227 N.W. 84 | S.D. | 1929
This controversy arises out of a contest of the will of Henry P. Tjarks, deceased, late of Charles Mix county. The petition to contest said will was filed by the- respondent, state
The witness Hennies was not in any way related to either the alleged testator or the beneficiaries named in the alleged will. The part of the will written into the blank form is as follows:
“To my wife’s cousins, as follows: One-fourth to- the children of Peter Plattje, who lives- near Avon, S. D., the children’s first names I do not remember; one-fourth to Mrs. Lydia Endicotte, who lives in Oregon; one-fourth to- Mrs. Mary Nieuwenhuis, who lives near Harrison, S. D.; one-fourth to Mrs. Jennie Munneke, who lives near Joubert, S. D.”
The witness Hennies continued to the effect that in January, 1916, Tjarks 'died-, and one Barnard Brandt, a 'banker of Avon, proceeded to administer the estate. Shortly thereafter Hennies, in preparing to leave the business of grain buyer at Ravinia, was cleaning up some papers which he had around the elevator and in his satchel, and, through inadvertence, he burned what he supposed was a copy of the will that he -had originally made, but which, in fact, proved to- be the original instrument.
The witness Evers testified for appellant that he was formerly county treasurer of Charles ’Mix co'unty, and, at the time of the transaction by him narrated, was vice president of the Wagner State Bank. He testified that Tjarks and Hennies came to his bank on October 23, 1915, and witness corroborated- Hennies’ statements as to the execution of the will, and, like the witness Hennies, this witness also testified to the contents of the alleged lost instrument, claiming to do so from recollection independent of the copy offered in evidence. Each witness identified the alleged copy of the lost will as a true copy. In addition to this proof, the witness Nieuwenhuis, who is the husband of one of the beneficiaries in the alleged lost will, testified to a conversation with the decedent, in which the latter stated that he had- made a will “giving the Plattje children” all his property. Other witnesses identified the beneficiaries as the Plattje children.
No part of the above-stated testimony was directly contradicted by any witnesses, nor was any fact proven by respondent which may be said to be a direct contradiction of any part of appellant’s proof as aforesaid. Eor this reason appellant contends
It is not to be denied that the legal duty of the trial court to enter findings in an equity case consistent with the undisputed testimony of a witness is the same as the duty of the court to direct a verdict in a jury case,. according to such testimony. A recent statement of the rule by this court was in Jerke v. Delmont State Bank, 54 S.D. 446, 223 N. W. 585, 594, as follows: “If the testimony in behalf of the party having the burden of proof is clear and full, not extraordinary or incredible in the light of general experience, and not contradicted, either directly or indirectly, by other witnesses or by circumstances disclosed, and is so plain and complete that disbelief therein could not arise by rational processes applied to the evidence, but would be whimsical or arbitrary, then, and in such case, it is not only permissible, but highly proper, to direct a verdict, and.the direction of such verdict should not be prevented merely by reason of the fact that one or more of the witnesses are interested'in the transaction or the result of the suit.” See, also, Beatty v. Beatty, 151 Ky. 547, 152 S. W. 540; Kennedy v. Modern Woodmen, 243 Ill. 560, 90 N. E. 1084, 28 L. R. A. (N. S.) 181; Anderson v. Liljengren, 50 Minn. 3, 52 N. W. 219; Blankman v. Vallejo, 15 Cal. 639; Allis v. Hall, 76 Conn. 322, 56 A. 637; Kuehne v. Malach, 286 Ill. 120, 121 N. E. 391.
Where the only person who could directly dispute a witness is dead, the testimony of that witness should be clearly scrutinized, its reasonable probability should be carefully considered, and, for this purpose, attention should be given to the circumstances surrounding any transaction which the witness may narrate, and his
In this behalf respondent calls our attention to certain matters brought out in cross-examination of appellants’ witnesses. It appears that the witness Hennies never had any experience or training in the- drafting of wills, and it is argued that it is improbable that decedent would have gone to such a person for the purpose of having a will drawn. Explaining why he wrote two drafts of the will — by means of which the witness was able to produce an exact copy for probate — he stated that he rewrote the will, so that the second draft would be a little better as a matter of penmanship. Asked as to when he acquired the impression that it was necessary for one making a will to say to the witnesses, “This is my last will and testament,” Hennies stated that he did not know; that no one had told him. The witness declared that decedent handed him the will, after its execution, although it was shown that Tjarks had a lock box at the bank, in which he was accustomed to keep personal papers. It thus came about that the witness, intending to destroy the copy of the will, destroyed the alleged original after Tjarks’ death. Although Hennies knew that one Brandt had 'been appointed administrator of Tjarks’ estate, and was attending to the same, he made no mention of the lost will for a period of several months, and until counsel had been employed by the proponents of the lost will. The witness Evers also permitted several months to pass, after Tjarks’ death, before he claimed to have been a witness to the execution of lost will, and, in conversation with the administrator Brandt, he not only failed to mention the will, but he made statements inconsistent with his alleged knowledge of the particular will offered to probate. The witness Evers also stated that his wife’s brother married a sister of the witness Hennies.
We cannot say that inferences, necessarily adverse to the credibility of appellants’ witnesses, are the only inferences which may be drawn from the above and similar evidence. But, on the other hand, we may not properly substitute our opinion of the credibility of the witnesses or of their statements for that of the trial court, and insist upon other permissible .inferences from the same evidence. Since it must be conceded as a matter of law that a reasonable process of intellection might lead to the fact result stated by the trial court, the only question presentable on appeal is whether the trial court’s findings are against the clear preponderance of the evidence.
Rev. Code 1919, § 3214, provides that no will shall be established as a lost or destroyed will unless its provisions are clearly and distinctly proven by at least two credible witnesses, and the courts usually lay down a formula which implies that a greater degree of evidence than a mere preponderance is necessary. 1 Page on Wills (2d Ed.) § 790. The claim of appellants’ witnesses that they were able to testify .to the exact contents of this will long after its execution, and from independent recollection aside from the alleged copy, was treated by the trial court as questionable, and the unexplained failure of the witnesses to make any move or statement consistent with their knowledge of the will, while the estate was in
Appellants stress the point that two juries have determined the facts favorable to appellants, exactly as two trial judges have refused to follow their advisory verdicts, and have found the alleged will was never made by decedent. But on appeal we are met with a well-recognized rule of evidence that proof of the execution and contents of an alleged lost will must be direct, clear, and convincing, and by the further rule, too common h> justify citation, that the trial court’s findings of fact are conclusive, unless they are found to be against a clear preponderance of the evidence.
It should be remarked, however, that questions as to burden of proof are not discussed or mentioned in this appeal. Although it is sometimes held that the order admitting an alleged lost will to probate is prima facie evidence of its execution, contents, and of the fact it was not revoked (1 Page on,Wills [2d Ed.], § 642), and though this proceeding was initiated by the petition of respondent, the trial below appears to> have proceeded with appellants opening the case and offering the testimony of their witnesses in full, while, on appeal, the argument is confined to the sufficiency of the evidence to support the findings.
Eor reasons stated, the judgment and order appealed from are affirmed.