73 Neb. 756 | Neb. | 1905
Charles A. Smith, Avho for about 18 years prior to his death resided in, and at the time of his death was a resident of, Kearney county, Nebraska, departed this life March 4, 1903, in the city of Minden, leaving as his sole and only heirs his AvidoAV, Lillie A. Smith, and his daughter, Alta Smith, a minor of the age of seven years, and leaving an estate consisting of real estate of the value of $12,000, and personal property of the value of $1,000. Within six days after the death of Charles A. Smith, his widow, Lillie A. Smith, had reduced to writing a paper purporting to be the nuncupative will of Charles A. Smith. A petition was duly filed in the county court of Kearney county asking that this alleged Avill be admitted to probate. Objections to the probate of the Avill were filed by
It is urged by able counsel for the proponent that Deborah A. Pinkham, the mother of deceased, has no pecuniary intere,st whatever in the estate of her deceased son, and therefore could not legally institute or conduct proceedings to contest his will. This contention is Avell supported in authority, and, Ave think, cannot be successfully contravened. McDonald v. McDonald, 142 Ind. 55; Brewer v. Barrett, 58 Md. 587; Taff v. Hosmer, 14 Mich. 255; Jele v. Lemberger, 163 Ill. 338. This position is followed by invoking the rule, too Avell established in this court to require citations of authority, that a motion for a new trial is indivisible, and, when made jointly by two or more parties, if it cannot be allowed as to all, it must be overruled as to all. And the same rule is invoked with reference to the joint petition in error filed in this court.
The question, then, arises, can this rule be invoked for the purpose of denying a.minor defendant a hearing in this
The next question that confronts us is as to the sufficiency of the testimony contained in the bill of exceptions to prove the paper offered for probate A\ras the nuncupative Avill of Charles A. Smith, deceased. Certain facts connected Avith the death and attempted distribution of the property of Charles A. Smith are not controverted, and these may he said to be clearly proved. One fact is that about 10 days before his death he called on his attorney, Honorable J. L. McPheely, and gave a memorandum from Avhich he desired a written will to be drafted by his counsel; that for about a week before his death Charles A. Smith had been considerably indisposed and bedfast most of the time, and under the care of his family physician; that on the 3d day of March, at 8:30 o’clock A. M., the cónversation relied upon to establish the alleged nuncupative Avill took place at the bedside of deceased in the presence of his business partner, W. C. Taylor, and his wife and little daughter. This conversation can be best discussed by setting out somewhat in extenso the testimony
Q. What time in the morning 'were you there? A. It was after eight o’clock, because I had opened up and then went. down. Q. Now, what part of the house Avere .you in that morning as compared with the room he occupied? A. Well, when I 'went in I just Avent to the door, and he was talking to Lillie and the little girl. Q. Did you go inside the room occupied by him? A. Yes, I did, but not right aAvay — not at first. He Avas talking to them. Q. Where was he Avhen you Avent into the room occupied by him? A. Lying there in the bed. Q. Who was in the room at the time? A. The little girl and Lillie his wife. Q. You mean Alta, the daughter? A. Yes, sir. Q. And Lillie A. Smith, his Avife? A. Yes, and I went in right aAvay. I just AAraited a moment. He AAras talking to them. Q. What was the wife doing at the time, aside from talking? A. She Ayas crying. Q. What part of the bed was she sitting on? A. On the foot. Q. Foot of the bed? A. Yes. Q. Where was Alta, the daughter, the little girl? A. She was right by the father. Q. What did you hear Charles A. Smith, the deceased, say at that time in regard to the condition of his health? A. Why, he said he wasn’t going to live any longer. Q. What did he say as to what disposition he wanted to make of his property? A. He said he wanted the, little girl to have $1,000 when .she was of age, and he wanted his wife to haATe‘ the rest; and then he said that he Avanted her to have the rest, because it cost so much to educate and raise the child that she ought to have it that way; and they talked on that Avay for quite a while. Q. Was there any reference, or anything said or made, to any writing made by myself, Mr. McPheely? A. He said before I went to leave — I told him I Avould have to hurry and get up and fix things for dinner — “Well,” he says, “now you remember it and have it as Mac has it wrote doAyn,” he says, “as Mac has it.” Q. What reference did he make to yourself during the conversation, as knoAving Avliat he wanted? A. Why, he
Alta Smith, examined by Mr. McPheely:
Q. Do you remember of a talk with your father the morning.before he died, in your house? A. Yes, sir. Q. Who was present at that time, Alta, I mean who was there? A. Mamma and me and Will. Q. Who do you mean by Will? A. Will Taylor. Q. Will Taylor, the gentleman who was just on the witness stand? A. Yes, sir. Q. Where was your father, in bed or sitting up, at that time? A. In bed. Q. Who was he talking to? A. Mamma and me. Q. And was Will Taylor present at the time — was he in the room? A. He just come in. Q. What was your mamma, doing at the time, aside from talking? A. She was crying. Q.. What did your father say about whether he would live or not? A. I don’t know about that. Q. What did he say about what he wanted done with his property? A. He said for me to get $1,000 and mamma to get all the rest. Q. Said something to Mr.. Taylor, or do you remember about that? A. I don’t remember that. Q. Do you remember anything he said except— A. Only— Q. What lie wanted you to have? A. He said, for me to get $1,000. Q. And your mamma the balance, all the. rest? A. Yes.
Lillie A. Smith, examined by Mr. McPheely:
Q. What business Avas your husband engaged in at the time of his death? A. Restaurant. Q. Are you acquainted Avith William Taylor, the Avitness who just testified? A. Yes, he had a home with us from the time he was nine years old, Avith the exception of about two years and a half he Avas in Wisconsin. Q. Were you present at the time of your husband’s death? A. Yes, I Avas. Q. How long had he been confined, before his death, to his hed? A. Well, he had been in his bed, up and down, for a week,
Cross-examination. Q. Referring to the morning of the third, when the statements were made by Mr. Smith to which you have sworn, had he taken.suddenly ill, or was he worse then than he had been, to all appearance, for the week hack? A. Well, I didn’t think very suddenly. It just gradually came on he was getting worse all the time. Q. Why was the little girl in there? A, Because it was her custom to come in and see her papa before she went to school. Q. Had she been going to school, Mrs. Smith, all the time up to this morning? A. Why, I think she hadn’t missed any days that I know of. Q. Did she go to school the'morning of the third after that? A. Yes, she went to school. Q. Who had been the attending physician? A. Dr. Martin. Q. When had you first sent for Dr. Martin? A. I got medicine from Dr. Martin — he didn’t consider only his nerves, I supposed. I spoke to my husband that morning, and said: “I guess I had better call the doctor.” And he said: “I have medicine to last today; I don’t know whether you had better or not.” Then he said afterwards: “I guess I had better wait,” he said, “if it is my nerves I don’t think it is necessary,” hut he said, “I am worse than you think, or the doctor.” Q. How long prior to that time was his last visit to your husband? A. I don’t remember the date. Q. Had it been four or five days? A. I guess it was that long. I cannot remember the date of it. Q. When did you next call Dr. Martin? A. On the third, in the evening. Q. What time about? A. I think about six, somewhere along there. I don’t know the exact time, as I remember. Q. Had he said anything about the disposition he desired to make of his property before Mr. Taylor
Section 128, chapter 23, Compiled Statutes, 1903 (Ann. St. 4993), provides as follows:
“No nuncupative will shall be good when the estate thereby bequeathed shall exceed the value of one hundred and fifty dollars, that is not proved by the oath of three witnesses, at least, that were present at the making thereof, nor unless it be proved that the testator, at the time of pronouncing the same, did bid the persons present, or*765 some of them, to hear witness that snch was his will, or to that effect; nor unless such nuncupative will was made at the time of the last sickness of the deceased, and in the place of his or her habitation or dwelling, or where he or she had been resident for the space of ten days or more next before the making of such will, except when such person was unexpectedly taken sick, being from home, and died before he or she returned to the place of his or her habitation.”
It will be noted that this provision of the statute requires that the will be proved by the oath of at least three Avitnesses who Avere present at the making thereof, and that it be proved that the testator, at the time, did bid tin; persons present, or some of them, to bear witness that such Avas his will, or to that effect. Under this provision of the statute it must be proved that the deceased, while uttering the words offered as a will, had not only a present testamentary intention, but also an intention to make an oral will, and that he intended that the words then uttered and no others should constitute his will. If he only gives instruction for a Avill that he desires to have reduced to writing, but fails to execute, the instructions cannot be sustained as a nuncupative avüL 1 Underhill, Wills, sec. 174; In re Will of Hebden, 20 N. J. Eq.. 473; Male’s Case, 49 N. J. Eq. 266; Porter’s Appeal, 10 Pa. St. 254; Reese v. Hawthorn, 10 Gratt. (Va.) 548; Ellington v. Dillard, 42 Ga. 361. Now which one of the witnesses to this will, from the evidence above set out, was called upon to bear witness in the presence of the others that the Avords then spoken were intended to be the last Avill and testament of Charles A. Smith? It certainly Avas not the minor defendant Alta Smith, for practically all she remembered of the conversation was that her father intended to give her fl,000, and Let her mother have the balance. She did not remember, nor assume to remember, that he called on either Mr. Taylor or her mother to witness that any particular words Avere his last will, or anything to that effect. If the will offered for probate is sustained, and if it were held that
“All beneficial devises, legacies and gifts whatsoever, made or given in any will, to a subscribing Avitness thereto, shall be wholly void, unless there be two other competent subscribing Avitnesses to the same; but a new charge on the land of the devisor for the payment of debts shall not prevent his creditors from being competent Avitnesses to his will.”
This section of the statute plainly declares the policy of preventing the proof of wills from being established by interested Avitnesses. While it is true that the Avords, “subscribing Avitnesses,” Aised in this section, technically construed, Avould only apply to a Avitness to a written Avill, and not to the attesting Avitness of an oral testament, yet, if this narroav construction be given the section above quoted, it destroys the effect of the use of the Avords, “all beneficial devises, legacies and gifts whatsoever, made or giAren in any Avill,” for there can only be, technically, a subscribing Avitness to a Avritten will; but, if a construction be given this section in conformity AArith the manifest intention of the hiAvmakers, AAre will treat “subscribing Avitness” as having been used as synonymous with “attesting Avitness,” or a witness by whose testimony a will must be established. We are cited by counsel for proponent to a well-Avritten opinion from the supreme court of Georgia
There is another question urged for consideration, and that is as to whether the proof is sufficient to establish the fact that the will offered for probate was made at the time of the last sickness of the deceased. The expression, “last sickness,” or “last illness,” occurs in nearly all American statutes providing for nuncupative wills, and is borrowed from the English statute, 29 Charles the Second, of which our own statute is a practical reenactment. The leading American case which construes the term, “last sickness,” in statutes of wills was written by the learned Chancellor Kent in Prince v. Hazleton, 20 Johns. (N. Y.) 501, and it Avas there held, by a divided court, however, that the term, “last sickness,” ivas equivalent to meaning “in extremis,” or an illness or sickness so violent that the testator had not .time, nor opportunity, nor means at hand, after making his oral will, to make a written will in legal form. This decision is generally
In view of the conclusion to be reached, it is not necessary to determine the question whether real estate is a subject of devise by nuncupative will under our statute. The only question involved in this controversy at the present time, and now before us for adjudication, is whether or not the Avill offered in the county court shall
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed.