84 Neb. 251 | Neb. | 1909
Tbis action involves tbe validity of tbe will of one Setb F. Wincb, wbicli was executed in November, 1891. Probate of tbe will was resisted by tbe appellants, wbo are
It was, and is, the theory of the contestants that Seth F. Winch at the time he made the will in question was afflicted with a mental disease known as senile dementia, and was thereby rendered incompetent to make a will, and-to that issue the entire evidence was addressed. It appears that at the commencement of the trial the district court announced the rule that inquiry as to the mental condition and habits of the testator should not be confined to any particular time before the execution of the will, but would be limited to a period of two years after that date. No complaint was made of this order at the time it was announced; but, as the trial progressed, the contestants offered evidence of the mental condition, habits and conduct of the testator during the years of 1894, 1895 and 1896, which was excluded, and contestants excepted. For the rejection of this evidence, it is now contended that the judgment of the trial court should be reversed. The weight of authority seems to sustain the doctrine that in will contests the trial court may, in the exercise of its discretionary power, limit the inquiry to a comparatively short time after the execution of the will. Howes v. Colburn, 165 Mass. 385; White v. Graves, 107 Mass. 325; Shailer v. Bumstead, 99 Mass. 112; Commonwealth v. Pomeroy, 117 Mass. 143; Lane v. Moore, 151 Mass. 87; Dumangue v. Daniels, 154 Mass. 483. It follows that the only question for us to determine is whether, under the circumstances of this case, the district court was guilty of an abuse of its discretionary power which operated to the prejudice of the contestants.
The rule is well established that in contests of this kind the competency of a testator to make a will is to be decided by the state of his mind at the time the will was made; and, to shed light on its condition then, evidence showing the condition of his mind long prior to, closely approaching, and shortly subsequent to its execution is competent, but such evidence should be admitted for no other purpose. Von DeVeld v. Judy, 143 Mo. 348. In Kinne v. Kinne, 9 Conn. *102, it was said: “The question of testamentary capacity relates exclusively to the time when the will was made; and though evidence of the testator’s conduct before and after that time is admitted, it is received only to show his state of mind at that time.” In Terry v. Buffington, 11 Ga. 337, it was said: “The general principle will not be controverted that the state of mental capacity is to be determined by the condition of the testator’s mind at the time of his executing or acknmvledging the will. For, notwithstanding his incapacity at
Finally, it appears from the bill of exceptions that all of the evidence excluded as too remote was embraced in the hypothetical questions propounded by counsel for contestants to their expert witnesses, who were allowed to state that in their opinions the testator was of unsound mind when the will was executed. Therefore it is difficult to see how the exclusion of specific acts of the testator occurring during the years of 1894, 1895 and 1896
The record does not disclose any prejudicial error, and the judgment of the district court is therefore
Affirmed.
I agree to the result reached in this case, but prefer to place my assent upon the ground that, the order of the court was made at an early stage of the trial' and to which no objection was made and no exceptions taken. I think that, if it was the desire of contestants to have that order reviewed, they should have excepted to the ruling and order of the court, and thus preserved their rights. Offering no objections and taking no exceptions to the order must be taken as consenting thereto, and a waiver of any future right to question it or assign the subsequent rulings based thereon as error.