17 S.D. 465 | S.D. | 1903
This is an appeal from the judgment of the circuit court reversing the judgment of the county court refusing to admit to probate a w,ill. The facts necessary to a proper understanding of the questions presented on this appeal will be briefly stated: One Bella Halde, by her maiden name of Bella Cormack, made her last will and testament, by which she bequeathed to Ann Cassidy the sum of $300, and to Dan Cassidy the sum of $200, and the balance of her' estate to Mary Elsie Halde, her only child, of the age of about eight years, and appointed the said Dan Cassidy as guardian of the person and estate of the said child, and named the respondent' herein, Prank D. Schultz, as executor of the said will. This will was executed on the 22nd day of May, 1901, and shortly thereafter the said Bella Halde departed this life. The said Schultz, as executor, presented the said will to the county court for probate, and upon the day fixed for hearing the same the contestant, Nikolaus Halde, filed a protest, in which he averred, in substance, that Mary Elsie Halde, named in 'the said will, was the lawful issue of the contestant and the testatrix, Bella Halde; that the said Bella Halde at the time of • making the said will was of unsound mind and memory, and that she was improperly influenced to make
It-is contended by the appellant (1) -that the court erred in denying the the motion to dismiss the appeal taken by the executor from the county court to the circuitoourt; (2)that the court erred in finding that the testatrix, Bella Halde, was the Of sound.mind and disposing memory at the time she executed said will; (3) that the court erred in finding that the said'testa trix was not -unduly- influenced in the execution of-the said will by Ann and Dan Cassidy, legatees named in the said will; and (4) that the court erred in permitting certain witnesses on the part of said executor to give their opinions-as to the'mental condition of the said testatrix'at or about the time of the making of the said will.
It is insisted on the part of the respondent that the court’s .findings are fully sustained by the evidence,' and that his rulings are correct, but, if they were not so, that the appellant was not prejudiced, and could not complain, for the reason that by the undisputed evidence it was shown thathehad no interest in-the estate of Bella Halde, deceased, and that he was
, ■ The first question, as we have seen, is, did the court err in denying the motion to dismiss the appeal from the county court to the circuit court upon, the ground that the respondent, Schultz, was not authorized, as executor, to take an appeal? Section 345 of the Probate Code, provides: “An appeal may be taken to the circuit court from , a judgment or oder of the county court *. * * (2) admitting or refusing to admit a will to probate. * * *” And section 346 provides: “Any party aggrieved-may appeal as aforesaid except where the decree or order of which he complains was made upon his default. ’ ’ The • respondent, being named as executor in the will, necessarily . was aggrieved by the judgment of the county court adjudging the will invalid.- He had a direct interest in having the will sustained, and the same probated. This was virtually settled in the case of In re Olson, 10 S. D. 648, 75 N. W. 203, in which this, court held that a guardian removed by order of the county court was authorized to appeal, in connection with the heirs, from such order to the -circuit court. The same rule would undoubtedly apply to an executor removed by the county court, and certainly á denial of his right to act as executor, holding 'the will invalid, and refusing to admit it to probate, would ' equally entitle him to an appeal. The decision of the county court in this case not only affected the heirs, but directly affected the executor; ' and we are clearly of the opinion that'he is-a person aggrieved, within the meaning of the section above quoted, and that the court- therefore properly denied the motion to dismiss the appeal. '
It is 'further contended by the appellant that the court erred in permitting non-expert witnesses to give their opinion as to the mental condition of the testatrix at about the time she executed her will. That the court did not err in admitting this evidence may be regarded as settled law in this state, since the decision of this court in State v. Leehman, 2 S. D. 171, 49 N. W. 3. In that case the court said: “If the question presented and the ruling of the court were as indicated by counsel’s brief, it would probably be held to be error, for it seems to be now well settled in nearly all the states that a non-expert witness will be allowed to express his opinion as to the mental condition of a person after having stated the facts upon which such opinion is based. People v. Conroy, 97 N. Y. 62: State v. Pennyman, 68 Iowa 216, 26 N. W. 82; Territory v. Hart (Mont.) 17 Pac. 718; Webb v. State, 5 Tex. App. 608. Hardy v. Merrill, 56 N. H. 227, 22 Am. Rep. 441; State v. Klinger, 46 Mo. 228. ’ ’
But in any view the decision of the trial court was clearly
What relation the father sustains to his child after a divorce in favor of the wife on the ground of his failure, to support her is not entirely clear. The relation existing, between parents and children while the marriage relation exists is clearly-defined by sections 107 to 127, inclusive-,'of the Revised Civil Code,- • By section 111 it is provided'that the father of the minor child- is entitled to its custody, services, and earnings, and if .the father be dead, or be unable or refuse to take- the custody, or has abandoned his family, the motheb is entitled' there'to. By'sectióú 114 it is provided that - the parent, as such, lias'no control over the property of the child. And secti'on‘127 provides that the Husband and father, as' such, has no rights superior to those of the wife and mother in regard to the care, custpdy, education and control of the children of the marriage, while such husband and wife live separately and apart from each.other; and the circuit court is authorized, as aforesaid, in such a case, to make such regulations-in regard to the minor children as the circumstancesmay require. It will thus be seen that the father, as such, even in case there has beeh no di
The judgment of the circuit court, and order denying a new trial, are affirmed.