HAMM, Deceased. Gerald M. McCall, Evelyn M. Hruby, Ralph D. Byers, and Lloyd M. Byers, Contestants and Appellants. Jackson and Donald R. Joseph M. William G. Byers and Lloyd M. The decedent, Robert W. Hamm, in the 76th year of his life executed a will on the 27th day of September, , which was presented to the Circuit Court of the Seventh Judicial Circuit for Custer County for probate on the 25th day of March, , the decedent having departed this life on the 22nd day of March, The probate of the will was contested by his widow, Billie Jean Hamm, and four others who were first cousins of the decedent, upon the usual grounds including the lack of testamentary capacity and that the will was procured to be made and executed while the decedent was under the undue influence of attorney Gerald M.
Baldwin who had prepared the will and who was named therein as executor and sole trustee. After an extensive hearing and briefing by the proponents and opponents the trial court held that the decedent did have the requisite testamentary capacity but denied the will probate upon the grounds that it clearly showed the effect of undue influence on the part of Baldwin for three reasons: 1 the testator named Baldwin the executor and trustee without bond after only a brief acquaintance and a limited number of contacts; 2 the nonexistent or very limited contacts with the beneficiaries of the trust evidenced an unnatural disposition of the testator's estate; and 3 when Baldwin included the Custer Nursing Home in which he had a financial interest as a potential beneficiary under an ostensible charitable trust in his discretion as sole trustee he deliberately created an ambiguity and inconsistency and a source of potential personal profit.
While we agree with the trial court's finding as to testamentary capacity we disagree with the finding as to undue influence and accordingly reverse and remand. Some insight into the rather unusual history of the decedent is necessary to review the situation existent at the time the will was drafted, a time which was perhaps one of the most turbulent periods in the decedent's lifetime.
The record discloses that the decedent Hamm's first wife, who died in or , bore him one child, a son Arlon. He was married a second time briefly to a prostitute named Mary, who plays no part in these proceedings. His third endeavor in the matrimonial field occurred in when at age 72 he married another prostitute, year-old Billie Jean, one of the opponents.
The marriage lasted until late when Hamm instituted divorce proceedings against Billie Jean, who had apparently taken off for other climes with his car and a portion of his money. Hamm suffered a stroke in early , Billie Jean returned in April or May, , and the couple were reunited in wedlock. During this marriage the couple, or Hamm individually, resided in the vicinity of Sturgis, Meade County, South Dakota. Billie Jean got into some problems with the law related to a drug charge and she packed Hamm off to Ely, Nevada, admittedly to "get out of the state for a year" on advice of her counsel.
