224 N.W. 942 | S.D. | 1929
This is an appeal from a judgment reversing a judgment of the county court of Fall River county, and setting aside what purports to be the last will and testament of Anna C. Brown, deceased. The property involved consisted of a small house in the city of Hot Springs, some $200 or $300 in money, and a small amount of personal property. The contest is between a sister of the deceased who is named as the beneficiary under the will, and John Brown, husband, and Ijillie Greenlee, an adopted daughter of the deceased, who claim the property as heirs at law of the decedent.
The will was denied probate by the circuit court on the sole ground that testatrix did' not have sufficient mental capacity to make a disposition of her property at the time the will was executed.
The evidence shows that for many years prior to her death Mrs. Brown lived practically alone and supported herself by working as a laundress. About the first of .September, 1923, she became afflicted with pneumonia. She sent for Mrs. C. M. Williams, a neighbor with whom- she had been acquainted for some 22 years. Mrs. Williams went to see her and did what she could fo-r her for a couple of days; then, in order that she might have better care, moved Mrs. Brown to her house. This was on Monday, the 10th
It is the claim of contestants that at the time of the execution of the will decedent had not sufficient mental capacity to' make an intelligent disposition of her property and that the will was not executed and witnessed in the manner required by statute, and upon these points the trial court made the following finding of fact: “V. That at the time the said instrument in writing, dated September 15, 1923, which instrument was at the trial of this Court identified as being marked 'Exhibit ‘A’ and which instrument was alleged by the proponents to be the East Will and Testament of said Anna C. Brown, was written by Mrs. ¡C. M. Williams, only seven hours before the death of Anna C. Brown, deceased, a'nd while in her last sickness, and in form executed at a time when the said Anna C. Brown was in a condition of coma, seriously ill, very weak and
We believe that this finding is not only unsupported by the evidence, but that it is contrary to the preponderance of the evidence. That the testator was very sick and weak physically cannot be questioned. While this fact is material, it is not con-trolling, so long as she had sufficient mental strength to make an intelligent disposition of her property. Upon this point the evidence showed that the decedent was a woman of at least average intelligence. One witness described her as being strong willed. 'When she realized that she could not recover, she expressed a desire to make a will. Mrs. Williams and Mrs. Wasson were present. She said she wanted to give her property to her sister, Sena Johnson, who resided at Pontiac, 111. She also said that she did not want her husband! or her adopted daughter, M'rs. Greenlee, to have any of it, and their names were mentioned in the will only because she thought it was necessary to leave them, something. Mrs. Williams made an outline of the will as 'Mrs. Brown gave her the directions, and it is not claimed that at that time she was not in the full use of her mental faculties. M'rs. William’s then went to the hospital offiice and prepared the will. How long she was gone the record does not show, but when she returned with the will prepared as it now appears in the record, it was read over to' Mrs. Brown in the presence of Mrs. Wasson and Dr. Rogers, and it is not claimed by either of them that the will as so read was not just as d'ecedent had directed that it should be. Mirs. Williams testified that when she read the will to Mrs. Brown she said, “That is good, it is all right,” or words to that effect. She then held -Mrs. Brown’s arm while she signed the will.
Mrs. Wasson testified as follows: “I was summoned to the Sister’s Hospital in Hot Springs on September 15, 1923. Mrs.
A very severe cross-examination failed to change or modify this woman’s testimony in any -manner. None of her testimony was disputed and no attempt was made to impeach her. Mrs. Brown told Mrs. Wasson and Mrs. Williams she had1 some money in- a trunk in her house and asked them to-get it and take care of it. After the will was signed, they went to the house, where they found a small amount of money and a certificate of deposit for something over $200. They took this back to- Mrs. Brown and she turned it over to Mrs. Wasson. Believing they needed written authority from Mrs. Brown, they prepared and she signed Exhibit I, which reads as follows: “Hot Springs, S'. D., Sept. 15, 1923. This is to certify that all money, Eiberty Bonds, cash or papers and- belongings of Mrs. Anna C. Brown are to be turned over to Mrs. D. W. Wasson. Signed! by Anna C. Brown: Witness Miss Rochford, Mrs. C. M. Williams, C. M. X.”
This paper was signed by Mrs. Brown an hour or more after the will was signed, and it is not contended- that she was not in the full use of her mental faculties at that time.
On behalf of contestants; various witnesses testified that at different times prior to her death she had talked about her property and who was to> have it after she was gone; that on those occasions she had said that it was to go' to Mrs. Greenlee, her
It is argued by the contestants that it was unnatural that she should leave her property to' her sister in preference to her husand and daughter. In view of circumstances shown by the record, it does not seem to us to be either unnatural or unusual that she should leave her property to her sister in preference to her husband and Mrs. Greenlee. The evidence shows.that this sister, who is named in the will, was very old, in poor health, and in indigent circumstances. There does not appear to have been -any bond of affection between either herself and1 her husband or Mrs. Green-lee. She and her husband: had not lived together for 20 years. He lived on a ranch out in the country, while she lived in town. During this time she supported herself and accumulated the little property she left by taking in washing. The evidence shows that he was in town and visited her while -she was at Mrs. Williams, during the week just prior to her death. "He remained there but a short time, when he went home. He testified that she sent him out to get a load of wood, but he did not take in a load of wood, nor did he go back to see her nor make any inquiries as to- her condition or give himself any concern whatever in regard to her until after her death.
■■ Mrs. Greenlee was married and lived in Rapid City. Whether she knew of her mother’s sickness before she went to the hospital the record does not show, but she was notified by telephone during the afternoon of the 15th that her mother was sick and at the hospital. At that time she could have taken the train and been with her mother in a very short time, but instead of doing that she telegraphed to other parties in Hot Springs for a detailed report on her mother’s condition, and before she received a reply to her telegram, the train for Hot Springs had gone, and her mother’s condition was. not a matter of sufficient concern to' her to prompt her to go by private conveyance.
■Helen Rochford testified on behalf of the contestants. She was the nurse in-care of Mrs. Brown the night of September 15th.
A very persistent effort is made by contestants’ counsel to belittle the testimony of "the witnesses Mrs. Wasson and Mrs. Williams. They are referred to repeatedly as interested witnesses. After a careful examination of the testimony of these witnesses, we fail to find anything that warrants this charge. Neither of them are interested in any manner or to any extent. Their testimony shows them to have befen perfectly frank when on the stand, and bears the impress of truthfulness. The characterization of these witnesses as interested witnesses is not only unfair to them, but unwarranted by the facts.
Upon the entire record we are of the opinion that the evidence greatly preponderates in favor of the proponent, and that the will was properly admitted to probate by the county court.
The judgment and- order appealed from are reversed.