108 Neb. 298 | Neb. | 1922
This is a proceeding commenced' in the county court of Johnson county by Eugene B. Laflin, proponent, to probate the will of Lewis Hall Laflin, who died at his home near Crab Orchard, Johnson county, March 7, 1920. The will was executed June 4,1919, when testator was 77 years of age. He was a widower and left surviving him five children and two children of a deceased daughter. The name and age of each of the children of testator follow: Eugene. B. Laflin, 51; Edith Laflin Lovitt, 45; Guy E. Laflin, 44; Clay Laflin, 38; Katherine Laflin, now Damon, 32. All were married at the time of testator’s death except Katherine, who was married afterward. The children of the deceased daughter oí testator are Fred A. McMichael and America McMichael Sikyta, both of mature age and mar- ■ ried. In his will testator gave to each of his children both personal property and real estate. To each of the children
There was a formidable argument on the proposition that the trial court erred in directing a verdict in favor of proponent. While there is no direct evidence that testator was wanting in mental capacity when he made his will
The mental capacity of testator to make the will offered for probate is tested by the state of his mind at the time that instrument was executed. His fatal malady was Bright’s disease. He had been in failing health for a year or more before his death. His mind was sometimes seriously affected by uremic poisoning. At times he was not in a condition to make a will, but this state of mind was not continuous. It occurred at intervals as the result of uremia. At other times he was master of his mental faculties.
It does not necessarily follow as a matter of law from evidence of temporary mental infirmities before and after the date of the will that the jury should be permitted to. pass on the state of testator’s mind at that time, in absence of any proof that there was then a mental disturbance. There was positive evidence that he was in full possession of his mental faculties when he made his will. Testator’s oldest son was a capable lawyer and was successful and prosperous. He is a devisee. He offered his father’s will for probate. The filial and professional relations between father and son were becoming to both. Testator passed by this son at Crab Orchard, Johnson county, March 31r 1919, and with a son-in-law went to Beatrice, the county seat of Gage county, there inquired about the professional standing of Hugh J. Dobbs as a lawyer, engaged him to draw his will, gave him the necessary data for that purpose, and executed the will after it had been drafted to conform to testator’s wishes. In this will, which was executed April 1, 1919, the disposition of agricultural lands corresponded generally to prior, undelivered deeds in possession of testator at the time, and to the present will. The data for the bequests of personal property were given by testator from memory April 1, 1919. He thus disposed of
“I never drew a will where the maker took so complete charge of all that was done as in this case.”
Testator was a sturdy character. He transacted business intelligently both before and after he made his will. The terms of that instrument correspond generally to former testamentary intention at a time when his mental capacity was not in question. He possessed and managed an estate worth perhaps $100,000 and retained it to the last moment of his life. His will, in view of surrounding circumstances, shows mental acumen and paternal love. The oldest son had accumulated a considerable estate and had demonstrated his ability to manage property successfully. He was the only child to whom farm land was devised in fee, and his tract was limited to 80 acres, while each of three other children was remembered to the extent of 160 acres. Contestant, it is true, was limited to a life
In an opinion of reasonable length the able counsel cannot be followed through all the details of evidence, covering, as it does, over 1,000 pages of the record. ' The outstanding facts deducible from the evidence as a whole are conclusive. The evidence is wholly insufficient to sustain a finding that testator was wanting in. testamentary capacity when he made his will or that any undue influence operated on his mind during that solemn act.
The trial court, therefore, properly directed a verdict sustaining the will.
Affirmed.