Pierce's Estate, Matter of, 12785

• Decision Date: 23 December 1980
• Docket Number: No. 12785,12785
• Parties: In the Matter of the ESTATE of William PIERCE, Deceased.
• Court: South Dakota Supreme Court

Page 816

299 N.W.2d 816

In the Matter of the ESTATE of William PIERCE, Deceased.

No. 12785.

Supreme Court of South Dakota.

Argued Jan. 23, 1980.

Decided Dec. 23, 1980.

Michael L. Luce of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for contestant and appellant.

LeRoy S. Lassegard, Mitchell, for proponent and appellee.

Leonard E. Andera of Andera, Margadant & Erickson, Chamberlain, for beneficiaries and appellees.

GROSSHANS, Circuit Judge.

This is a will contest. The appeal follows the decision of the circuit court admitting the last will and testament of William Pierce to probate. We affirm.

William Pierce (decedent) passed away at a nursing home in White Lake, South Dakota, on December 4, 1978. He was eighty-nine years old. He had never married. Decedent was survived by his sister, Margaret Pierce, a nephew, Evan Jones, and a niece, Margaret Konechne, contestant and appellant herein.

Decedent and his sister, through natural family attrition over a period of fifty years, came into ownership of the bulk of their father's property in Brule County, including additions by inheritance from other siblings. They were very close and in later years were constantly together. They had close ties to their land and, except for the final months of decedent's life, lived together on their farm land about four miles south of Kimball.

Decedent's last will and testament was executed on August 14, 1978, almost four months before decedent's death of uremia due to arteriosclerosis. This was the only will decedent ever executed. The instrument, insofar as is material to this decision, disposed of decedent's estate as follows: the sum of $1,000 to the Catholic Church for masses; the sum of $200 to contestant; and the remainder left in trust for the use and benefit of decedent's sister during her life. Upon his sister's death, the remaining corpus of the trust was to be distributed as follows: a section of land to the Catholic Church; a quarter section of land to one Ralph L. Geppert; a quarter section of land to one Merlin Chmela; a quarter section of land to one Henry Hartung; and any remainder thereafter to be divided equally between Mr. Chmela and Mr. Hartung. Decedent specifically excluded his nephew and niece except for the $200 bequest. The value of decedent's estate was approximately $306,000.

Decedent held a strong faith in the Catholic religion. Apparently this was consistent with his upbringing as his father, Nicholas, Sr., bequeathed a sum of money for masses in his will in 1928. Messrs. Geppert, Chmela and Hartung were friends, neighbors and tenants of decedent. Contestant admitted that she and decedent were not particularly close. The record is replete with evidence dating back over a quarter of a century that decedent was not particularly fond of contestant.

Contestant argues that it is the undue influence of Mr. Hartung that should cause the will to be set aside. Mr. Hartung first became acquainted with decedent in the late 1940's and became a tenant of decedent in 1950. Over the years, Mr. Hartung became a close friend and confidant of decedent. He provided business counsel and assisted decedent and his sister in many ways, especially in later years when they were unable to do many things for themselves. He hauled groceries, took them to church, took them to the doctor when necessary, cleaned their ashes, fixed their fences, hauled fuel and water and generally did whatever was necessary for their well-being. Eventually, Mr. Hartung was involved in handling decedent's financial affairs by way of writing out checks for the payment of his bills. He also paid decedent's property taxes.

Mr. Hartung rented a portion of decedent's land under an oral agreement requiring Mr. Hartung to pay as rent an amount equal to the real estate taxes. He did not pay the taxes, but each year gave decedent his check for the amount required. Decedent refused to accept the checks and tore them up. Another portion of decedent's land was rented on a tenant share-crop arrangement. Decedent took his share of the crop each year.

Around Memorial Day of 1978, a friend of the family visited decedent and his sister at their home. She reported her observations to contestant, who became concerned about their living arrangements. Decedent was blind. The home had no water or indoor plumbing. Food was lying around the house, and flies were prevalent. Contestant searched out a lawyer and had a petition prepared seeking letters of guardianship over the persons and estates of decedent and his sister. The petitions alleged decedent and his sister to be mentally incompetent.

On June 15, 1978, contestant found decedent lying on the porch of his home. His sister had stayed with friends for the evening. Apparently decedent had been there all night. His clothes were messed and he was unable to get up by himself. Decedent was taken to the hospital in Mitchell.

At this time Mr. Hartung became aware of contestant's petition. He eventually contacted an attorney in Mitchell for decedent and made arrangements for an interview at the hospital. At this interview, decedent made known his feelings about contestant and his suspicions of her motives. Needless to say, he was upset. He felt that the guardianship action was being brought so that contestant could gain control of his property. At this interview, Mr. Hartung initiated an inquiry into what would happen to the decedent's property if he died intestate. Decedent made it known that he did not want contestant to receive any of his estate. Mr. Hartung advised that if this were the case, he could leave his estate "to the church or hospital or other organization." Mr. Hartung had been on the advisory council of the Catholic Church at Kimball for several years.

Decedent and his sister desired to have Mr. Hartung appointed guardian. On July 6, 1978, the circuit court, the Honorable Boyd McMurchie presiding, appointed Mr. Hartung and the First Mitchell National Bank as co-guardians on the basis of decedent's physical disabilities.

After letters of guardianship were issued, the Mitchell attorney continued to serve as the attorney for the guardianship. He also represented decedent and became the scrivener of the will at issue. When he became a witness at the trial, he properly withdrew from active participation in the case. The attorney arranged a meeting on August 10, 1978, at decedent's home with the co-guardians, the appraisers, and decedent and his sister. At this meeting, when the subject of wills came up, Mr. Hartung and the others absented themselves from the home. Margaret Pierce remained during the interview.

Decedent was primarily concerned about his sister. He wanted to assure that she would be taken care of. This concern was satisfied when the attorney explained the advantages of the trust. Decedent repeatedly stated that he did not want anything to go to contestant or his nephew. The attorney suggested that something should be left to contestant. Decedent finally agreed and decided upon the $200 bequest for contestant. He left nothing to his nephew because he had been gone since World War II, had not kept in touch, and did not need it. Decedent knew who his tenants were and generally which piece of real estate he wanted to leave to them.

Decedent had an appointment with his doctor in Mitchell set for August 14, 1978. The attorney made arrangements for the will to be executed on this occasion. All of the formalities requisite for the proper execution of a will were attendant on this occasion. Decedent's doctor was one of the witnesses to the will. He had treated decedent for about twelve years prior to the execution of the will. He testified that decedent was competent; he had his mind made up, knew exactly what he wanted, where he was, what was happening and how he wanted everything handled. The doctor testified that decedent had a will of iron and was not the type to be pushed very much.

The learned trial judge issued his memorandum opinion on March 14, 1979. Findings of fact and conclusions of law were signed on March 28, 1979. The findings and conclusions incorporated the memorandum opinion by reference. In its memorandum opinion, the trial court essentially found decedent to be mentally competent when the will was prepared and executed...