100 Neb. 791 | Neb. | 1917
The proposed will of Swan Johnson, deceased, was contested in the county court of Kearney county and there admitted to probate. Upon appeal to the district court for that county the probate of the will was sustained, and the contestants have appealed to this court.
The deceased was a retired farmer, living at the time of his decease at Axtell, in Kearney county, and he died about the 29th day of September, 1912. He left surviving him his wife, one of the proponents, Anna Lovisa and four sons, Edward H., Arthur G., Hardie L., and Albert Johnson, and one daughter Annie E. Jacobson, and two children of a deceased son, and Charles F. Johnson, a son of the decedent by a former wife. The decedent left property, real and personal, of value variously estimated from $36,000 to $50,000. This property consisted mainly of three farms of 160 acres each, and a house and lot in the town of Axtell. The proposed will devised the three farms, one to Edward H. Johnson, one to Arthur G. Johnson, and one to Hardie L. Johnson. To his wife he gave the town property, and a life interest in the three farms and all of his personal property. To his his daughter, Annie E. Jacobson, and his son, Albert Johnson, he gave each the sum of $3,600, and provided that these bequests should be paid by the devisees of the land, and that they should constitute a lien upon the land devised subject only to the lien of the widow’s life estate. The principal grounds of contest were that the deceased “was not possessed of sufficient mental capacity to make a valid will,” and “was not of sound mind and disposing memory,” and that the execution of the proposed will “was brought about through undue influence” by his wife and his sons, Edward H., Arthur G., and Hardie L. Johnson, and that the deceased at the time of executing the proposed will was laboring under delusions and mistakes in regard to the value of his property and in regard to “certain indebtedness which he believed to be due from his son, Charles F. Johnson,” with no such
At the time of signing of the proposed will, Charles F., the decedent’s son by his former wife, was nearly 50 years of age, and was residing with his wife and children in Omaha. The decedent was about 70 years of age, and had been for several months suffering with a fatal disease, which caused him much suffering and caused his death a few weeks after the signing of the proposed will. The proponent, Edward, was residing on one of the farms of the decedent, a few miles from the town of Axtell, where the decedent was residing, and on Sunday, the day before the proposed will was signed, he, with the other sons to whom the farms were devised, were at the home of their father and mother, and the next morning Edward took the decedent to a lawyer’s office, where the will was drawn and executed. There, is evidence that Charles and Edward were not on friendly terms, and it is the theory of the contestants that Edward, with the assistance of his • mother • and the other substantial beneficiaries under the will, unduly influenced the decedent in executing the same. The proposed will states as the reason for disinheriting Charles that “I relinquish all right and cancel all indebtedness from Charles F. Johnson to me. * * * The indebtedness due me from Charles F. Johnson constitutes notes and debts which I paid for him about twenty-four years ago in the principal sum of about seven hundred dollars no part of which he has ever paid me.” There is evidence that when Charles was a young man his father assisted him to obtain title to a piece of land, and that Charles occupied the land, for some time and became indebted, the land being incumbered, and unable to finish paying for the land. It was thereupon arranged between Charles and his father,
It is contended that the contestants cannot now object to this ruling because no offer of proof was made, and the following is quoted from the decision of this court in Blondel v. Bolander, 80 Neb. 531: “In order to predicate error upon the rejection of testimony, the party complaining of its exclusion must have made an offer of what he expected to prove, which would indicate to the trial court the relevancy of the testimony, and, in the absence of such offer, the action of the court in - rejecting the testimony will not be reviewed.” Many of the rules of evidence are necessarily precise and technical. The purpose of these rules is to elicit the truth, and not to set traps for the unwary. When a question is asked that does not “indicate to the trial court the relevancy of the testimony,” it is not error to exclude the testimony, unless the party propounding the question informs the trial court as to the relevancy of the testimony, and an offer of proof, that is, a statement of the nature of the evidence sought by the question, will enable the trial court to determine whether the evidence is competent. This rule is sometimes, though rarely, enforced in cross-examination. When the condition of the rec
In Isaac v. Halderman, 76 Neb. 828, it was said by Commissioner Duffie: “No right of the citizen is more valued than the power to dispose of his property by will. No right is more solemnly assured to him by the law. Nor does it depend in any sense upon the judicious exercise of that right. It rarely happens that a man bequeaths his estate to the entire satisfaction of either his family or friends. The law wisely secures equality of distribution where a man dies intestate, but the very object of a will is to produce inequality and to provide for the wants of the testator’s family, to protect those who are helpless, to reward those who have been affectionate, and to punish those who have been disobedient. * * * He is entitled to the control of his property while living, and by will to direct its use after his death, subject only to such restrictions as are imposed by law.” This, of course, is true if the document presented is in fact the will of the testator. ' The object of the trial is to ascertain whether it is his will, or is rather the will of those around him who seek to obtain the property for themselves.
When a man realizes that he is stricken with a fatal disease, a disease which causes excruciating suffering and must destroy his life in a short time, no matter how strong a man he may have been in health, he clings nervously to those of his relatives who may be around him. They represent to him all of the earthly support he has. If he alienates them, he must face the “King of Terrors” alone so far as things of earth with which he is familiar are concerned. And he is not always in a position to resist their influence. To take advantage of such a situation to have a brother unjustly disinherited is a fearful act, and yet it too often happens. The question then is whether the result is the will of the
Albert Johnson, testifying for the contestants, was asked: “Q. On or about this time, Mr. Johnson, did you have any conversation with your father concerning the provisions of the will in so far as they related to your brother Charley? A. Yes, sir. Q. What was said at that conversation?” This was objected to, and the objection sustained. The contestants then offered “to prove by this witness that at this conversation the father stated to the witness that he had always wanted to give Charles something, but that he was no longer his own boss, and had been prevented by the boys from doing so.” The objection was still sustained, and the contestants excepted to the ruling. Such evidence, it is almost universally held, is not competent as substantive proof of undue influence; but, if the proponent had declared “that he had alwmys wmnted to give Charles something,” evidence of that fact was competent as tending to show the condition of his mind and feeling toward Charles, and that part of the evidence offered should have been allowed.
The court also erred in striking out evidence as to the result of taking over Charles’ farm by his father.
It is complained that the court instructed the jury that, unless they were convinced by a preponderance of the evidence that there was undue influence, they could not reject the will on that ground. There is some
It seems that the county court in admitting the proposed will to probate found that it had been altered since its execution. This was an appeal from that decision to the district court, and ' upon such appeal the district court tries all questions cíe novo. No question as to the alteration appears to have been submitted to the jury, and we are not referred to evidence in the record upon which the court acted in admitting the pro-, posed will. in evidence. This matter is not made very plain in the briefs, and it is difficult to tell what are the contentions of the parties in that regard.
For the reasons stated, the judgment of the district court is reversed and the cause remanded for further proceedings in that court.
Reversed.