Hackett's Estate v. Hackett

McCOY, J.

This -action involves the contest of the will of one Jane Hackett, who died October, 1911, 'having theretofore, on the 8th day of September, 1908, made w'hat purported to be her last will and testament. When this will was -offered for probate certain of 'her children and heirs and devisees under said will appeared and entered written objections, and contested the probate of said will upon the ground, among others, that at the time of the execution of said will said Jane Hackett was not of sound mind, and was- not -competent to malee a last will and testament. *212 The county court, after hearing, by order and judgment admitted said will to-probate. From- the order and judgment admitting said will to probate -contestants appealed to the -circuit- court, where a trial de novo wa-s had before the court and a jury. Verdict was rendered finding that said decedent, at the time o-f -the execution of said will, was not -of sound mind, -and was not competent to- make a last will. Thereafter, and before the makings o-f findings by the trial court, the appellant .-moved the court -to disregard the findings of the jury and- to make findings favorable to- appellant. The motion was overruled- an-cl denied, and appellant excepted to- such ruling. .The c-o-urt then adopted the findings of -the jury and rendered judgment disallowing the p-ro-bate of said will, from which judgment the appellant, Eugene Hackett, has taken -an appeal.

[1-4] The vital question- to be determined is whether or not the said finding of the j-ury, as adopted and- approved by the findings of the -court, is opposed by the weight or clear preponderance of -the testimony. The verdict was adviso-ry to- the court o-nly. Shaw v. Shaw, 28 S. D. 221, 133 N. W. 292 . We are of the opinion that the -clear preponderance of the evidence is against said findings. The evidence -on the trial was quite voluminous, and it will serve no useful purpose, and .it wo-ul-d he impracticable, to herein set -the same out in- full. Evidence which is practically undisputed shows the following facts: That the will in question was written and executed on th-e- afternoon of September 8, 1908, at the family home of Jane Hackett, who was then a widow, her hus'band having died several years prior thereto; that -about a year previous to the execution of the will she had suffered a stroke of partial paralysis, -and frc-m that time -o-n until a very short time before her death her physical condition was weak and frail; before and after the execution of the will, her locomotion was- partly impeded, but sh-e attended to her household duties, sweeping floors, washing dishes, making beds, and to some extent superintended her -farm, walking over the' farm, receiving t-he proceeds, -and paying the same -out in the ordinaiy course of business; that -she then resided with her t-wo- unmarried sons, Eugene and- Arthur, and one unmarried daughter, the oldest of whom w-as about 25 years of age; that she had- other married children living in the neighborhood, w'ho-m she visited from- time to time, after the stroke -o-f paralysis; that her physical state of health, from shortly after the stroke of *213 paralysis until about two months before her death, remained generally ,the same; on the afternoon in question she sent for an attorney to write the will, and also sent for a neighbor to witness., the same; it does not appear that she had ever had any previous conversation with any of the members of her family concerning the contents of the will she was about to execute — no mention of a will other than that she intended to make one; when, the attorney- ap-' peared she said, “I sent for you to draw my will.” The attorney said, “How do you wish to have it drawn?” she then directed to the minutest detail the contents of the will; sometimes -she was-, sitting in a rocking -chair, and sometimes walking about the room while the will was being prepared. The attorney first made a rough -draft before making out the will: Her property consisted of a i6o-acre farm and farm, personal property and some money; she had been the mother -o-f fifteen children-, some of whom were deceased, having left children, the grandchildren of decedent; she first directed the attorney to draw the will, giving $100 to- each son, and $50 -to each daughter, and the residue to Eugene; she conversed with neighbor Mayer, whom she 'had called in to witness the will, concerning the provisions of the will; then she said, “I will change that. I will give the sons two hundred dollars each, and the daughters $100 each, and the grandchildren $50 each, and to Eugene the remainder;” -she stated that she originally had intended to divide the farm equally between, Eugene and Arthur, but that Arthur had not done as he should; that Eugene had been good to her, and that she thought he would take good care of her so long as she lived. There is no- evidence of any character tending to show undue influence. The surrounding facts and -circumstances strongly tend to show that Jane Hackett was of sound and disposing mind and memory at the time she -executed said will. It does not. necessarily follow that, because one is physically weak and frail, one is of unsound mind and memory. Oxford v. Hopson, 73, Ark. 170, 83 S. W. 942 ; Paulus v. Reed, 121 Iowa, 224 , 96 N. W. 757 ; Tichy v. Simecek; 4 Neb. (Unof.) 597 , 95 N. W. 629 . The living children of decedent 'were -arrayed about' evenly on the two sides'of-this controversy;'' those in favor of probating the will were, of the opinion that -her mind was bright and perfect when the-will was executed; .those, opposed to.the,probating were of the opinion that she- was- not' of disposing -mind and *214 memory. Nonexpert opinions of this character have -but little, if any weight, except in as far as they are based on the surrounding facts and circumstances warranting such opinions. Auld v. Cathro, 20 N. D. 461 , 128 N. W. 1025 , 32 L. R. A. (N. S.) 71, Ann. Cas. 1913A, 90; Davis v. Davis, 29 S. D. 420, 137 N. W. 283 . The opinions expressed by the witnesses for respondents seem to be generally mere naked opinion, not based on substantial reasons therefor; the faots that decedent shed tears when conversing with her children and when parting with them, or that she at such times talked incoherently, is no proof that at the time she executed the will she was not of sound and 'disposing mind and memory. The motion to disregard the verdict of the jury and' to' make findings for appellant should have been granted.

The judgment appealed from is reversed, and the cause remanded for further proceedings in consonance herewith. This court, were it so empowered, would 'direct final judgment to be entered in favor of appellant.