29 S.D. 1 | S.D. | 1912
On the 22d of December, 1904, Mary J. Bum-garner, a resident of Kingsbury county, in this state, made a will, devising her property, real and personal, to the National Spiritualists’ Association of the United States, with headquarters at Washington, D. C.; said property, or the proceeds thereof, to be used by said association for spiritualist work. On the 26th day of March, 1908, she was adjudged incompetent by the county court of Kingsbury county, in a guardianship proceeding- in which the plaintiff F. M. Andrews was appointed guardian of her estate. On the 8th day of February, 1909, she was adjudged insane by the commissioners of insanity of Kingsbury county and committed to the Hospital for the Insane at Yankton, where she remained until her decease, February 25, 1910. She left surviving her as next of kin a sister, Mrs. Irwin, one of the plaintiffs in this action. On the 24th of March, 1910, the heirs, Mrs. Irwin, and her husband joined in a conveyance of a quarter section of land in Kingsbury county, which is the subject of this litigation, to the former guardian, Frank M. Andrews. Mrs. Irwin and Andrews join as plaintiffs in this action. The defendant Sarah B. Eattin is the executrix of the last will of Mary G.
Appellant’s brief wholly fails to conform to the requirements of chapter 15, Laws of 1911, in that it does not contain a statement of the facts or of the assignments of error, nor of the proceedings at the trial, essential to an understanding of the questions sought to be reviewed on this appeal. The brief contains only allusions and references to certain portions of the bill of exceptions, where such matters are supposed to be found. This practice will not be recognized by this court, but, as indicated in one of our recent decisions, because of the unsettled condition of the practice under the provisions of chapter 15, Laws of 1911, we shall not refuse to consider appeals already taken without a proper compliance with the law. We shall therefore consider the questions presented by the record as before us on this appeal.
The case was tried to the court, without a jury, on the sole issue of testamentary capacity of the deceased, and findings of
Precisely the same rule is applicable under, section 463, Code of Civil Procedure, which provides that questions of fact, decided upon trials by the court or by referee, may be reviewed in the appellate court when exceptions to the findings of fact have been duly taken by either party and returned. Where the sufficiency of the evidence to sustain the findings of the trial court is to be reviewed upon exceptions to the finding, such exceptions must specify the particulars in which the evidence is insufficient to sus
.Certain of the assignments also challenge the competency of evidence received at the trial over appellant’s objections. We have carefully examined these assignments, and are satisfied none of them constitute reversible error.
The only remaining question before us is whether the judgment- is sustained by the findings of fact. The issue tried was as to the testamentary capacity of the deceased at the time of the execution of the will. The findings of the trial court are as follows.:
“(4) That at the time of the execution of the said purported will, the said Mary G, Bumgarner was a person of unsound mind, mentally and physically decrepit, and incapable of rationally-understanding or comprehending her relative duties and obligations toward society or relatives or friends, and unable to form or hold a rational desire regarding the disposition of her property, by will or otherwise.
“(5) That at the time of the execution of the said purported will, and long prior thereto, the said Mary G. Bumgarner was an insane person, and was then and there the victim of -various and divers insane delusions, and that the testamentary disposition of her property, attempted to be made in the said will, was controlled, governed, and induced by the said insane delusions of the testatrix.
cc(6) That at the time of the execution of said purported will, and for several years prior thereto, the said Mary G. Bumgarner*8 was possessed of the belief that she had frequent and continual communications with departed spirits, and that the said spirits should and did give to her directions regarding all her actions in the ordinary affairs of life, and that she was obliged to and did follow the directions supposed by her to have been given by the said guiding spirits. That she was further possessed of the belief, during all of said times, that she had been directed by the said guiding spirits to give and bequeath all her property at death to the National Spiritualists’ Association of the United States, which said association is named as the sole devisee in said purported will, and that the said devise was made because of her belief that it was necessary for her to comply with the supposed directions of said departed spirits. That by reason of the said . belief the said testatrix did not execute the said purported will as her free and voluntary act, but as the result of the inducement and coercion of the said departed spirits, and that the said belief operated as duress and undue influence upon said testatrix, and that the execution of said will was controlled, and the beneficiary therein directed, through the duress and undue influence upon testatrix of the supposed departed spirits, as above set forth, and that said beneficiary would not have been named but for the supposed direction of the said departed spirits.”
Appellant’s counsel concedes that, if deceased had testamentary capacity to make the will in issue, there would be absolutely no grounds to support any allegation of undue influence.
In McClary v. Stull, 44 Neb. 175, 62 N. W. 501, the court says: “ ‘Law/ it is said, ‘is of the earth, earthy/ and that spirit wills are too celestial for cognizance by earthly tribunals — a proposition readily conceded. And yet the courts have not assumed to deny to spirits of the departed the privilege of holding communion with those of their friends who are still in the flesh, so long as they do not interfere with vested rights, or by means of undue inñuence seek to- prejudice the interest of persons still within our jurisdiction
In re Randall, 99 Me. 396, 59 Atl. 552, the court says: “Some persons believe that they have communications from and interviews with the spirits of deceased persons. This may be a delusion, and is so regarded by many; but, unless such supposed communications control the disposition of property, the believer in them is not thereby rendered incompetent to make a valid will.”
In La Bau v. Vanderbilt, 3 Redf. Sur. (N. Y.) 384, the court says: “The evidence of the decedent’s belief in modern spiritualism was not admissible as tending to show his mental unsoundness, unless it should appear that the will or codicil was an offspring of that delusion.”
In Rice v. Rice, 53 Mich. 432, 19 N. W. 132, it is held that delusions which are not connected with or have no effect upon the testamentary act are not sufficient to invalidate a will. Ramsdell v. Ramsdell, 128 Mich. 110, 87 N. W. 81, Chambers v. Brady, 100 Iowa, 622, 69 N. W. 1015, and In re Motz’s Estate, 136 Cal. 558, 69 Pac. 294, sustain this view.
In O’Dell v. Goff, 149 Mich. 152, 112 N. W. 736, 10 L. R. A. (N. S.) 989, 119 Am. St. Rep. 662, the court says: “One accepts his religious faith on evidence that is satisfactory to his mind. A court of law will never inquire whether that faith is sound or unsound. It does not possess* the machinery for executing such an undertaking. It will content itself with saying— and that is sufficient for the purposes of this case — that one’s
We are clearly of opinion that the findings of the trial court sustain the conclusions that the testatrix was not of sound and disposing mind at the time of the execution of the will, and that the same was not her free, voluntary, and conscious act.
The judgment of the trial court is affirmed.