File No. 8207. | S.D. | Apr 14, 1939
This is an appeal from an order refusing to admit to probate what purports to be the last will and testament of Ernestine Bethke, deceased. The said will is set out in full in the findings of fact and appears regular on its face, and to have been regularly and properly executed in the presence of two competent witnesses.
The will was offered for probate by Esther Rosenwald Little, who is named as one of the beneficiaries of the will and is also named as the executrix of the said will.
Ernestine Bethke, the testator, appears to have been around 70 years of age at the time of the execution of the will. She was a German by birth; she had never attended school and could not read or write in any language and could speak only a little of very poor English. It was claimed, however, that she could write her name. Mrs. Little, the proponent of the will, claimed that the will *445 was drawn by Mr. Arthur Ewing, a lawyer at Madison, Minnesota, on the 2nd day of June, 1928, and that she was in an adjoining room in Mr. Ewing's office while the will was being prepared. This fact was disputed by evidence from which it might fairly be inferred that Mr. Ewing did not write the will. His testamony could have been very material, but he died between the time the will was executed and the time of the trial.
Mrs. Little testified that immediately after the will was drawn that she and the testator drove directly from Madison to Revillo, South Dakota, where after eating lunch she and her sister, Gertrude Rosenwald, her son Rodman, and the testator drove to Milbank. There they stopped in front of the building in which Mr. J.J. Eisenmenger, a lawyer in Milbank had his office. Mrs. Little took the will upstairs to Mr. Eisenmenger's office. He made some slight changes in the will and took it down to Mrs. Little's car. His stenographer, Miss R.M. Bernard, went with him. When they reached the car Mrs. Little informed them that the elderly lady in the car and who did not leave the car was Ernestine Bethke. Mr. Eisenmenger then asked her: "Do you want me to sign as a witness to this instrument?" She replied: "Ja, ja, my testament." Mr. Eisenmenger then signed the will and gave it to Miss Bernard, who also signed it. Neither of them was acquainted with Mrs. Bethke or knew anything about her except what Mrs. Little told them. There is no evidence to show that Mrs. Bethke ever read the will or heard it read or knew anything about its contents. The court found as a fact: "That said instrument set forth in the preceding paragraph was not signed and executed by the decedent, Ernestine Bethke, at Milbank, Grant county, South Dakota, on the 2nd day of June, 1928, and that said instrument is not the Last Will and Testament of the decedent, Ernestine Bethke; that said instrument was not published and declared to be her Last Will and Testament in the presence of J.J. Eisenmenger and R.M. Bernard, the subscribing witnesses thereto, and that said instrument was never read by the subscribing witnesses to the said Ernestine Bethke or by anyone in her presence and that said Ernestine Bethke had no knowledge of the contents thereof."
Whether we would have made the same finding under the evidence is not material. The finding certainly is not against the weight of the evidence and will not be disturbed by this Court. *446
In view of the above finding the will is void, further comment is unnecessary and the citation of authority is wholly superfluous.
The judgment and order appealed from is affirmed.
All the Judges concur.