residence in McCook county, decedent had in her household a boy known as Ennis Engelsen and a girl now known as Clara Moore, whom decedent reared from infancy.
The girl married when she was 16 years old and left home and never after appears to have given the testatrix any consideration whatever. The boy, Ennis, married when about 22 years old, and thereafter appears to have taken no interest in the welfare of the testatrix.
The will in question was executed under the following circumstances: Early in December, 1914, testatrix suffered a severe personal injury on her said farm. Ennis Engelsen, who with his wife, was then living on decedent's farm, immediately notified the defendants of said injury. They at once went to decedent and took her to their home, where they called a physician and cared for her as best they could until she was sufficiently recovered to return to her own home. Two days after decedent was taken to defendant's home, defendant Jacob Imbsen called at the office of a lawyer in Salem and told him that decedent wished him to come out to defendant's place and draw a will for her, but no suggestions were made by defendant as to the disposition that was to be made of the property. The lawyer told defendant to go home and find out what disposition decedent wished to make of her property and come back and tell him how the property was to be disposed of, and that he would then draw the will accordingly and take it out and let the testatrix execute it. Defendant did as directed and about the second day thereafter, returned and told the said lawyer how the testatrix wished to dispose of her property. The lawyer thereupon drew the will as directed and took it out to defendant's home, where it was read over and explained to testatrix, and by her signed in the presence of three competent witnesses.
It is not contended that the will was not executed with due formality or that it was not in all respects legally executed. But contestant claims that the circumstances were such as to show that defendants exercised undue influence over the decedent and induced her to make a will by which all her property was left to them. This contention is not supported by the evidence. It is true decedent was in defendant's house. She was badly injured; she appears to have entertained some doubt as to whether she would recover from her injuries, and was wholly dependent on defendants for care and attention during her helplessness. It is also true that for some considerable time prior to the injury defendant Imbsen had been looking after decedent's business and exercising general supervision over her farm. But there is no evidence whatever that defendants ever took advantage of their opportunity or in any manner tried to influence decedent in the disposition of her property or asked her to make a will or to leave her property to them. No doubt she felt very grateful to them for their kindness to her in her hour of trouble.
The burden of proving undue influence is on the contestant. Johnson v. Shaver, 41 S.D. 585, 172 N.W. 676. But opportunity alone is not sufficient to warrant an inference of undue influence. Gillette v. McLaughlin, 44 S.D. 499, 184 N.W. 277.
Upon the question of testamentary capacity of the testatrix, we are satisfied that the findings of the trial court are contrary to the clear preponderance of the evidence. The evidence on this question is very voluminous, and space forbids a review of it in its entirety. The general character and force of this evidence may be shown by the testimony of any one of several witnesses. G. P. Winberg, a witness for contestant, testified on cross-examination as follows:
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