13 S.D. 475 | S.D. | 1900
The only question presented on this appeal from a judgment rejecting a will offered for probate is whether such instrument dated September 6, 1892, is the last will and testament of Jennie M. Bell, who died on the 23d day of January, 1896 By this will W. J. Bell, the husband of deceased, is made the sole devisee and executor, and the will relied upon by contestant, Starkweather, a half-brother of the deceased, differs therefrom very materially, both in its terms and provisions, and expressly revokes all former wills by her made and executed. That the decedent made these two wills expressly revoking in each all wills theretofore made is undisputed, and there is some evidence tending to show that prior to the date of either she had made at least another, the terms and conditions of which are not disclosed by the record, Finding of fact No, 3 relates to and contains the will executed September 6, 1892, and finding No. 4 is as follows: “That the said Jennie M. Bell, deceased, at a time subsequent to-the date of the will set forth in finding of fact No. 3, and in the spring of 1893, and at or about the month of June, A. D. 1893, executed a last will and testament at the city of DeSmet, in.Kings-bury county, and State of South Dakota, in due form, differing in terms and provisions from the said will above set forth in finding No. 3, and so offered by W. J. Bell; and that said will of June, 1893, expressly revoked all former wills by her, the said Jennie M. Bell, deceased, made and executed, and that the 'same contained express words of revocation of all former wills by her, the said Jennie M. Bell, deceased, made and executed.” The will found with the papers of Mrs. Bell after her death, and presented with appellant’s petition to the county court for the purpose of being probated, is in due form, and witnessed
On cross-examination he testified in part as follows: “I made the will for her imthe spring of 1893. I do not remember just the month, only it was a short time before she went to the World’s Fair.- It may have been May, June, or April. I could not state. I did not have another will of Jennie M. Bell’s before me at the time I drew the will Dr. Bice witnessed. I did not see one at that tin e. I asked her whether she had the will with her, and she said no; it was in the possession of Mr. Bell, and she didn't want to ask him for it.’ From the desposiiion of Dr. Earl Rice, read at the trial, we quote: “I reside at Rowland, Story county, Iowa. I am 29 years old, and by profession a physician and surgeon. In the spring months of 1893, I resided atDeSmet, Kingsbury county, South Dakota. At the time I knew Jennie M. Bell she was a married woman. Her husband’s name was W. J. Bell. At the time referred to, I knew A. P. Schenian. I knew of Mr. Schenian’s drawing a will for Jennie M. Bell. I witnessed that will. To the best of my recollection, that will was drawn and witnessed by me in the spring of 1893. Besides myself, I think A. P. Schenian witnessed that will. That will was signed and witnessed in the law office of A. P. Schenian, DeSmet, South