Matter of Estate of Malone

249 N.W.2d 757 (1977)

In the Matter of the ESTATE of Lena MALONE, Deceased. Art DAHL, Claimant and Respondent, v. Stanley B. MONTZ, Executor, Contestant and Appellant.

No. 11847.

Supreme Court of South Dakota.

February 1, 1977.

Theodore J. Dolney, Mary Jane Burns, Vermillion, for claimant and respondent.

Crew & Crew, Vermillion, for contestant and appellant.

MORGAN, Justice.

This appeal is from an Order of the Circuit Court allowing $1400.00 on a creditor's claim for $2500.00 for various services allegedly rendered to the decedent herein. Appellant concedes that there were valuable services performed as evidenced by a proffered payment of $500.00 from the estate account and a claimed deduction on the Inheritance Tax Report and Inventory filed. The principal complaint that appellant appears to raise on his appeal is the value of the services as determined by the Circuit Judge at the hearing on the contested claim.

Claimant's burden of proof before the trial court was by clear and convincing evidence. Mahan v. Mahan, 1963, 80 S.D. 211, 121 N.W.2d 367; Douglas v. Beebe, 1923, 46 S.D. 559, 195 N.W. 165. The court heard the evidence and allowed a portion of the claim. This court has stated the scope of our review.

"Whether the evidence is clear, cogent and convincing was a question in the first instance to be determined by the trial court and its conclusion will not be disturbed by this court unless it can be said from the record that the clear preponderance of the evidence is against the findings of the trial court." Johnston v. Eriksson, 1946, 71 S.D. 268, 275, 23 N.W.2d 799, 803.

The clear preponderance of the evidence is not against the trial court's determination, and we accordingly affirm the order of the trial court.

All Justices concur.