115 Neb. 761 | Neb. | 1927
This is a suit in equity to cancel and set aside a deed conveying 160 acres of land on the grounds that the grantor was incompetent and that its execution was procured by undue influence. From an adverse decree the plaintiff and certain defendants similarly affected appeal.
The land in question is the southwest quarter of section eight, township seven, range thirteen, in Otoe county, Nebraska. It was purchased by John G. Badberg in 1875 for $1,500 with a down payment of $400. Title was taken in his name and it became the family homestead for himself and H. Maria Badberg, his wife, and their two sons and three daughters. John G. Badberg died on May 5, 1883, leaving a will as follows:
“In the name of Gbd, Amen. I, John G. Badberg, of the township of Rock Creek in the county of Otoe and*763 state of Nebraska, being .of sound mind and memory do make and publish this my last will and testament. I give and bequeath unto my wife, H. Maria Badberg, my real and personal estate and do appoint C. W. Stahlhut and • G. W. Montgomery to be my administrators. My will is that my wife shall have charge of with the consent of the above named administrators. In case my wife H. Maria Badberg marries again after my death she only receives the third part of all my personal and real estate. I give and bequeath unto Gerdes J. Badberg all my real and personal property under the following conditions. 1st. That the said Gerdes J. Badberg shall work and stay on the above named farm until after our death. 2d. I give and bequeath unto Harm W. Badberg my son the sum of $5. ' 3d. I give and bequeath unto Maria C. Badberg married to Hilke Julfs the sum of $5. 4th. I give and bequeath unto J ohn H. Bad-berg the sum of $5. 5th. I give and bequeath unto Schwantie M. Julfs the sum of $5. 6th. I give and bequeath unto Stinje J. Badberg the sum of $200. 7th. I give and bequeath John G. Badberg, son of Stinje Badberg, the sum of $200 to be paid to him when he is of the age of 21 years. 8th. I will and bequeath unto Anke M. Badberg the sum of $400 Avhen she arrives of age, or 21 years. 9th. I will and bequeath unto Herman H. Badberg the sum of $1,000 and one team of horses, on condition that he stays with his brother Gerdes J. Badberg until he is 21 years of age. Should the above named Herman H. Badberg not stay with the said Gerdes J. Badberg until he is 21 years of age he is only to receive $500 and one team of horses. 10th. I will and bequeath unto Theda Maria Badberg the sum of $400 when she arrives at the age of 21 years. In witness whereof I have hereunto set my hand this 30th day of June, 1882.
“(Signed) J. G. Badberg,
“Hilke Maria Badberg.”
“Witnesses: G. W. Montgomery.
“C. W. Stahlhut.”
This will was admitted to probate June 11, 1883. When
On February 14, 1921, the mother, H. Maria Badberg, executed and delivered to Gerdes J. Badberg a warranty deed conveying to him the farm “ in consideration of the sum of one dollar and an agreement to support and take care of the grantor during the balance of her life and love and affection.” It was executed and acknowledged before a disinterested notary at the home of the grantor. She died intestate on June 10, 1924.
The appellants argue that H. Maria Badberg under the will of her husband took the absolute fee, that she was incompetent to make the deed, and that her execution of it was obtained by fraud and undue influence. The appellees claim that the will conveyed to the widow a life estate with a devise over in fee to Gerdes J. Badberg, attaching certain conditions to be performed by him, and that he is now the owner of the land.
The decree of the trial court found that the will of John G. Badberg devised the fee simple title to the widow; that she was competent and understood the nature of her act when she conveyed by warranty deed to Gerdes J. Badberg on February 14, 1921; that she was not influenced by him or any one else, and that he is now the owner under said deed.
It is not very important in this particular case whether the will conveyed to the wife the fee simple title to the farm with the power to dispose of it or whether it was the intention of the testator to devise the life estate to his widow and the remainder to his son, Gerdes. If the will were to be interpreted by us as showing the latter intention-on the part of the testator, then the son, Gerdes, on the
“Where it is sought to cancel a deed for the want of mental capacity of the grantor to make the instrument, the burden of proof is on the one who alleges the mental incapacity.” Brugman v. Brugman, 93 Neb. 408; In re Guardianship of Wessel, 114 Neb. 704. Tested by this rule, the plaintiff has entirely failed to show that her mother was incompetent at the time she executed the deed.' To go over the record and show the evidence of the competence of the mother would be a useless waste of time and space, particularly not justified in view of the fact that appellants, upon whom the burden rested, have failed in their briefs to point out any satisfying testimony that the mother failed to know what she was doing and the significance and effect of her act. On the other hand, the testimony of disinterested witnesses fully establishes in our minds that Mrs. Badberg was mentally competent and capable of making the deed. It appears that she had the capacity to understand what she was doing. She ordered it. She knew the extent of her property and she decided intelligently what she wanted to do with it. It cannot be said that she was incompetent or incapable of making the instrument.
Likewise, the burden rests on the one who attacks the conveyance to establish the fact of undue influence. In re Guardianship of Wessel, 114 Neb. 704. Especially is this proposition applicable here because ordinarily no influence is considered undue which arises out of affection, care, claims of kindred and family, or other intimate personal
For the reasons we have given, we are constrained to the opinion, upon examination of the entire record, that the judgment of the trial court was right and it ought to be and is, therefore,
Affirmed.