109 Neb. 671 | Neb. | 1923
This is ah appeal from the judgment of the district court for Douglas county denying the probate of the will of Vaclav J. Kubat, deceased, who'se will was contested
“First: Was Vaclav J. Kubat, on February 24, 1920, of sufficient mental capacity to make a will? Answer. No.
“Second: Was the signature of Vaclav J. Kubat to the document dated February 24, 1920, procured by the undue influence of Joseph L. Kubat and his family? Answer. Yes.”
Judgment was entered in accordance with the verdict thus rendered by the jury, and proponents are now appealing to this court. ■
Appellants make three assignments of error, as follows: First.' The court erred in not directing a verdict for proponents on the ground that there was no' evidence of undue influence.' Second. The court erred in not directing a verdict in favor of the proponents on the ground that-there was no evidence of mental incapacity. Third. The court erred in giving instruction No. 5.
The first issue presented for our consideration is: Was the deceased testator of sufficient mental capacity to make a will at the time he did' on February 24, 1920 ? On this issue of fact the jury, being properly instructed, found the testator 3id not have sufficient mental capacity. We agree to their finding.
On the question of mental capacity to make a will, our view of The qualifications requisite, is precisely expressed in the court’s instruction No.. 5, and we quote it with approval: - . . • .
*673 “Want of sufficient mental capacity to make a will does not necessarily imply a want .of mental capacity in all -respects or upon all subjects. A person may be entirely sane upon one subject, or a number of subjects, and. yet not have the mental capacity requisite to make a valid will. The kind of mental capacity, whiph.the. law requires as essential, to the making of .a. valid, will is that which relates to the person’s property, such capacity as will enable the person, to know and recollect, the property to be disposed, of, -to have a, reasonable conception of the value and uses of property or money, and a reasonable conception of how--property or,money may be employed or enjoyed. If a person lacks a capacity and knowledge in relation to money or property, such person is not competent to make a valid .wiU, even though he or she may be entirely' rational on other subjects, or have a good recollection of . early events. or early .acquaintances.”
This fully explains the philosophy of. a testator’s attitude and. what constitutes .true .mental capacity . to • make a will, and shows Avherein ta mental deficiency .lies and mental competency rests. The instruction is'in accordance Avith the rules laid doAvn in. such cases as Brugman v. Brugman, 93 Neb. 408, and Hacker v. Hoover, 89 Neb. 317.
Thus it is plain what, this court determines as mental capacity to execute :a - valid instrument. There is no question about, the laAv of this state -oil that subject. Applying these, principles to the-instant case, .it plainly appears of record that on February 24,-1920, the-deceased .testator did, not have: sufficient, mental capacity to make a valid will, remembering those to whom he was under obligation, the amount and extent of his-property, Avhere it Avas located, .and its .nature and character.. Such Avas shown . in,, the.. record, and-. that - is !why.'-the ■ jury answered that .the testator did not have sufficient -mental capacity. -He was, at -the' time,- feeble-' .and. helpless, stricken .with paralysis, his second' stroke.- • The:- jury
In Underhill on Wills, sec. 125, it is said: “The mental and physical capacity of the deceased is to be considered in determining what degree of influence will vitiate his will. * * * The will of one whose independence has been weakened by indulgence in dissipation, or whose stamina, physical or mental, has been broken by illness or old age, may be easily overcome. * * * Every case depends wholly upon its own particular facts and attendant circumstances.”
The next question for our consideration is one of undue influence, which is closely allied with the testator’s weakness of body and mind. The finding of the jury is sustained by certain facts and the inferences therefrom which they bear to the whole subject. The intermeddling with testator on subjects calculated to harass and annoy him, hurrying him purposely to make a will without proper deliberation, is considered undue influence.
“The question whether there was fraud or undue influence in procuring the will, on the part of the plaintiff, and whether the will was executed by the testator without a knowledge of its contents are questions of fact within the exclusive province of the jury, which includes the credibility of witnesses; and' the court is not at liberty to review and revise the action of the jury, unless there was not sufficient evidence to sustain a verdict against the will.” 28 R. C. L. 405, sec. 417. See, also, Blume v. Hartman, 115 Pa. St. 32, 2 Am. St. Rep. 525, and note, p. 532.
The testator at the time of his death on February 29, 1920, was about 83 or 84 years old. He was a Bohemian by birth, and had lived in Cedar Rapids, Iowa, for years. His family consisted of Mary Lenicek, daughter, Joseph L. Kubat and Charles H. Kubat, sons. After the death of his second wife he lived at different places, staying
Within a week of the time the will was made, Joseph L. Kubat borrowed a business form book from Mr. Krátky one of the subscribing witnesses. A form was selected and was used by Mrs. Porter, Joseph- L. Kubat’s daughter, in writing the will. The will gave to Mary Lenicek and Charles H. Kubat $1,000 each, to Joseph L. Kubat’s wife and three children $1,000 each, and to Joseph L. Kubat. the residue of the personal estate. There was no real estate.
Witnesses testified that Joseph propped the old man up in bed and gave him pen and ink to sign the will. Both subscribing witnesses testified that the document was not read aloud nor by Vaclav J. Kubat while they were there.
On the night before the execution of the will, Charles H. Kubat was called to Joseph’s house to draw his father’s will. Joseph produced a memorandum as to how he said the testator wished the estate to be divided. According to the memorandum, Charles H. Kubat and •Mary Lenicek were to receive $100 each, otherwise the memorandum provided for bequests in the same amounts and to the same people as did the will. At this point the testimony of Charles H. Kubat is as follows: “Q. Now, tell the jury just what you said when Joe gave you that list for that kind of a distribution. A. When Joe handed me that list, I looked it over, and father was lying there in bed, with his feet toward the north and his head toward the south, and I was right in the middle of the bed, in front of him, Joe right to the south of me. When I looked at it, I was surprised, and I said to Joe, ‘Joe, ’What does this mean, $100 to me and $100 to Mary? Why, you don’t mean that, Joe?’ He was half crying,
This tends to'show what-influence Joe’s family had in making and executing this will;-' that is, they were doing it, and not the old man. The- will is not the testator’s as such, as a matter of law and fact. , -
In Carroll v. Hause, 48 N. J. Eq. 269, the court said: “Against a beneficiary having ■ a téstator. under his control, with power to make his will the'will of-the testator, especially in-a case where;'the -testator has made an unnatural- disposition of - his- property, the law presumes undue - influence, -and puts' upon 'the beneficiary the burden of showing, affirmatively,- that when thé testator made h-is will hé did-not exercise his-power over the testator to his • own advantage áhd 'to the disadvantage of others having an equal or superior' claim upon the bounty of the testator.”
In Purdy v. Hall, 134 Ill. 298, the court said: “Naturally, the . mind; sympathizes, with the. body, in ,thac which debilitates,., and,., even when nqt otherwise impaired, it may become so wearied from long continued, serious and painful sickñess that'if is willing to purchase rest' and quiet at any pride, and when 'in that condition it is Suscéptiblé tó undue influence, and is liable to be imposed upon by fraud and 'misrepresentation, The feebler the mind of. the.-.tqstatqr, no .matter, from, what causer-whether. -from ¡sickness or otherwise — the -less evidence will'be required to - invalidate the will of such person.’-’- •-' - -
See, also, Hegney v. Head, 126 Mo. 619; Sheehan v. Kearney, 82 Miss.688; Whitelaw's Exr. v. Sims, 90 Va.
The testimony on the question of undue influence, as well as mental capacity of testator, was conflicting, in many particulars in hopeless conflict. We conclude that the attending facts and circumstances leading up to the making of the will, the provisions of the will itself as being unnatural and unjust, Joseph L. Kubat’s obi aining $4,300 in promissory notes for a consideration of only $11, the four members of Joseph L. Kubat’s family receiving $1,000 each, the apparent influence of Joseph L. Kubat and his family, all taken together, point clearly and unmistakably to the correctness of the jury’s findings. The case abounds with evidence of suspicious circumstances and is suggestive of fraud. By force of these circumstances and by force of truth portrayed in the record, nothing else is imposed upon us save to enforce the verdict of the jury and the judgment of the lower court by affirmance.
Affirmed.