Shabley's Estate, In re, 10795

• Decision Date: 07 September 1971
• Docket Number: No. 10795,10795
• Citation: 85 S.D. 692,189 N.W.2d 460
• Parties: In the Matter of the ESTATE of Frank SHABLEY, Deceased.
• Court: South Dakota Supreme Court

Page 460

189 N.W.2d 460

85 S.D. 692

In the Matter of the ESTATE of Frank SHABLEY, Deceased.

No. 10795.

Supreme Court of South Dakota.

Sept. 7, 1971.

Rehearing Denied Oct. 19, 1971.

Anderson & Hutchinson, Huron, for appellant.

Willy, Pruitt & Matthews, Sioux Falls, Roland Cutler, Wessington Springs, for respondent.

WINANS, Judge (on reassignment).

This is a will contest involving the will of Frank Shabley, a single man, who died on or about the 7th day of February, 1968, at the age of 90 years. He left an estate consisting principally of one quarter section of real estate located in Jerauld County, South Dakota. On February 15, 1968, Mrs. Genevieve Wahl, who along with her husband operated the Pheasant Hotel in Wessington Springs, South Dakota, petitioned the County Court of Jerauld County for probate of this last will and testament of said deceased, which is dated April 24, 1967, and that Letters Testamentary issue to her as the named executrix in said will. L. H. Rhodes, respondent herein, a nephew of the deceased, appeared in opposition and contested this will on the grounds of lack of testamentary capacity of the decedent and undue influence on the part of the sole beneficiary, Genevieve Wahl.

The decedent, on February 13, 1960, made a will in which he left his entire estate to a sister, three nieces and six nephews in equal shares. This will named the nephew, L. H. Rhodes, as executor and he also petitioned the County Court of Jerauld County for probate of this will which was contested by Genevieve Wahl on the grounds of undue influence, and that it had been revoked by the will of April 24, 1967. By stipulation the trial of such contested wills was consolidated. The County Court of Jerauld County upheld the will of April 24, 1967, which by its terms revoked all previous wills. From the county court decision Mr. Rhodes appealed to the circuit court on issues of both fact and law and again upon stipulation of counsel both matters were tried together to the court de novo in Wessington Springs on July 17, 1969. Also, by stipulation, the testimony taken in county court was admitted in circuit court and was supplemented by two depositions and oral testimony from a number of additional witnesses. The circuit court entered findings of fact and conclusions of law holding that the testator had testatmentary capacity on April 24, 1967, but reversed the county court on the question of undue influence and revoked and invalidated the will of April 24, 1967. From the judgment of the court denying probate Mrs. Wahl appeals to this court. There is no appeal from the finding that testator had testamentary capacity and this is, therefore, not an issue here. This court in the recent case of In re Estate of Hobelsberger, 1970, S.D., 181 N.W.2d 455, which was a will contest, stated:

'It was for the trial judge to select from the conflicting evidence that which he would believe. He, not this court, is the trier of the facts. * * * On review the successful party is entitled to the benefit of his version of the evidence, and of all favorable inferences fairly deducible therefrom. In re Blake's Estate, supra.

In this jurisdiction appellate review of findings of fact is now governed by SDCL 15--6--52(a). That section provides in part that:

'Finding of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.'

This quoted terminology came into our law as a part of Rule 52(a) of our 1966 Rules of Civil Procedure, which took it from Federal Rule 52(a). In adopting this portion of the Federal Rule it is presumed that we adopted it with the meaning previously given it by the United States Supreme Court. Melby v. Anderson, 64 S.D. 249, 266 N.W. 135. This was the view of the State Bar Committee which proposed these rules for adoption. See the paperback pamphlet of the rules printed and distributed by the West Publishing Company--Introduction, p. IV.

The United States Supreme Court in construing that language in United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746, and rehearing denied 333 U.S. 869, 68 S.Ct. 788, 92 L.Ed. 1147, said:

'A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'

See Barron & Holtzoff (Wright) Federal Practice and Procedure--Rules Edition, § 1133.'

The right to make a will and dispose of one's property is clearly a very important right, as expressed by this court in the following language in the case of In Re Rowland's Estate, 1945, 70 S.D. 149, 18 N.W.2d 290:

'An important right given by statute to every person of full age and of sound mind is the right to dispose of his property by will, within the limits fixed by statute, as he chooses. Johnson v. Shaver, 41 S.D. 585, 172 N.W. 676. This right, of course, must be exercised when the testatrix has testamentary capacity and is not subject to undue influence. Mere general influence, however strong or controlling, not brought to bear on the testamentary act, is not sufficient. In re Schaefer's Will, 207 Wis. 404, 241 N.W. 382; Mackall v. Mackall, 135 U.S. 167, 10 S.Ct. 705, 34 L.Ed. 84. Proof of mere opportunity to influence the mind of the testatrix, even though coupled with an interest or with a motive, is not sufficient. Gillette v. McLaughlin, 44 S.D. 499, 184 N.W. 277; Vassilos v. Arnold, 47 S.D. 147, 196 N.W. 545; Peterson v. Imbsen, 46 S.D. 540, 194 N.W. 842; In re Swanson's Estate, 54 S.D. 42, 222 N.W. 491; Tobin v. Nordness, 47 S.D. 255, 197 N.W. 783. Influence, to be undue, within the meaning of the law, must be of such a character as to destroy the free agency of the testatrix and substitute the will of another person for her own. In re Armstrong's Estate, 65 S.D. 233, 272 N.W. 799.'

The burden of proving undue influence is on the contestant. In re Metz' Estate, 78 S.D. 212, 100 N.W.2d 393, we held:

'The burden was on contestant to establish the undue influence of Herman Imel by a preponderance of the evidence. Ekern v. Erickson, 37 S.D. 300, 157 N.W. 1062. This burden was fulfilled to the satisfaction of the trial court. Therefore its finding of undue influence will not be disturbed unless it appears from the record there is a clear preponderance of the evidence against it. In re Peterson's Estate, 77 S.D. 525, 94 N.W.2d 661.'

In this will contest the contestant, L. H. Rhodes, accomplished this burden to the satisfaction of the judge of the circuit court on appeal from the district county court.

Appellant recognizes the rule of review which we have set forth, but urges that in this case the trial court's findings are not presumptively correct and asks the court to review the evidence as though presented in the first instance, citing State Automobile Casualty Underwriters v. Ruotsalainen, 1965, 81 S.D. 472, 136 N.W.2d 884. Appellant's position on this is stated in the following language:

'We are not unmindful of the well-established appellate rule that where the question presented by an appeal is the sufficiency of the evidence to support the trial court's findings, that such findings will not be disturbed unless they are contrary to the clear preponderance of the evidence. This rule has its basis and reason in the proposition that since the trial court heard and observed the witnesses and had opportunity to judge first-hand their credibility, it might better evaluate the weight to be given the testimony. However, we urge that on this appeal, the scope of appellate power is not so limited by this general rule, since, as a matter of fact, the trial court did not hear and see the majority of the witnesses and that for the most part the trial was had upon the cold record, consisting of depositions and the transcript of testimony taken upon trial before the County Court.'

In our review of the transcripts on the appeal it appears the parties stipulated in the trial de novo before the circuit court that the testimony taken on the trial before the district county court and reduced to writing by the reporter in the form of a transcript 'shall be taken and considered by this Court at this hearing with the same force and effect as if those witnesses would testify in open court on the witness stand.' In addition to such stipulation the circuit court did hear the oral testimony of seven witnesses which included the testimony of appellant herself and the testimony of the wife of the respondent. The additional evidence before the circuit court by oral testimony of witnesses, to some extent, concerned the physical and mental weaknesses of the testator. In Johnson v. Shaver, infra, we held that evidence of physical and mental weakness is always material upon the question of undue influence. Apparently it is thought to bear on the testator's susceptibility to such influence. The transcript of the oral testimony in circuit court consists of 92 pages, and the only depositions submitted to the circuit court are those of two doctors who testified to the decedent's mental capacity and it is noted that decedent's testamentary capacity is not an issue on this appeal. We think this clearly distinguishes this case from State Automobile Casualty Underwriter's, supra, because in the latter case all of the testimony supporting the court's findings was taken by deposition except for one witness. We conclude that under the circumstances of this will contest we must review the evidence under the rule announced in Estate of Hobelsberger, supra. This becomes important because in our opinion the circuit court might on the evidence have arrived at a contrary conclusion on both the question of mental competency and on the question of undue influence. As to the latter question it is noted that the county district court did make a contrary judgment.

In Johnson v. Shaver, 1919, 41...