State v. Nieuwenhuis

• Decision Date: 27 July 1920
• Docket Number: 4639
• Citation: 178 N.W. 976,43 S.D. 198
• Parties: IN RE THE PROBATE OF THE ALLEGED WILL OF HENRY P. TJARKS, DECEASED, STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. ALBERT NIEUWENHUIS et al, Defendant and appellants.
• Court: South Dakota Supreme Court

43 S.D. 198

178 N.W. 976

IN RE THE PROBATE OF THE ALLEGED WILL OF HENRY P. TJARKS, DECEASED, STATE OF SOUTH DAKOTA, Plaintiff and respondent,

v.

ALBERT NIEUWENHUIS et al, Defendant and appellants. South Dakota Supreme Court Appeal from Circuit Court, Charles Mix County, SD Hon. Robert B. Tripp, Judge #4639--Reversed A. B. Beck, G. M. Caster, P. A. Hosford Attorneys for Appellants. Byron S. Payne, Attorney General E. R. Winans, Assistant Attorney General R. E. Willy, State's Attorney Attorneys for Respondents. Opinion filed July 27, 1920

McCOY, P. J.

On January 9, 1916, one Henry P. Tjarks, then a resident of Charles Mix county, died, without heirs, leaving an estate consisting of real and personal property situated in said county. On the 30th day of September, 1916, petition for probate of an alleged will of said deceased was filed in the county court, alleging, among other things, that the original will had been accidentally destroyed, but that an exact copy thereof was annexed to said petition. The persons named as devisees in said alleged will are nieces and nephew of the deceased wife of said alleged decedent, who died some years prior to his death. On the 10th day of November, 1916, the county court entered an order adjudging and decreeing that the will mentioned and referred to in said petition was the last will and testament of said Henry. P. Tjarks, deceased; that the same was duly executed as required by law; that said will was thereby allowed and admitted to probate; and that letters testamentary, with the will annexed, be issued to Albert Nieuwenhuis. On the 12th day of November, 1917, the said county court made and entered an order permitting the state of South Dakota to contest said will, and thereupon a contest petition was made and filed in said county court, alleging as grounds for said contest that said Tjarks died intestate, leaving an estate and leaving no issue, heir or heirs, surviving him to inherit said estate, and that said alleged- copy of will was not a copy of any will made by said Tjarks, but that the same was falsely and fraudulently manufactured and presented with intent and purpose of deceiving the court and defrauding the persons lawfully entitled to succeed to said estate. Said contest came on for hearing in the county court, and a judgment rendered sustaining said contest, from which judgment the proponents of the will appealed to the circuit court, where the judgment of the county court, upon a trial of the issues, was affirmed. Both in the county and circuit courts, by motion and demurrer, the proponents made objection to the jurisdiction of said courts to hear and determine said contest on the ground that the state of South Dakota, contestant therein, was not a party in interest authorized by law to bring and maintain said contest. The rulings of the circuit court in overruling said motion and demurrer are assigned as error.

Appellants contend that the admission of a will to probate in no way affects the rights of the state, that the remedy of the state to protect its rights in such cases, if any it has, is to proceed under the provisions of section 3049-3059, inclusive, Rev. Code 1919, in the circuit court, and not by way of contest in the county court. The jurisdiction and authority to admit wills to probate is exclusively in the county court. A will contest pertains to and contests the legal right to probate the same. The power to declare escheats is exclusively in the circuit court under said sections 3049-3059. Proceedings in respect to the probate of wills are in the nature of actions in rem, and determine the status of the subject-matter, the will. Judgments admitting wills to probate are in the nature of judgments in rem, and while in force are conclusive, as to the due execution and validity of the will, upon all persons, upon all courts, and upon the "whole world." Schultz v. Schultz, 10 Grat. (Va.) 358, 60 AmDec 335, and note. Section 3237, Rev. Code 1919. In any action in the circuit court, under sections 3049-3059, by the state to declare an escheat of said property, the devisees under the will might offer in evidence the decree of the county court admitting such will to probate, and which decree would be conclusive upon the circuit court and against the state in such action. The state in such action to declare an escheat could not attack the decree admitting the will to probate, except on the ground of extrinsic fraud or mistake. We are of the view that the state is a party in interest within the meaning of section 3231, Rev. Code. 1919, which provides that where a will has been admitted to probate, any person interested therein may, at any time within one year after such probate, contest the same or the validity of the will. Section 718, Rev. Code 1919, gave the state its substantive interest. If Tjarks died intestate, never in fact having made a will, the state of South Dakota is interested in the said estate to the extent of full ownership therein. Although the state would not take such estate as an heir, or under the law of succession, but would take the same, if at all, under the statute, said section 718, in relation to escheats, still the interest which the state might so acquire would be equivalent and analogous to the interest which an heir might have for the purposes of contesting the probate and validity of a will. If a decree admitting a will to probate would be conclusive as against an heir, there is no apparent reason why the state with an equal interest would not likewise be concluded. Under these conditions of the law and the peculiar circumstances of this case, we are of the opinion that the state was a proper party contestant of said will.

The will in question is alleged to have been executed on the 23d day of October, 1915. Appellants on the trial in the circuit court, after having submitted the evidence of two subscribing witnesses, offered to prove by two other witnesses that in November, 1915, they had a conversation with said Tjarks, in which he stated to them that he had made a will favor of said devisees named in said alleged will. Appellants also offered to prove that on different occasions prior to the alleged execution of will said Tjarks in conversation stated to witnesses produced on the trial that he intended to make a will in favor of the said devisees. To all of these offers the respondent interposed the objections that the same were hearsay, irrelevant, and incompetent. The ruling of the court in sustaining said objections is now assigned as error. We are of the opinion that such evidence was admissible and that its rejection constitutes prejudicial error. 1 Wigmore's By. § 112, states the rule as follows:

"Where the issue is whether a will was executed, or whether a will was revoked, or whether a will was to have a certain tenor or provision (as where an alteration is at issue) the plan or design or prior intention of the testator is as relevant to show the doing or not doing of this alleged act as of any other act. The argument is Because he planned to make a will, or...