Podgursky's Estate, Matter of

• Decision Date: 26 October 1978
• Docket Number: No. 12183,12183
• Parties: In the Matter of the ESTATE of Eugene J. PODGURSKY, Deceased. UNITED STATES of America, Contestant and Appellant, v. Glendon SORENSON and Gertrude Sorenson, Proponents and Respondents.
• Court: South Dakota Supreme Court

Page 52

271 N.W.2d 52

In the Matter of the ESTATE of Eugene J. PODGURSKY,

Deceased.

UNITED STATES of America, Contestant and Appellant, v. Glendon SORENSON and Gertrude Sorenson, Proponents and Respondents.

No. 12183.

Supreme Court of South Dakota.

Argued Feb. 15, 1978.

Decided Oct. 26, 1978.

Jeffrey L. Viken, Asst. U. S. Atty., Sioux Falls, for contestant and appellant; David V. Vrooman, U. S. Atty., Sioux Falls, on brief.

Terrence R. Quinn and Thomas E. Carr of Stephens, Quinn, Carr & Tschetter, Belle Fourche, for proponents and respondents.

BIEGELMEIER, Retired Justice. ^*

On March 10, 1976, proponents filed a petition for the probate of the Last Will and Testament of Eugene J. Podgursky, deceased. To that petition the United States of America, hereafter sometimes referred to as contestant, filed a "Complaint Contesting Will," alleging the deceased died on January 9, 1976, in the Veterans' Administration Hospital, Ft. Meade, South Dakota, and at the time of his death was unmarried and without heirs; that his estate consisted of funds derived from benefits payable under the laws administered by the Veterans' Administration of the United States and that under 38 U.S.C.A. § 3202(e) ¹ and SDCL 30-6-14, it was interested in said will and such estate.

Contestant further alleged that on the date of the will, and for a long time prior thereto, Podgursky was "incompetent to make a last will and testament because of unsoundness of mind and insanity." In addition to and in alternative to that claim, Contestant alleged the "will was not his free and voluntary act but was the product of duress and undue influence against the decedent" without naming Sorensons as the persons who had engaged in the duress or undue influence. The trial court entered findings of fact, conclusions of law and a judgment upholding the will and admitting it to probate. Contestant's appeal asserts the two grounds set out in its complaint, i. e., Podgursky's incompetence and undue influence.

Podgursky was born August 12, 1903, discharged from the U. S. Army on April 15, 1943, admitted to the Veterans' Administration Hospital at Ft. Custer, Michigan, in October, 1944, and transferred to the Veterans' Hospital, Ft. Meade, South Dakota, on June 15, 1960. The evidence showed that when veterans had improved enough while in the hospital so that they were receiving only custodial care they would be placed in foster homes. Under that plan, about one hundred veterans reached that status and were placed to live in private homes. Podgursky, who had earlier been living in another home, was placed in the Sorenson home in 1967. It was while he was living there that the will involved in this controversy was executed on March 8, 1974. A condensed statement of the evidence will indicate the questions involved in the appeal.

For the proponents, James Hood, a practicing attorney of Spearfish, South Dakota, testified he first met Podgursky when the latter came to his office with the Sorensons and another veteran in February, 1974, pursuant to an appointment; that he talked to Podgursky alone in his private office, and that he asked him his name and gathered from him that he wanted a will. Hood asked him if he had any relatives; Podgursky said he had only distant cousins in Russia, but he never heard from them, they never wrote him and he did not know their names or who they were. Hood asked Podgursky to whom he wanted to leave his property and he indicated the Sorensons, with whom he had been living. Podgursky indicated that he never had been married, had no children or other close friends so he wanted the property, whatever he had, to go to the Sorensons, who had been good to him. Asked about his property, he said he owned no real estate, only personal property. ² After this conference, which lasted about half an hour, an arrangement was made for another meeting for the execution of the will, which was to be prepared in the meantime. The date was fixed later by phone as March 8th, at which time Mrs. Sorenson drove Podgursky to Hood's office. Hood testified that it was his practice to present clients with a copy of the will and give them an opportunity to read it, a practice that he followed in the instant case. After Podgursky had looked at the will, Hood read it to him in full and asked him if he had any questions, to which Podgursky replied "no," and indicated that this is what he wanted and that he was ready to sign the will. Hood called in his secretary, and after Podgursky signed the will, Hood and his secretary signed it as witnesses. Hood had no interest in the will except his fee of $20 for preparing it; he knew Podgursky was a veteran and was under VA guardianship, as he was told to send his bill for his services to the guardian. The bill was sent to and paid to him by the guardian of Podgursky's estate, the American National Bank & Trust Company of Rapid City, the successor to which is named as executor of the will.

Crystal Marlyst, a secretary of the Hood law firm, testified regarding her conversations with Podgursky both times he was in the office; that at the second visit she read the will to him article by article explaining in simple terms what each one meant; that she thought he understood it; that she then took him into a private office, where Mr. Hood later called her in, again asked Podgursky if everything was satisfactory, to which the latter answered "yes"; that she believed Podgursky knew what he was doing, that he was making his last will and he understood it; that Mrs. Sorenson at all times remained in the reception room and did not say anything to Podgursky.

Contestant offered and the court admitted in evidence Podgursky's VA medical records. Dr. Herman, Chief of Psychiatry and Neurology at the Ft. Meade VA Hospital since 1959, was the first witness for contestant. He testified that he had read and reviewed these records in depth. The witness was asked the date and source of an entry prepared by another doctor in 1966 or 1967 covering 1,881 days Podgursky had been at Ft. Meade. It showed a principal diagnosis by that doctor of chronic schizophrenic reaction; attached to it was an addendum of July 18, 1967, showing the appointment of the bank as guardian. This record considered Podgursky "non employable and requiring constant supervision . . . (and) incompetent for VA purposes." A continuing general objection to the medical records and the opinions Dr. Herman drew from them was overruled and the doctor testified that a schizophrenic reaction was a serious mental disease; a few people get well, but those chronic do not and for practical purposes it is not curable. ³ A 1965 entry stated: "This veteran . . . is manageable with the newer . . . drugs. For better management his placement in a foster home is desired." Dr. Herman testified: "This means he has improved he is not showing the signs of schizophrenia as bad as he once did." July and September 1975 records indicated Podgursky could not understand what P. Chemotherapy was, nor could VA personnel get him to make treadmill tests; the patient was not mentally able to handle his own affairs and was "well handled on Trilafon . . . and presents no problem from the point of view of his schizophrenia."

The evidence then returned to many entries with earlier dates and some without dates. The witness testified he thought the veteran was on Trilafon, a narrow tranquilizer, anti-psychotic medication, for many years including 1973, 1974, and 1975. Trilafon helps in suppressing the manifestations of paranoia but the witness did not see it as curing Podgursky's ailment. ⁴ The July 1975 medical record included a statement that is recurrent throughout that record and in the testimony of Dr. Herman that the veteran "is considered incompetent for VA purposes." The direct examination by contestant's counsel includes the following question and answer:

Q. I note in there that there is a reference to incompetent for VA purposes. When I use that term do you mean the same thing? In other words, when you say incompetent do you mean incompetent for VA purposes, or would you explain what you mean by incompetent.

A. Incompetent for VA purposes is part of the larger incompetence realm. We are administratively restricted from indicating anything except for VA purposes, which is related to their handling of such funds as they may be getting from the VA. Other issues of competence would have to be specified in order to come up. (Emphasis supplied.)

Finally, when asked whether based upon his training and experience and the VA medical records he was able to form an opinion concerning Podgursky's mental competence on March 8, 1974, Dr. Herman answered, "My opinion is he was incompetent for VA purposes throughout that time." Contestant's counsel then tried to get this witness's "interpretation of (Podgursky's) being incompetent distinguishing it from incompetent for VA purposes." Proponents' objection to the question led to this exchange between the trial court and the witness:

The Court: . . . you've testified twice . . . that he was incompetent for VA purposes, is that correct?

A. Yes, your Honor. . . . That . . . is the intent of our statements in our record. We do not go any further than to say that this man is incompetent for VA purposes.

On cross-examination Dr. Herman testified that he had never examined Podgursky, nor was there testimony by any doctor who had seen or examined him.

The testimony of contestant's other two witnesses, a VA social worker and a VA attorney, as well as proponents' two VA social workers will be adverted to later in the opinion.

We will first set out the guidelines that govern the execution of wills, their admission to probate and our review of the findings of fact, conclusions of law and judgments of trial courts. SDCL 29-2-3 provides that every person of eighteen years and of sound mind may execute a will for the purpose of disposing of his estate. The court has held...