223 N.W. 41 | S.D. | 1929
Appellants are next of kin to Halleck Olson, deceased, and are contestants of an instrument offered for probate as bis will, while respondent is proponent of the will for probate and is executor and one of the principal beneficiaries under the will. The county court admitted the will to. probate and on appeal to the circuit court a trial was had before a jury, which returned a verdict in favor of the validity of the will. The court treated the verdict as advisory and made findings and conclusions supporting the will, and, from a judgment entered on such findings and conclusions and an order denying a new trial, the contestants appeal.
On the trial numerous objections were made by the attorneys on either side. Respondent’s objections, exceeding 120 in number, were all sustained but one; appellants’ objections, numbering about 30 in the aggregate, were all overruled. This does not necessarily indicate error on the part of the court in any of its rulings, but an examination of the record discloses that the learned trial court sustained many objections to, and excluded, evidence offered by appellant, and- invariably overruled similar objections to, and admitted, evidence of the same kind when offered on behalf of respondent.
The will was dated January 7, 1924, and was signed by the testator and attesting witnesses on January u. On July 8, 1924, a petition was filed in the county court asking for the appointment of respondent herein as guardian of the person and estate of Olson, on the ground that (by reason of old age, poor health, and loss and failure of mental capacity, he was incapable of protecting and looking after his property, and after a hearing had on due and proper notice, the county court found that Olson was, by reason of old age, poor health, and loss and failure of mental capacity, incapable of looking after his property, and by an order dated July 17, 1924, .appointed' respondent as guardian of Olson’s person and estate. Respondent as principal, with Fidelity & Casualty Company of Baltimore as surety, had, on July 12, 1924 executed
A. O. Krogh, one of the witnesses to- the will, had known the testator for 20 years, and on direct examination said that he was of sound mind always. On cross-examination, he said that he last saw Olson about 9 months or a year before his death. That was necessarily some months after tire guardian had been appointed for him. He was then asked if Olson’s condition was the same when he last saw him as when he signed the will. An objection that this was not proper cross-examination was sustained. It was clearly proper cross-examination for a witness who- had testified that deceased was of sound mind at the time he made the will to be asked if his condition when he signed the will was the same as his condition when the witness saw him at a time when he was under guardianship because mentally incompetent. A number of other questions along the same line were erroneously excluded.
After asking a number of questions tending to elicit that deceased, at and about the time of the execution of the will, was unable to tell the directions of one place from another in Aberdeen, with which he had been familiar for many years, all of which were excluded, plaintiff offered to show that the witness frequently had to direct the deceased to places in Aberdeen that had been familiar to him in the past. This was also excluded on the objection of defendant.
The deceased was a Swede and spoke a mixed ‘Swedish and Norwegian dialect, but could not read, write, nor speak English. The witnesses say that he could say a few words in English, enough to get by, but that was all. The only testimony as to- his knowledge of the contents of the will was given iby respondent. Respondent testified that deceased at different times had said to him that he wanted to make a will, and that respondent told him to go and see a lawyer. The testimony shows that the will was drawn by a lawyer, but there is no evidence'showing how 'deceased communicated to the lawyer what he desired the will to contain. It d'oes not appear that the lawyer knew the -Scandinavian dialect spoken
On cross-examination, he was asked how many times decedent had been to his office in the 3 years preceding the execution of the
Rev. Code, § 2714, provides that “A party to the record of any civil action or proceeding” may be examined! as a witness at the instance of the adverse party as if under cross-examination,
In First State Bank of Wood v. Anderson, 46 S. D. 104, 191 N. W. 339, it was held that plaintiff’s officers having been fully examined and cross-examined as witnesses for plaintiff, it was not prejudicial error for the court to refuse to allow such officers to be called for examination as adverse witnesses, there being nothing to indicate that the examination would be other -than a repetition of the cross-examination already in the record, but we cannot say that that situation exists here. Respondent was the only witness who gave any testimony indicating that deceased, who knew practically nothing of the language in which the will was drawn, had any knowledge of the contents of the will. Respondent had a large financial interest in sustaining the will. Contestants are relatives of the deceased who had been on good’ terms with him and had visited him on friendly terms much more frequently than the residuary legatees. One of them, his nephew, lived in Minneapolis, and decedent went to Minneapolis at different times and usually stayed with this nephew while in the city. He testified that the deceased last visited there between 3 and 4 years prior to his death, at which time he was in a hospital in Minneapolis and stayed with him 3 or 4 days after coming out of the hospital; that while there on this last occasion he talked frequently about making a will and made three attempts at drawing a will; that he wrote them out on sheets of common tablet paper without ending or signature, but simply mentioned different parties as beneficiaries; that he would leave these scraps of paper lying on the floor of his bedroom; that he did not pay anything for staying with this nephew; that he just came and was entertained there as a matter of friendship; and that they were on friendly terms all the time. On one occasion Olson, while at his home in Stratford, in Brown county, thought he was getting the influenza and wired his nephew to come out and see him. The nephew at once got on the train and came out, found that he was not sick, stayed a day and visited with him, and returned home. This nephew also testified that Olson was a man who could never do anything for himself; that they had to watch
Another of the contestants, also a nephew, testified that 19 years previous he had worked for decedent during two summers; that decedent’s wife always paid his wages and looked after all the business affairs, paid the threshing bills and taxes, and that all other business affairs 'were handled by her; that Olson did such work around the place as fixing fence, taking care of hogs and cows, helping with the milking and such like work, but that his wife managed the place; that Olson just did chores and things of that kind.
Another witness, also a nephew, testified that deceased visited with him the fall before he died', at his farm which was about 17 miles from. Olson’s own farm; that Olson then spoke about wanting to move down to this nephew’s place if he were able, and that he was with Olson the day before he died. Questions asked of this witness as to Olson’s mentality were objected to and sustained, and an offer to prove by this witness who had associated with him to some extent through many years that Olson was never fully mentally developed and at or about the time of the signing of this will was incompetent to make a will was objected to on the ground that no foundation had been shown upon which this witness might predicate an opinion as to decedent’s mental condition. The objection was sustained and the offer excluded. There was evidence that O'lson wanted to make a partial will disposing of only the specific legacies mentioned! in the will offered for probate, and that he desired to retain the rest of his property as long as he lived, but he was told by a banker to whom, he had mentioned this that he could not make a partial will. This was in the spring of 1923. He started talking about money matters, wanting to know how much money he had- in the bank, and, on being told that there was around-$6,000 or $7,000, wanted to know -what had become of the difference ¡between this and $12,000 that he thought he should have in the bank. He talked about making a will and the banker told him he would be glad to help him all he could, so they sat down and
On cross-examination, Falk testified that the reason he did not draw the will for Olson was because he wanted to make a partial will and keep the rest of his property, as he did not know how long he was going to live or if he would have enough, and asked Falk if he made a will if they (the beneficiaries?) could not come and take his property; that he came into the bank frequently and was quite a -bother to Falk, who once in a while would try to get out of his way when he saw him' coming because he was quite a nuisance, bothering about his property and 'his will.
We think, in view of the absence of any information in the record as to how this will came to be drafted or how the decedent came to change his intention with reference to respondent from the design to give him- $500, a few days before the will was drawn, to giving him a residuary interest of the value of approximately $10,000 by the terms of the will, and in view of the testimony as to
Respondent contends that plaintiffs were required to show what they expected to prove if they had been permitted to call respondent as an adverse witness, but this contention is untenable, for the very purpose of permitting a party to be called as an adverse witness is to enable the party calling him to probe for information that he does not have, and to ascertain whether the party so called has knowledge of any facts hearing upon the subject of inquiry which the party calling him does not know of. To require the party calling such adverse witness to state what he expects to prove by him would, in most cases, defeat the very purpose of the statute.
One of the witnesses for plaintiffs was Mrs. O. G. Dokken, who was a single woman named Josephine Collin until after Olson’s death. She was a niece of Olson’s wife, and for a period of 25 years had visited with the Olsons on the farm and in town every year, staying from 6 weeks to 3 months at a time. She came to them a few days before Mrs. Olson’s death and stayed, from then on for 2 years and 3 months, keeping house for Mr. Olson. She testified that he was forgetful and mentioned other peculiarities, such as his continually talking about a will; that on one occasion he got a piece of cardboard and cut it up into strips and put cord through the strips and said that he was going to hang them on the chairs; that he spoke about his tree claim and whom he wanted it to go to, and said he was going to mark it off so as to show who should have different parts of it; that on one occasion he said he had lost his money, some $65 or $70, and wanted her to help him find it; this was while his wife was lying sick abed; that after her death, while the witness was looking for some clothes in the bureau, she found a little brown book in which was the money; that on another occasion he said he had lost his pocketbook with $5 in it and could not find it, and after some searching she found it under the corner of the mattress in his bed; that he lost his watch a number of times the same way; that on another occasion she saw him looking for something between the house and barn, and he said that he had put 50 cents on the ground so that it would be safe while he went to the barn and, on coming back from the barn,
In vindication of the court’s ruling in striking out evidence about the disarranged clo-thing, respondent cites Hosmer’s Estate, 47 S. D. 147, 196 N. W. 545, and quotes therefrom as follows: “The condition of testatrix four hours after the will was executed
After having detailed the foregoing conduct on the part of Olson and having stated that, from what she had observed of his conduct, she would not say that he was insane on or about January 11, 1924, Mrs. Dokken was asked if she would say that he knew what property or money he had, to which an objection on the ground that it called for guesswork and a conclusion was sustained. 'She was then asked if on those days Olson’s mind was such that he could comprehend the extent of his property, to which a like objection was sustained. She was then asked if she thought that on January 11 he had sufficient mind to grasp the contents of the will, which was objected to as not a proper hypothetical question and because no foundation had' been laid therefor, which was sustained.
Without pursuing the examination further, it is sufficient to say that this witness and other witnesses for the plaintiffs, wlm had had quite extensive opportunity for observing the conduct and appearance of Olson, were precluded from giving their opinion as to his capacity to understand and comprehend the extent of his property and the nature of the contents of his will, while lay witnesses on behalf of respondent, who had far less opportunity for such observation, were permitted to give their opinion that he had such capacity.
A large part of the cross-examination of Mrs. Dokken was based upon the intimation that she had been promised a larger financial inducement for becoming a witness on behalf of plaintiffs
In State v. Caddy, 15 S. D. 167, 87 N. W. 927, 91 Am. St. Rep. 666, this court considered the divergence of authority upon the question of sustaining the .testimony of a witness by previous statements in harmony with such testimony, and, among other authorities cited, quoted from Glass v. Bennett, 89 Tenn. 481, 14 S. W. 1086, as follows: “The rule is, that when it is attempted to be established that the statement of a witness on oath is a recent fabrication,, or when it is sought to destroy the credit of the witness by proof of contradictory representations, evidence of his having given the same account of the matter at a time when no motive existed to misrepresent the facts ought to be received, because it naturally tends to inspire confidence in the sworn statement.” And this court adopted the rule of the case cited.
In 5 Jones’ Blue Book on Evidence, p. 294, § 870, it is said: “Where the counsel on the other side imputes to the witness a design to misrepresent, from some motive of interest or relationship, in order to repel such imputation it may be shown that the witness made a similar statement before the supposed motive existed, or before the motive of interest prompted him' to make a different statement of the facts.”
In 40 Cyc. 2760, is the following: “In some jurisdictions it is considered proper to show that a witness assailed by proof of inconsistent statements had- also made other prior statements consistent with his testimony; but the weight of authority is in support of the view that the witness cannot, in such casé, be sustained by
William Swartz, the tenant on Olson’s farm, testified that Olson used to come out to the place and try to fix up things, and that he frequently lost his tools; that he would come to the field where Swartz was working, a distance of from 80 rods to a mile,, to ask him to come and help him find his hammer or other tools that he had lost; that in the summer and fall of 1923 he talked with him several times about making a will, but was under the impression .that if he made a will they could come and take his property away from him; that in the spring of 1924 he told- him that he had not willed his tree claim to anybody; that Nelson never was on the place except once in the fall after he had been appointed guardian ; that in renting the place Swartz always dealt with Mrs. Olson, and that except on one occasion when Olson came out and tried to help divide the grain at threshing time, he did not conduct any business with Olson at all; that on the occasion of dividing the grain Olson triedl to keep track of the number of loads hauled away and had 50 loads marked in a book when, as a matter of fact, there were but 3.1 loads hauled off, as was shown by the tickets issued, and that while Olson thought there were over 50 loads, Swartz took the matter up with his wife and had no difficulty in settling with her on the basis of the tickets issued. As with other witnesses for plaintiffs, Swartz was asked a number of questions calling for his opinion as to the mental capacity of Olson about the time of the execution of the will, but all such questions were excluded on the objection of respondent that the witness was not competent to give an opinion on the subject.
After Olson’s death, on January 8, 1926, the will was read in the chambers of the county judge in the courthouse, respondent and others being present. Henry Locken, a witness who was present at the reading, testified that respondent read the will out loud and
On cross-examination of the witness Falk, plaintiffs endeavored to show by various questions that on this occasion of the reading of the will respondent had said to Falk that he knew nothing of the contents of this will until after the will had been opened. All such questions were excluded, and an offer of proof to this effect was denied on the ground that it was not proper cross-examination and no foundation had been laid for impeachment. Such statements, if made by respondent, would be contradictory of his testimony that he had read the will to Olson before it was signed, and would be admissible unless foundation should have first been laid by asking respondent whether or not he had made such statements. The general rule is that no such foundation is necessary where the statements sought to. be proved are those of a party to the action or proceeding, 5 Jones on Eidenee, p. 231, § 851.
Peter Bunsness was a witness for defendant, and on cross-examination was asked if he had not, since the trial commenced, had a talk with Swartz, the tenant on Olson’s farm, at the corner of Gannon’s bank in the city of Aberdeen, in which he told Swartz not to make his testimony too strong because Bunsness and Nelson might own that farm yet, or words to that effect. An objection to this question was sustained on the ground that it was irrelevant, immaterial, and frivolous, and not proper cross-examination. The statement, if -made, was obviously an attempt to intimidate and influence Swartz, who was a witness for plaintiffs, and was proper cross-examination.
The seventh finding of fact made by the court was to the effect that there was no competent evidence offered by contestants to establish relationship between contestants and -the testator, and that the hearsay evidence offered by contestants, purporting to be family history, also disclosed that testator left surviving him a grandchild in 'Sweden, and that such testimony established the fact of this child’s relationship as clearly as the relationship
There is evidence tending to show that testator was an illegitimate child, and nothing to show that he had been acknowledged or adopted by his father. If he were legitimate and had died intestate, plaintiffs would be his heirs to the exclusion of the supposed grandchild in Sweden, and if he were illegitimate and had not been acknowledged or adopted by his father and had died intestate without lawful issue, his estate would go to his mother or, in case of her decease, to her heirs at law. Rev. Code, § 704. Therefore, if he were illegitimate, plaintiffs would likewise be his heirs,
After careful consideration of the entire record, we are of the view that the judgment and order appealed from should be reversed and the cause remanded for a new trial, and it is so ordered.