No. 23958 | Neb. | Apr 9, 1926
This is an appeal from a judgment of the district court of Gage county admitting to probate the will of John Frederick Kees, who died February 2, 1923. The will was
The contestant alleged lack of mental capacity on the part of the testator to make the will and also that the will was made by reason of improper and undue influence exerted by the proponent upon the testator.
At the close of the testimony the trial court directed the jury to return a verdict sustaining the will and codicil and, upon this being done, entered judgment accordingly. It is earnestly urged by the contestant that the court erred in thus directing the jury.
It appears that the testator emigrated from Germany to the United States in 1864, and finally located, in 1867, on a farm near Filley in Gage county, Nebraska, where he lived until his death. By exercising the virtues of economy and industry and with the help of a good wife, he accumulated considerable fortune and at the time of his death had property of the approximate value of $60,000. His wife died in 1902 and the couple were childless. After the death of his wife, testator lived on the farm, making his home with his tenants, except occasionally spending a part of the winter at an hotel in Beatrice.
The father of the testator had five children, all born in Germany. Besides testator, they were Frederick D. Kees, of Beatrice, John George Kees, of Nebraska City, John Berkhardt Kées, who remained in Germany, and Ernestina Bock, who also remained in Germany.. Frederick D. Kees, the proponent, located in Beatrice and became a prominent and successful business man. He had three children. John George Kees located in Nebraska City, and, while a man of good character and standing, did not prosper financially as did his brothers, the testator and the proponent. He had several children, among them a son who was crippled. John Berkhardt Kees died in 1918 leaving four children,
.After making the usual provisions with respect to the payment of debts, funeral charges and expense of administration, the will provided that the residue should be divided among the testator’s relatives as follows: To John George Kees, a brother, one-fourth; to Frederick D. Kees, a brother, one-fourth; to the children of Frederick D. Kees, John, Clara and Daniel, equally one-fourth; to Ernestina Bock, a sister, one-fourth. The will also made provisions for a further distribution of the share devised to Ernestina Bock in the event of her death. It will be observed that the heirs of John Berkhardt Kees are not remembered in the distribution of the testator’s estate, and the contestant is one of them.
At the time of the execution of the will, the testator was between 84 and 85 years of age, and although somewhat enfeebled by years and a stroke of paralysis, which affected his articulation, he was mentally alert and was perfectly able to understand and transact his business. . All of the witnesses who testified on this subject agreed that his infirmity did not affect his mental capacity. In fact, we do not understand that the contestant seriously urges the lack of mental capacity to make the will, except that his weakness rendered him more susceptible to undue influence. Under the evidence there can be no doubt that the testator had the mental capacity to make the will.
Was the will the result of improper and undue influence exerted by the proponent upon the testator? The testimony upon this phase of the case is entirely to the effect that no undue influence was exercised by any one in procuring the execution of the will. The testimony shows
The most that can be said in support of the contestant’s theory of undue influence is that an opportunity was afforded proponent to influence the testator, coupled with the fact that in 1905 the testator had made a codicil in which he named his brothers and sister as equal beneficiaries, and the further fact that testator in 1910, while on a trip to Germany, stated that all his relatives should share in his estate. The will recited: “In omitting from this will those of my relatives who are not named herein, I am not un
The question of undue influence in the making of wills has been frequently before this court, and it has been held that the burden of proof is ordinarily upon the party who alleges undue influence to prove that fact. In In re Estate of Stuckey, 105 Neb. 641" court="Neb." date_filed="1921-02-10" href="https://app.midpage.ai/document/stuckey-v-stuckey-8032233?utm_source=webapp" opinion_id="8032233">105 Neb. 641, it was held: “An unequal distribution of property among the children of testator, of itself, raises no presumption of the exercise of undue influence. Undue influence, in order to invalidate a will, must be of such character as to destroy the free agency of the testator and substitute another person’s will for his own.” In In re Estate of Fenstermacher, 102 Neb. 560" court="Neb." date_filed="1918-06-15" href="https://app.midpage.ai/document/ludwig-v-bressler-6663095?utm_source=webapp" opinion_id="6663095">102 Neb. 560, it was held: “In an action to set aside a will because of improper or undue influence exerted upon testatrix, the burden of proof is ordinarily upon contestant.” In In re Estate of Dovey, 101 Neb. 11" court="Neb." date_filed="1917-03-16" href="https://app.midpage.ai/document/dovey-v-dovey-6662613?utm_source=webapp" opinion_id="6662613">101 Neb. 11, it was held: “When it is shown that a will has been signed and attested by the statutory number of witnesses, and it is conceded that the testator was of sound mind, the will is presumed to be valid. In order to set it aside on the ground that it has been procured by undue influence, competent proof is required, and the burden of proof is ordinarily upon the contestant.” In Boggs v. Boggs, 62 Neb. 274" court="Neb." date_filed="1901-06-19" href="https://app.midpage.ai/document/boggs-v-boggs-6653854?utm_source=webapp" opinion_id="6653854">62 Neb. 274 it was held: “The burden is upon the contestants to establish undue influence, and in so doing it is not enough to show that the circumstances attending execution of the will are consistent with the hypothesis of its having been obtained by undue influence; it must be shown that they are inconsistent with a contrary hypothesis.”
Under this will, one-half of the testator’s estate is given to the proponent and his children, who according to the evidence are prosperous and financially well fixed, while other relatives in far less favorable circumstances are omitted. Whatever may be our individual views of the justice of the will, it must be conceded that, where capacity exists and no undue influence is exerted, a man has the legal rights to
In the light of the foregoing authorities, there is no aspect which may be taken of the evidence in which it may be sáid that undue influence entered into the execution of the will. This being true, it was proper for the court to direct the jury to return a verdict sustaining the will. The judgment of the district court is
Affirmed.