119 Neb. 191 | Neb. | 1929
This is a proceeding which has for its object the allowance for probate of an instrument as the last will of Thomas Bayer, deceased. The county court allowed the instrument as the will, but upon appeal to the district court it was found not to be such will, which finding was reversed by this court (In re Estate of Bayer, 116 Neb. 670) and the cause was remanded for a new trial. The case is here again for review after a second trial in which the will was found not to be the last will and testament of the. deceased. The widow and three children of deceased appear as proponents of said will, while three other children appear as contestants. Thomas Bayer died April 20, 1924,, leaving a widow and seven children. The will in dispute was executed November 18, 1922. There is no question as to the proper execution of the will, but the contestants, urge that when the will was made the deceased did not have sufficient mental capacity to make said will, and that, it was the result of the exercise of undue influence. The proponents contend that the evidence is not sufficient to' sustain the finding of the jury against the allowance of said instrument for probate, either as to lack of sufficient mental capacity, or upon the question of undue influence.
In this state the burden is upon the proponents of a will to prove, not only the execution of the will, but the capacity of the testator. In Seebrock v. Fedawa, 30 Neb. 424, it. was said: “It is the duty of the proponents in the first instance to offer sufficient testimony of the capacity of the testator to make out a prim a facie case.” We are not prepared to say that, where the proponents prove the testator to have been capable of transacting ordinary business, he is required to go further in order to make a prima facie case of testamentary capacity. The proponents having established a prima facie case as to the testamentary capacity of the deceased, it is necessary, in order to defeat the will, that the contestants introduce sufficient evidence to overcome the presumption arising out of the prima facie case made by proponents. The burden of proof does not shift, but the burden of going ahead, as some authorities put it,
We reached this conclusion without reference to, or consideration of, the evidence offered in rebuttal by the proponents for the will. It consists of the testimony of more than 20 of the prominent citizens of the town in which the deceased lived, who were personally acquainted and closely associated with him, and who testified that he was a man of sound mind, capable of attending to his business, and did attend to it, up almost to the day of his death. At
The second question presented to us for our consideration is whether the purported will was executed as a result of undue influence. It is charged by the contestants that one of the proponents, a son of the deceased, exerted undue influence upon the testator, with the result that the instrument is not the last will and testament of the deceased. The burden of proving this contention is ordinarily upon the contestants, and competent proof is required that the said will was procured by undue influence in order to set it aside. In re Estate of Dovey, 101 Neb. 11. In In re Estate of Wilson, 114 Neb. 593, the rule is set out as follows: “Where it is alleged that the execution of a will was procured by undue influence, the burden is upon the party alleging it to establish that the testator was induced by improper means to dispose of his property differently from what he intended.” The following cases are cited: Seebrock v. Fedawa, supra; Boggs v. Boggs, 62 Neb. 274; In re Estate of Dovey, 101 Neb. 11; In re Estate of Fenstermacher, 102 Neb. 560; In re Estate of Kees, 114 Neb. 512; 40 Cyc. 1150.
In conformance with the foregoing opinion, the judgment is reversed and the cause remanded, with directions to enter judgment admitting the will to probate as the last will and testament of Thomas Bayer, deceased.
Reversed.