84 Neb. 16 | Neb. | 1909
Robert Ayers died at Omaha, Nebraska, August 1, 1906, a widower and without issue, leaving him surviving his sole heirs at law Charles Treadwell and Ezekiel Ayers, brothers, and Kate Addis and Fanny Inglis, sisters. He died seized of about $1,000 in personal property and an 80-acre farm in Clay county, where he had resided for many years. In 1892 he executed and deposited with the county judge of Olay county an instrument purporting to be his last will, which was in the words and figures following :
“I, Robert Ayers, of Clay county, Nebraska, being of sound mind, memory and understanding do hereby make my last will and testament in manner and form following:
“First. If my beloved wife, Kate E. Ayers, be living at the time of my death, I give, devise and bequeath to her.all the real and personal property belonging to me wherever the same may be at the time of my death.
“Second. Should my wife, Kate E. Ayers, die previous to my death or before the proving of this will, it is my desire that after paying all just debts by me owing, that my property both personal and real be given to my niece, Gussie M. Inglis, daughter of my sister Fannie, wife of Alix Inglis of Victoria, Knox county, 111.
“In Witness Whereof, I, Robert Ayers, the testator, have to this my last will and testament set my hand and seal this 22d day of February, 1892.
“Robert Ayers. (Seal.)
“Signed, sealed, published and declared by the above named Robert Ayers as and for his last will and testament in the presence of us who have hereunto subscribed our names at his request as witnesses hereto in the presence of the said testator and of each other.
“L. S. Backus, of Harvard, Nebraska.
“Ezra Brown, of Harvard, Nebraska.”
The contestants admit that in other jurisdictions and in a dictum by this court the rule is stated to be that, where the attestation clause recites all the requirements of due execution and attestation, it will be presumed prima, facie that all the requirements existed. It is, however, insisted that this rule would be in violation of section 141, ch. 23, Comp. St. 1907, which proAides that, in case there shall be no contest to the probate of a will, the county court may grant probate thereof on the testi
The contestants argued that the testimony of Mr. Brown that Backus signed at Mr. Ayers request is to be disregarded as being a conclusion of the witness. There-was no objection to the form of the question which elicited this response, nor to the answer, at the time, and we do not understand the rule to be that the court may disregard testimony when it is received in that form without objection.
The contestants produced a formidable array of witnesses, boyhood acquaintances of the deceased, his sister and brother, officers who had had charge of him while under restraint, and one or two medical witnesses beside Dr. Hay, then superintendent of the Nebraska insane hospital. The testimony of the latter was that he believed from the history he had of the case that the deceased in
On the other hand, the proponent produced the testimony of the scrivener of the will, of the men who had been appointed conservators for the deceased "when he was sent to the hospital, and neighbors and acquaintances who knew him more or less intimately at about the time of the execution of the will, the consensus of whose testimony was that he understood business affairs and was perfectly capable of transacting business.
There is nothing in the record to show that his business ability or his understanding of business matters and affairs was ever directly affected even during the acute attacks. On the contrary, he seems to have always been accurate in his business methods, and careful and intelligent in his business transactions. Even at the last, while he was in Omaha, and when, as the testimony of his landlady tended to show, there were increasing aberrations of conduct which probably marked the progress
This brings us to the crux of this case. The medical definition of insanity as given by Dr. Hammond in his work on Diseases of the Nervous System is a manifestation of disease of the brain characterized by a general or partial derangement of one or more of the faculties of the mind, in which, while consciousness is not abolished, mental freedom is perverted, weakened or destroyed. That, pathologically considered, the deceased was insane for many years may be admitted; but the real question is: Was his mind so diseased that his mental freedom was perverted and his understanding destroyed so that he was incapable of knowing and comprehending in a
There is a charge of undue influence, and the contestants complain of the rejection by the court of certain testimony of Mrs. Addis that Mrs. Ayers was embittered against her, the theory being that Mrs. Ayers influenced her husband to make a will hostile to Mrs. Addis. We think, if we assume that Mrs. Ayers was unfriendly to Mrs. Addis, the theory that she influenced her husband would have no support whatever. The only thread upon which this supposition is hung is that Ayers stated to the scrivener when he had drawn the will that his wife would now see that he had kept his word. This remark is fully explained by the fact that he had made a will in his wife’s favor, and it is more likely that he referred to some promise of that kind than to the contingent remainder which he left to the niece.
We therefore recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.