62 Neb. 274 | Neb. | 1901
This is a petition in error to review^ a judgment of the district court of Douglas county, admitting to probate an instrument propounded as the last will and testament of George H. Boggs, deceased. A large number of exceptions were taken during the course of the trial, and numerous errors are assigned in this court. But the briefs and argument have been confined to the assignment that the verdict and judgment are contrary to the evidence, and to
From the evidence it appears that George H. Boggs was the youngest of a family of ten, of whom three brothers and five sisters, the youngest about fifty and the oldest about seventy, were surviving at his death. These brothers and sisters, and the children of a deceased sister, are the contestants. George Boggs came to Omaha about 1866, and for many years was a mail clerk at a small salary. In 1872 he married the proponent, with whom he lived in Omaha until his death. At the time of his marriage he had saved about a thousand dollars, but afterwards he lost his position as a mail clerk, and, during the earlier years of his married life, was in poor circumstances, his wife doing her own housework for some five years. He seems to have been a business man of no little ability, and by fortunate investments, industry and saAdng, in Avhich on one occasion, at least, he acknowledged that his wife was in part instrumental, he succeeded in the course of ten or fifteen years in amassing a fortune estimated at close to half a million. In* 1886, when his fortune Avas at its maximum, he made a will, in which he left one-half of his estate absolutely to his wife, and the remainder, there being no chil
With respect to the claim that the will was procured to be made by' undue influence on the part of Mrs. Boggs, it is to be observed, in the first place, that the testator was a man of unusual force and strength of will. All who came in contact with him, even the physicians who treated him in his last illness, remarked this, and at every turn in the record we see him positive, confident, and giving clear directions about his business in the manner of one who expects to be obeyed. It is true some of the contestants testify that he was accustomed to yield to his wife and even that he stood in some fear of her displeasure. But there is ample ground for thinking that this sprang from affection solely. It is not unlikely that both, having won their way in the world by industry and saving from comparative poverty, were self-reliant and determined. Nothing appears to indicate that a man as obstinate and pertinacious as he seems to have been was under the dominion of his wife’s will, even when enfeebled by incurable disease." It is undoubtedly true that physical weakness more or less enfeebles the will. But it is in evidence that there was no observable waning of his mental powers till a day or two before he died, and the physician who attended him at the time the will was executed says that on that date he was just as able to resist importunity and entreaty as when well. In the next place, the evidence shows that Mrs. Boggs took no immediate part íl the making of this will. She was not present when the testator gave the. instruc
Again, it is to be noticed that the will in question and the will of 1898 are not essentially different. In the former Avill, Mrs. Boggs Avas given the home, all the personalty, and one-half of the residue of the realty. In the last one, she was given certain specific realty instead of an undivided one-half. The testimony shows that Mr. Boggs was not hopeful of a speedy revival of business and recovery
It was attempted to show that Mrs. Boggs systematically prevented the testator’s relatives from talking with him in private and that she endeavored to keep them away from him. Many occurrences which appear in evidence might be given such construction. Bnt they are all equally compatible with an honest and sincere solicitude for his welfare and the demands of caring for one in his condition. She took care of him substantially unaided. He required constant attention by day, and she had to get up during the night at stated intervals and administer certain remedies. He was inclined to be talkative and to exhaust himself in conversation, and his physicians had to caution repeatedly against permitting him so to do. Under such circumstances, constant presence at his side and jealous watchfulness lest he talk too much or become unduly excited were in nowise reprehensible.
Some statements are testified to by the contestants as having been made to them by the testator after the will was executed to the effect that he would have liked to do better for them, but that his wife would not let him. Were it not for the prior will of 1893, these statements might not be without weight. But he was not coerced two years before, or, if he was, had had ample time to retract, and we do not think these statements should outweigh his deliberate acts. Moreover, his statement to Mr. Hill, his former partner, that he had made a will, but did not know whether he had done the right thing or not, is suggestive. He had asked his wife, and she had agreed, to give whatever of the in
Where undue influence is charged, the question is, in substance, whether or not the testator acted freely and upon his own judgment or under some species, of coercion or imposition.' In one of the leading cases, Lord Cranworth said: “It is extremely difficult to state in the abstract what acts will constitute undue influence in questions of this nature. It is sufficient to say that, allowing ■\ fair latitude of construction, they must range themselves under one or the other of these heads, — coercion or fraud.” Boyse v. Rossborough, 6 H. L. Cas. [Eng.], *2, *48. In other ivords, in the absence of fraud and imposition, undue influence, in order to invalidate a will, must amount at least to a moral coercion; it must be of such' character as to destroy the free agency of the testator and substitute another person’s will for his own. Latham v. Schaal, 25 Nebr., 585. Such moral coercion may consist in constant pressure of importunity or persuasion, whereby the mind of the testator is not left free to actunderstandingly. But in such case, there must be such a degree of urgent solicitation that, under the circumstances, and considering the testator’s condition of mind and body, he was too weak to resist it, and acted under constraint of
The instructions given by the court on its own motion fully and correctly present the law as to undue influence and testamentary capacity. Possibly they may be open to some criticism, as suggested by counsel, by reason of undue length and a tendency to argumentativeness. But no specific objections are urged upon us except as to one instruction, nor do we perceive any prejudicial error in the charge as a whole. In one instruction the court told the jury that there was no sufficient evidence of a conspiracy on the part of the proponent and her father and mother for the purpose of influencing the will of the testator. We do not think this instruction prejudically erroneous for two reasons. In the first place, the real issue was not whether there was a conspiracy as charged, but whether the will had been procured by undue influence on the part of Ida M. Boggs, singly or in conjunction with others. The court clearly and repeatedly pointed out that such fact, if established, would vitiate the will, and having that question definitely before them, we do not think the jury were confused by having the immaterial issue of conspiracy taken out of their hands. If such conspiracy existed, it would not of itself be ground for setting aside the will, but the facts indicating it might bear upon the issue as to undue influence. In the second place, there was no sufficient evidence to sustain a finding of conspiracy. Aside from a remark of the testator to one of the contestants, which, at most, only shows that he suspected her parents of some scheme, every circumstance urged upon our attention as evidence of conspiracy is entirely susceptible of an honest construction. Mrs. Boggs’s parents stayed at the house a short time after the return from Chicago, at a-time Avhen she was devoting her whole time to the care of her husband and was in sore need of assistance. Some days after the will Avas made, one of Mr. Boggs’s sisters came; presently others of his relatives arrived, and Mrs. Boggs’s parents withdrew. At one time her mother suggested that so many
It is recommended that the judgment be affirmed.
For the reasons stated in the foregoing opinion the judgment of the district court is
APPIRMED.