48 Neb. 156 | Neb. | 1896
On the 25th day of October, 1890, Joseph Manning made, executed, and delivered to Mary Hay a warranty deed purporting to convey to the latter, his niece, all his real estate and personal property and effects. His property consisted of a large number of lots in the city of Florence, in the county of Douglas, and about $1,200 in money. The consideration for making the conveyance, as expressed in the deed, is “that the said Mary Hay has undertaken and agrees to furnish to the grantor a good and comfortable home in her family, and suitable support during the remainder of his natural life, and at his death a suitable burial, all at her own expense.” On the 6th day of November, twelve days after the delivery of the deed, Manning died intestate at the home of Mrs. Hay, in the county of Douglas, and subsequently William Col-burn was duly appointed administrator de bonis non of the estate of said Manning, and qualified as such officer. On the 18th day of January, 1891, Mary E. Miller, Lizzie Rogerson, John Morrisey, and Maggie St angelan, the grandchildren and sole heirs at law of the said Joseph Manning, deceased, the said administrator joining with them, brought this action in the court below against the said Mary Hay, and William Hay, her husband, to annul and cancel said deed, on the ground that the grantor at the date of the execution of the instrument was of un
Complaint is made in the brief of the form in which the issue was submitted to the jury, counsel claiming that the question propounded to the jury represented a question of law instead of one of fact from which the conclusions of law could be drawn by the court. No exception was taken by the defendants to the form in which the question was submitted at the time the order was entered, nor was any objection made upon that ground either in the motion for a new trial or in the petition in error; hence, if there was any error in the decision, it is not available in this court. Moreover, the question was not objectionable on the ground on which it is assailed. It submitted to the jury for their determination purely an issue of fact, namely, whether Joseph Manning, on the 25th day of October, 1890, and at the time he executed
It is urged that the court committed error in permitting non-expert witnesses for the plaintiffs to state their opinions as to the mental condition of said Joseph Manning. Counsel take the ground that the opinion of a witness not an expert is not competent to prove the sanity or insanity of another, save and except in the case of a subscribing witness to a will. Whatever may be the rule elsewhere, it is not the law in this state. As early as Schlencker v. State, 9 Neb., 241, it was held that the opinion of a non-professional witness is competent evidence upon the sanity or mental condition of the accused, where such opinion is based upon facts within his personal knowledge and which he has previously detailed before the jury. The doctrine announced in the above case has been followed with approval in Polin v. State, 14 Neb., 540; Burgo v. State, 26 Neb., 643; Shults v. State, 37 Neb., 481; Dewey v. Allgire, 37 Neb., 6; Pflueger v. State, 46 Neb., 493. In the case at. bar it was disclosed that each of the non-expert witnesses called by the plaintiffs was well acquainted with Manning in his lifetime, and had sufficient opportunities of observing him, and that the witness did not give his opinion as to Manning’s sanity or mental condition until after he had stated the facts to the jury upon which such opinion was based. We discover no error in the admission of the non-expert testimony prejudicial to the rights of the party now complaining.
It is finally insisted that there is no proof of mental weakness of said Joseph Manning at the time of making the deed to Mrs. Hay, sufficient to invalidate the conveyance. Numerous witnesses were examined’ upon this branch of the case, — about an equal number on either side, — their testimony making nearly 450 type-written pages. We have read it all, and without entering upon a detailed consideration of the evidence, it may be said that introduced upon behalf of the defendants tends to show
The finding upon the controverted issue in the case being supported by sufficient competent evidence, the decree setting aside the deed must be
AFFIRMED.