76 Neb. 823 | Neb. | 1906
In 1867 Neis Isaac and his two brothers came to Nebraska, and eac.i took up a homestead in Pawnee county in the same neighborhood. Neis Isaac and his brother Fred were bachelors. Some years later Fred Isaac died from injuries received in an accident, and Neis purchased from the administrator of his estate the 160 acres of land of which he died seized. Neis resided on his own homestead until a short time previous to his death, living alone and usually renting his two farms. About ten years previous to his death, which occurred August 9, 1902, Frederick Southard rented from him the place formerly belonging to his deceased brother, and continued as his renter up to the time of his death. The evidence is quite conclusive that Neis was a strong, hearty man up to a date not longer than one year previous to his decease; that something like two weeks previous to his death he left his own house and went to live with his renter, Frederick Southard, at whose place he died from inflammation of the bladder. On July 30, 1902, he executed his last will and testament, by the terms of which he devised to his renter, Frederick Southard, and Alvaretta Southard, his wife, the 160 acres of land upon which they were living as his tenants. To his brother, Swen A. Isaac, he bequeathed $10. The balance of his estate he bequeathed to his other brothers and sisters who were then living, and to the legal heirs of his brothers and sisters who were dead. He named W. J. Halderman as executor of this will. The will was admitted to probate, but before the estate was finally settled the contestants moved to have the probate thereof set aside, and to be allowed to offer objections, which was done. Upon a trial in the county court the will was again admitted to probate, and from this order of the county court an appeal was taken by the contestants to the district court.
The objections made to the probate of the will are (1) That the instrument is not executed as required by law; (2) that it is not properly attested; (3) that at the date
The evidence discloses that Neis Isaac, the testator, could hot read, und it is earnestly insisted that the evidence fails to show that his name was signed to the will by his express direction as required by our statute.- The testimony relating to the execution of the will may be briefly summarized as follows: On the day previous to the making of the will the decedent asked Dr. Plehn, who attended him in his last illness, to call on W. J1 Halderman, a banker of the town of Burchard, and with whom the decedent had transacted his banking business for many yéars, and request him to come to the house and write his will and to bring witnesses. On the next evening Mr. Halderman, together with his son, Fulton Hálderman and Dr. Plehn, drove out to the decedent’s farm occupied by Southard, and found the decedent sitting or lying in a hammock in the yard. The elder Halderman and decedént went into the house and into the room occupied by Isaac, where the will was written. Halderman testified thát Isaac would dictate to him a section of the will, which
We have read with care the voluminous record containing the evidence in this case, and can find no testimony which would go to support a verdict, if such had been returned, that the testator was of unsound mind or not perfectly capable of transacting business at the time the will was made. He had lived in Pawnee county since 1867. He had accumulated property estimated to be worth about $20,000 at the time of his death. His mental capacity and good business judgment had not been questioned up to
“It may be a question of some difficulty to determine in all cases whether a witness has shown himself competent, nor do we intimate that he may not be able to state to .the jury his opinion, after showing that there were acts and appearances of the party which he is unable to .describe to the jury, but which left an impression upon*828 his mind; but in the absence of this, and where the testimony of the witness only goes tbe length of showing acts which are entirely consistent with sanity, and which have not the slightest tendency to show insanity, it would be a dangerous rule which would permit his opinion to be received.” The reason for this is well stated by the same court in Beaubien v. Cicotte, 12 Mich. 459:
“The general doctrine is, that all witnesses speaking from observation must, as far as possible, state such facts as they can give as the basis of their opinion. This rule does not require them to describe what is not susceptible of description, nor to narrate facts enough to enable a jury to form an opinion from those alone. This would be impossible; and if it could be done, there would be no occasion for any opinion from the witness. * * * But, if witnesses were not compellable to state such facts as are tangible, there would be no means of testing their truthfulness. When they state visible and intelligible appearances and acts, others who had the same means of observation may contradict them, or show significant and explanatory facts in addition; and if their story is fabricated, or if they describe facts having a medical explanation, medical experts may detect falsehood in inconsistent symptoms, or determine how far the symptoms truly given have a scientific bearing.”
We fail to discover any evidence of undue influence exerted upon the testator by Frederick Southard or his wife. It is true they resided on the testator’s farm for ten years or more, and had the opportunity to approach and influence him, but opportunity alone is not sufficient. It is quite evident that the deceased was well pleased with Southard’s management of his farm and that he took a great liking to Southard’s children, a young boy and girl. The children apparently reciprocated this kindly feeling and were in the decedent’s company a great deal. He often took them to town and expressed great love for them, and on several occasions had said that he would will them the farm upon which their father and mother resided. It
We recommend an affirmance of the judgment.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.