197 N.W. 783 | S.D. | 1924
One Eliza Tobin, about 60 years of age, died in D'ay county March 3, 1922, leaving as her sole heirs at law her brothers and sisters. ‘She left an olographic will by which her sisters Jane and Retta and her brother James were given $5 each, and the remainder was given to her brother Charles and her sister Sophia, except that certain real 'estate was given to Charles for life only, with directions for sale after his death, the proceeds to be divided among her nephews and nieces then living. Upon the hearing of the executor’s petition for the probate of the will in county court the brothers Charles and James and the sisters Jane and Retta contested the admission of the will to probate. So far as here material the grounds of contest were lack of testamentary capacity and undue influence. The county court admitted the will to probate. Upon appeal by the contestants the matter was tried in the circuit court with the result that the trial court directed a verdict in support of the will. The contestants appeal from the judgment and an order denying a new trial.
The will was dated September 15, 1921. On February 7, 1922 (or nearly a month before her death) testatrix sent to her bank a steel safety deposit box which she had kept at home for 10 or 12 months. This was taken to the bank by her brother Charles, accompanied by Sophia’s husband and Novak, an employee. She retained the key. Upon her death the banker her executor, the respondent herein, opened the box, and in it was found the will contained in a sealed envelope marked in testatrix’s handwriting “Eliza Tobin’s Last Will.” In the box were also found certificates of deposit and Liberty bonds aggregating about $10,000; certificates of stock in a farmers’ elevator company and in a telephone company; some diamond rings; a brooch; some gold coin; a watch and deeds and papers pertaining to her father’s estate. The will was taken to the county judge and by him opened.
The evidence produced at the trial clearly showed the competency of testatrix to make a will. There was nothing shown that even arose to the dignity of evidence to the contrary. The most that can be said is that eccentricities were shown, but none that tended to affect her testamentary capacity. The evidence was so clear that a verdict to the contrary would necessarily have been set aside. Therefore the court did not err in directing a verdict on that issue.
■ ■ It is contended that Sophia exercised undue influence pver testatrix in the making of the will. In support of this contention evidence was offered tending to show that in 1920 testatrix had' declared that Charles was to have the home farm. . There was no evidence that testatrix ever manifested an intention of leaving any portion of her property to either Jane, Retta, or James. Testarix died seized of three adjacent quarter sections. One of these was homesteaded by testatrix on which were two houses. Testatrix lived in the new house, and Charles and his wife in the old one. One of these quarters was bought by testatrix 4 or 5 years
Charles’ wife testified to conversations with testatrix, in which testatrix said Charles was to have the home farm, but the clear purport of her testimony is that such declarations referred only to the homestead quarter. The witness also testified to a conversation with testatrix in July, 1921, in which testatrix said that Sophia 'had been “knocking” her brothers and sisters, and was trying to get her property to the exclusion of Charles, but that her will was made, and it was going to stand as it was, and that nobody would 'change heir mind. The -witness also testified to another conversation relating to the disposition of testatrix’s property, in which testatrix told witness that Charles would, never be sorry; that she expected to give him the farm she was then living on. Fanny Novak, a sister of Charles’ wife, testified that between October and February testatrix said she was going to give the big house to Charles, and that she did not think she would give much to Sophia. Mr. Perry testified that in 1920 testatrix said, “I want all of this to go in a chunk to Charles when I am through with it.” Dolly Rowe, a niece of 'Charles’ wife, testified that in the summer of 1921 testatrix said that Charles would soon own the place she was living" on.
Sophia' resided at Plarvey, N. D1., but had been a frequent •visitor at testatrix’s home. James resided at Langford, Jane at Andover, and Retta at Waterloo, Iowa. It was shown that during the last two years of testatrix’s life Sophia was frequently in position to have exercised an influence over testatrix, but no more than were Charles and his wife. It appeared from the evidence •that in September, 1920, in the presence of testatrix Sophia
After carefully' scrutinizing the evidence, we are of the opinion that this case is within the rule announced in Gillette v. McLaughlin, 44 S. D. 499, 184 N. W. 277, wherein we said:
“That they had an opportunity to talk with him' and possibly to influence him' cannot be questioned, but opportunity alone, or opportunity together with the fact that they were provided for in the will, does not amount tO' legal proof that they were instrumental in bringing about the disposition made of his property. McKenzie v. Murray, 183 N. W. 736.”
We fail to find any substantial evidence that Sophia exercised an undue influence over testatrix in the making of her will. We are satisfied that the trial court did not err in believing that the will exactly expressed the wishes and intentions of the testatrix. As upon the other issue of testamentary capacity,. if the' case had gone to the jury and a verdict had been returned contrary to the validity of' the will, the trial court would have been justified in setting aside the verdict. Therefore there was no error in directing it.
Certain alleged errors in rulings on evidence are argued, but ■ we find nothing of a prejudicial nature.
The judgment and order appealed from are affirmed.
Note. — Reported in 197 N. W. 783. See, Headnote, American Key-Numbered Digest, (1) Wills, Key-No. 370, 40 Cyc. 1353; (2) Wills, Key-No. 135, 40 Cyc. 1132; (3) Wills, Key-No. 166(7), 40 Cyc. 1165; (4) Wills, Key-No. 327, 40 Cyc. 1333.
On effect of delay in probating will, generally, see note in 57 L. R. A. 253; specifically, as where the will is concealed, lost or destroyed, see page 258 of above note.