30 Nev. 93 | Nev. | 1908
Lead Opinion
By the Court,
This is an appeal from a judgment and order denying a motion for a new trial rendered in the District Court of the Fourth Judicial District of the State of Nevada, in and for the County of Elko, in a will contest wherein W. T. Hitt, proponent and executor of the estate of Mary Abel, deceased, was successfully sued by J. D. Abel, contestant and respondent in this action.
It appears from the record that Mary Abel died on or about the 13th day of March, 1904, at Elko, Nevada, leaving an estate in said county consisting of real and personal property. At the time of her death she was 67 years of age, and had been married to her husband, now 83 years of age, since 1873. There were no children born to them. The appellant, W. T. Hitt, four days after the death of the deceased, filed in the said District Court of Elko County what purported to be the last will and testament of Mary Abel, and duly petitioned the court to probate the same. Within due time the husband, respondent in this action, filed a contest against the probate of said will, in which it was alleged that the purported will was not the last will and testament of the deceased, because as alleged at the date said will was signed the deceased was mentally incompetent to make a will; that the execution of said will was procured by undue influ
Nine special issues were submitted to the jury, with instructions to return answers to the same. They were as follows:
(1) Did Mary Abel sign the instrument which has been offered in evidence as her last will and testament? A. Yes.
(2) Did Mary Abel sign said .instrument in the presence of B. C. McClellan and Eleanor A. McClellan? A. Yes.
(3) Did Mary Abel, at the time she signed said instrument, if she did sign it, say it was her will? A. Yes.
(4) Did B. C. McClellan and Eleanor A. McClellan sign said instrument in the presence of Mary Abel, as witnesses. thereto? A. Yes.
(5) Was Mary Abel of sound mind and disposing memory at the time the proposed will was signed? A. No.
(6) Was Mary Abel acting under undue influence at the time the proposed will was made? A. Yes.
(7) Did Mary Abel, at the time of signing the alleged will, if she did sign it, have sufficient mental (Gr. S. B.) .capacity to recollect the property she intended to dispose of? A. No.
(8) Did Mary Abel, at the time of signing the alleged will, if she did sign it, have sufficient mental capacity to recollect the people who were the natural objects of her bounty? A. No.
(9) Was any of the property mentioned in the proposed will the separate property of Mary Abel at the time of her death? A. Yes.
Upon the rendition of the verdict by the jury, judgment was entered by the court decreeing that the instrument was not the last will and testament of Mary Abel, deceased, and refusing to admit the same to probate.
Appellant urges that a new trial should be granted,
A careful review of the testimony in this case leads us to conclude that the court and jury had ample evidence, though conflicting in certain respects, upon which to base their verdict. It appears from the testimony that the deceased was under the constant care and attention of physicians, and confined to her home for more than six months prior to the execution of the will; that her condition was so precarious as to require the care of a number of nurses; that the deceased was an elderly woman 67 years of age, weighing over two hundred pounds,- and during the latter months of her sickness was almost constantly under the influence of' opiates for the purpose of allaying the intense pain to which she was subjected; that the disease with which she was afflicted had caused her limbs to become so swollen that it became necessary to split them open with a surgeon's knife. Her husband, the contestant, who was assisting in her care during her last sickness, and was almost constantly in attendance upon her, and who had lived with her for nearly forty years, testified that her mind was apparently blank at times, and that she was unable to recognize him, and during the latter months of her life her mental condition was failing and very bad all the time; that the expression on her face was very simple, at times-idiotic, and that her mind seemed a blank.
Another witness who rented a small house from the deceased adjoining her house and who during January, the month the alleged will was executed, saw the deceased two or three times a day, testified that deceased was insane on the 15th of January, and that on the date the will was executed she was no better mentally or physically; that at the time the will was executed and for some time prior thereto she was always in
It appears from the testimony that the purported will was prepared by ,E. C. McClellan, a notary public, some three or four days before" the date of the execution of the same; that Mr. McClellan and his wife were the only persons present at the time of the execution of the will, and that Mrs. McClellan had urged the deceased to make a will; that the McClellans were intimate friends of Mrs. Sheldon, who is charged in part with the procurement of this will in her favor; that the McClellans lived about ninety feet from the home of Mrs. Abel, and were social and intimate friends and called daily on the deceased; that on the day when the will was executed - Mrs. McClellan waited with Mrs. Sheldon until the nurse and Mr. Abel had left the house, and there was no one present at the home save Mrs. Sheldon, who, during the time the will was being executed, was out on the porch and had Mr. McClellan bring over the typewritten will which he had prepared for execution; that there was no one present at the time of the execution of the will save Mr. McClellan and his wife, who signed as witnesses to said will; that there was not a word changed in the typewritten will by Mrs. Abel, and the signature to said will discloses a signature which, if not connected with the will itself, would be impossible to recognize as the signature of Mary Abel; that the deceased was either so weak mentally or physically that she did not know how to spell her own name correctly.
Many exhibits were introduced showing the signature of Mary Abel to cheeks and letters which were submitted to the
On the day the will was executed, Mr. McClellan testified that he was home all day, and that his wife had informed him that the respondent and the nurse had left the Abel house; that he knew that Mrs. Abel had been sick for six months before she signed the will, and that he had prepared the will upon the information of, and solicitation by, his wife, Mrs. McClellan, who the evidence discloses was the intimate friend of Mrs. Sheldon, the beneficiary under the will; that he had this typewritten will prepared for several days before it was signed; that -he was intimately acquainted with Mrs. Sheldon, who often visited his home, and nearly always talked about the proposed will; that Mrs. Sheldon was at the Abel house when he went there, and on the front porch of said house when he left after the alleged execution of the will; that he never told Mr. Abel, the contestant, anything about the will; that Mrs. Abel never gave him any instructions about the contents of the will, and that after it was executed he delivered it to Mrs. Sheldon; that at the time of the execution of the alleged will Mrs. Abel said nothing about any of her other relatives.
This condition of affairs existing, and the circumstances
And particularly, has this been held to be the rule when the trial court has declined to interfere. (Petefish v. Becker, 176 Ill. 448, 52 N. E. 71; In re Allison’s Estate, 104 Iowa, 130, 73 N. W. 489; Gardner on Wills, p. 332.)
However, in this ease the record discloses no such showing for appellant. But this court has repeatedly held that, where there is substantial evidence to support a judgment or verdict, even though the evidence to a degree be conflicting, it will not disturb such verdict or judgment, and in the present case we believe the transcript discloses that such substantial evidence exists, and hold accordingly.
Appellant further urges as reversible error misconduct of the jury. It appears from the affidavits of three of counsel for appellant that during the progress of the trial, but not after the jury were instructed and placed in the custody of an officer to consider the verdict, some of the jury became separated, and were not in the custody of the officer. It is not claimed by the appellant that the jury was allowed to sepárate after the instructions of the court had been given and while they were considering their verdict, nor is it shown
The authorities cited by appellant are not in point, for the reason that those cases wherein judgment had been reversed, because of the separation of the jury, applied to cases where the jury had retired after being instructed by the court to consider the verdict. In another case cited by appellant a judgment was reversed because of an improper separation during the trial of a criminal action, wherein, during the progress of the trial, a juryman became separated from the jury, and without the custody of the sheriff; the court holding that the mere fact of his separation in such a case, as distinguished from a civil case, was ground for reversal, unless the presumption is sufficiently rebutted that the juror was not improperly influenced or tampered with, or that the appellant’s rights were prejudiced or suffered harm. (17
This same observation with reference to the jury being improperly influenced or prejudiced is equally applicable to the error assigned by appellant’s counsel of certain improper language and argument alleged to have been used by Attorney Massey, one of the chief counsel for contestant, in his argument before the jury. The court evidently, in passing its own judgment, did not consider the language complained of sufficiently harmful or injurious to warrant a judgment otherwise than he rendered. (Lake v. Tolles, 8 Nev. 285; Duffy v. Moran, 12 Nev. 97; Van Vleet v. Olin, 4 Nev. 95, 97 Am. Dec. 513.)
In other jurisdictions where the verdict of a jury is merely advisory in a will contest, as it is in the present case under consideration, the rule prevails, as in this state, that the verdicts of juries are merely advisory, and can fee totally disregarded or accepted as a trial court decides. (Bryant v. Pierce, 95 Wis. 331, 70 N. W. 297; In re Jackman’s Will, 26 Wis. 104; Chafin Will Case, 32 Wis. 569; Wright v. Jackson, 59 Wis. 584, 18 N. W. 486; Loughney v. Loughney, 87 Wis. 101, 58 N. W. 250; Fay v. Vanderford, 154 Mass. 498, 28 N. E. 681; Newell v. Homer, 120 Mass. 277; Hudson v. Hughan, 56 Kan. 152, 42 Pac. 701.)
After a careful review of the transcript on appeal, the bill of exceptions, and authorities presented, we are of the opinion that the judgment should be affirmed, and it is so ordered.
Concurrence Opinion
concurring:
We concur in the judgment and in the opinion of Sweeney, J., except in so far as it holds that the verdict of the jury is simply advisory, and as to that portion of the