Thompson v. Thompson (In re Thompson's Estate)

• Decision Date: 25 August 1925
• Docket Number: Nos. 5415,5416.,s. 5415
• Citation: 48 S.D. 474,205 N.W. 47
• Parties: In re THOMPSON'S ESTATE. THOMPSON et al. v. THOMPSON. THOMPSON v. SAME.
• Court: South Dakota Supreme Court

48 S.D. 474

205 N.W. 47

In re THOMPSON'S ESTATE. THOMPSON et al.

v.THOMPSON.

THOMPSON

v.SAME.

Nos. 5415, 5416.

Supreme Court of South Dakota.

Aug. 25, 1925.

Appeal from Circuit Court, Minnehaha County; John T. Medin, Judge.

Proceeding by Anton Thompson and others to contest the will of Tobias Thompson, deceased, propounded by Ella Thompson, and action by Ella Thompson, as executrix of the will of Tobias Thompson, against Alfred Thompson. Judgment for proponent in will contest, and for plaintiff in other action, and contestants appeal in will contest, and defendant appeals in other action. Affirmed.Krause & Krause, of Dell Rapids, and E. B. Skinner, of Sioux Falls, for appellants.

Danforth & Barron, of Sioux Falls, for respondent.

CAMPBELL, J.

This is a consolidation by stipulation of two appeals. The controversy is between Ella Thompson, widow of Tobias Thompson, deceased, on the one side, and Anton Thompson, Martin Thompson, and Alfred Thompson, brothers of deceased, on the other. On September 24, 1918, deceased executed a will leaving all his property to his widow and naming her executrix without bonds. On June 24, 1921, deceased suffered a third paralytic stroke, whereof he died on July 19, 1921. It is the claim of the brothers that on June 24, 1921, decedent canceled and revoked his will of 1918 and made a final testamentary disposition of all his property by deed, assignment, indorsement, and transfer, deeding one piece of real estate to each of his three brothers, Anton, Martin and Alfred, deeding the remainder of his real estate to his wife, Ella, and assigning, indorsing, transferring, and delivering to her all his personal property. As to all the transactions of June 24, 1921, including the claimed revocation of the will and the claimed conveyances to the brothers, the widow, Ella Thompson, contends that these were not in fact the free acts of the decedent, but were procured from him without consideration and by undue influence, and at a time when by reason of his mental and physical condition he was utterly incompetent to revoke or cancel his will, execute a deed, or transact any business.

After the death of Tobias Thompson the widow offered the will of September 24, 1918, for probate, and before hearing thereon George J. Danforth was appointed special administrator of the estate of decedent, and as such special administrator immediately instituted three separate actions against the three brothers, Anton, Martin, and Alfred, to set aside the conveyances claimed to have been made to them on June 24, 1921. Before those actions were reached for trial in the circuit court, the county court of Minnehaha county had admitted the will to probate, and issued letters testamentary thereon to Ella Thompson over the contest and opposition of the three brothers, who claimed revocation. The contestants appealed to the circuit court. Ella Thompson as executrix was substituted as party plaintiff in lieu of George J. Danforth, special administrator, in the three actions pending against the three brothers, respectively, and there came up for trial at the same term of the circuit court for Minnehaha county the will contest appeal, wherein Ella Thompson was proponent and the three brothers, contestants, and the three actions to set aside deeds, wherein Ella Thompson as executrix was plaintif...