Hauer v. Hauer , 45 S.D. 103 ( 1922 )

GATE'S, P. J.

[1] This cause is before us on rehearing granted. The former opinion and dissenting opinion are found in 44 &. D. 375, 184 N. W. 1. The sentence from the majority-opinion quoted in the dissenting opinion did not correctly state the facts. The statement of facts in regard thereto found in the dissenting opinion is correct.

[2] Three principal questions are presented for consideration. The first relates to the due execution, publication, and attestation of the will. The will in question was signed by testatrix in July, 1909. The trial in circuit court occurred in April, 1920, nearly 11 years thereafter. Naturally the subscribing witnesses did not remember all of the details attending the execution, publication, and attestation of the will, but the certificate of attestation was in the form required by law. In Ross v. Taylor, 39 S. D. 608, 165 N. W. 1079, wé said:

“'When (as in this case) it is proven that the testator signed the instrument, and that the persons whose names appear as subscribing witnesses signed the usual certificate of attestation setting forth in detail a full compliance with the several statutory provisions in relation to execution, including the fact of publication to such witnesses, there arises a strong presumption that every one of such statutory requisites were complied with. Such presumption does not need the support of the affirmative memory of either subscribing witness; and, in order to defeat the will, such presumption must be overcome by clear and satisfactory evidence. In re Grant’s Will, 149 Wis. 330, 135 N. W. 833; In re Sears’ Estate, 33 Misc. Rep. 141, 68 N. Y. Supp. 363; Mundy v. Mundy, 15 N. J. Eq. 290.”

In 28 R. C. L. 372, the text says, upon the authority of cases from Illinois, New Jersey, Pennsylvania, and Vermont:

“One effect of a formal attestation clause is to raise a presumption that the will was duly executed, although the witnesses are unable to recall the facts.”

In 28 R. C. L. 369, we also find the following:

“A properly executed attestation clause is 'held to furnish prima facie proof of all facts essential to due execution to which attesting witnesses could depose, if present, including the authenticity of the testator’s signature, * * * also his volition in signing and his mental capacity and understanding of his act.”

[3] There is another point in this case which tends to support the will that was not adverted to in the former opinions. This will was prepared, executed, and published under the direction of a well-qualified attorney, Thos. L,. Bouck, of Milbank, who was deceased at the time of the trial and who was the circuit judge of the Fifth judicial circuit of this state at the- time of his death. Upon this point we said in Ross v. Taylor, supra:

“Our attention has been called to numerous cases where wills have 'been admitted to probate regardless of the fact that one or more of the subscribing witnesses have sworn to facts impeaching the certificate of • attestation. But an examination of such cases reveals that- in every one there-were some facts or circumstances tending to impeach the memory or veracity of such witness or witnesses. In some cases the subscribing witnesses- were very old when called to testify. In others the executing and witnessing of the writing was under - the direction and charge of some well-qualified attorney, or the testator was. himself a party who would be presumed to know, and therefore to comply with, the statutory requirements. * * * Had this subscribing witness admitted that he was in the slightest doubt in relation to the lack of publication .by Mrs. Taylor, so that,we had1 anything from which to infer that he had forgotten what actually occurred, we would affirm the judgment of the circuit court.”

The testimony of the subscribing witness McKenna does not tend to impeach the certificate of attestation. The most that can be said of the evidence given by ¡Mittelsteadt, the other subscribing witness, is that he did not recall all of the facts in regard to the publication and attestation of the- will. 'Alter going to the settled record and giving the evidence most careful scrutiny, and considering the case from the legal viewpoints above set forth, we are of the opinion that the prima facie proof, arising from the certificate of attestation, that the will was duly executed, published, and attested, has not been overcome.

[4] Our colleague asserts:

“There is not one word of testimony going to show that either one of the subscribing witnesses ever read the contents of the attestation clause.”

Such testimony was not necessary. It was incumbent upon contestants to prove the negative. But our colleague (referring to the testimony of M'ittelsteadt) further says, “And there is clear evidence that one did not.”

The evidence of Middelsteadt is as follows (the italics are ours) : .

“He ('Mr. Bouck) said there was a will being made for Mrs. Hauer and for me to explain the contents to her. * * *

“Q. You read the paper over to some extent? A. Well I just glanced it over and found what it contained and explained its contents to Mrs. Hauer. :

“Q. Whereabouts in the paper do you recollect that you began to read? A. Where it started to divide the property — that is, I glanced it over carelessly, of course.

“Q. And about where the children were named. A. Yes, sir.

“Q. After that part of it, did you read any more except the part where it disposed of the property? A. Yes; except where it disposes of the property.

“Q. That is all you remember reading of it? A. Yes, sir. sfc * sfc

“Q. You say she could not speak English? A. No, sir; s'he could use a very few words.

“Q. After you had told her what you said, and she had used these words, ‘it was,’ in reply to your question if that was-the way she wanted it, then you say she said it was? A. Yes, sir.

“Q. And that is all you remember she said during the time she was there? A. That is all; yes,‘sir.

“Q. This paper, Mr. Middlesteadt; consisted of two sheets and the parts that you testify that you read and explained to her is on the front page? A. Yes, sir.

“Q. Is that all you read at that time, as you recollect? A. I think it was — still I could not say as to that.

“Q. You don’t recollect reading anything on this page except — you did sign your name? A. Yes; that is as near as I can remember. I may have, bat I could not say.

“Q. Anyway, you do recollect that all you explained to her was on this front page, now about the division of the property? A. Now, it is taxing my memory a little strong. It is the instrument; I read that over in a way and explained the contents to Mrs. Hauer, which I tried to do right. * * *

“Q. You have told us all the conversation you recollect that you had? A. As near as I can; yes, sir.”

To our minds this testimony does.not clearly show that the attestation clause was not read by Mittlesteadt.

The other questions urged' on rehearing, as upon the original appeal, relate to the mental competency of testatrix and the claim that she was unduly influenced. We .are unable to conclude that the clear preponderance of the evidence is contrary to the findings of the trial court upon these issues.

The conclusion arrived at in the former majority opinion is therefore adhered to, and the judgment and order denying new trial are affirmed.

ANDERSON, J., not sitting.