Ross v. Taylor
39 S.D. 608, 165 N.W. 1079, 1917 S.D. LEXIS 204 (1917)
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Rule of Law:
A will is not validly executed where the presumption of due execution created by an attestation clause is overcome by clear and satisfactory evidence from a credible, unimpeached subscribing witness who positively testifies that the testator did not declare the instrument to be their will.
Facts:
- In 1900, Ida S. Taylor executed a document purporting to be her will in Bristol, South Dakota.
- Two individuals signed the document as attesting witnesses.
- One of the subscribing witnesses was a stranger to Ida S. Taylor and everyone else present except the person who asked him to witness.
- The witness was not introduced to Taylor, and she did not speak to him.
- Neither Taylor nor anyone else present declared or communicated to this witness that the instrument he was signing was Taylor's will.
- This witness did not read the attestation clause before signing it.
- The other attesting witness had no recollection of the event whatsoever.
Procedural Posture:
- The proponent of Ida S. Taylor's will offered it for probate in the county court of Day county, a court of first instance.
- The county court denied probate of the will.
- The proponent appealed the county court's decision to the circuit court.
- The circuit court reversed the county court's judgment and admitted the will to probate.
- The contestant of the will, as appellant, appealed the circuit court's judgment to this court, the state's highest appellate court.
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Issue:
Does a will satisfy the statutory requirement of publication when an attesting witness, whose credibility is unimpeached, testifies positively that the testator did not declare the instrument to be her will, thereby overcoming the presumption of due execution created by the attestation clause?
Opinions:
Majority - Averting, J.
No, the will does not satisfy the statutory requirement of publication. For a will to be valid, the law requires the testator to declare to the witnesses that the instrument is their will. While a formal attestation clause creates a strong presumption that all statutory requirements were met, this presumption can be overcome by clear and satisfactory evidence. Here, one witness had no memory, but the other testified positively and credibly that no such declaration was made to him. His testimony was not impeached, and he did not read the attestation clause, nullifying its weight as to him. In the absence of any other facts or circumstances to contradict this witness or support the presumption of due execution, the proponent has failed to meet their burden of proof. The will is therefore void.
Analysis:
This case underscores the strict-compliance doctrine for will formalities, particularly the requirement of publication. It establishes that while an attestation clause provides a powerful presumption of a will's validity, this presumption is rebuttable. The decision clarifies that the positive, unimpeached testimony of a single subscribing witness refuting a necessary element of execution can be sufficient to invalidate a will. This precedent forces will proponents to present more than just the document itself if a witness credibly challenges its execution, and it guides lower courts on how to weigh witness testimony against formal recitals.
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