56 Neb. 135 | Neb. | 1898
James M. Ryan, a priest of the Catholic Church, died in Omaha, March 25, 1894, leaving an instrument, executed in due form, purporting to be his last will and testament. By this there was bequeathed to Father Ryan’s sister, Mrs. Mary Lamb, $8,000. The remainder of -the estate—qnit'e considerable in value—was bequeathed and devised “to the Rt. Rev. Richard Scannell, Román Catholic Bishop of the diocese of Omaha, and to his successors in the bishopric of said diocese, to be disposed of or used by said bishop in whatsoever manner said bishop shall deem of greatest advantage to the Roman
If, as contestants assert, the will is invalid on its face, the judgment must be affirmed without regard to what occurred on the trial. The illegality asserted is that the clause quoted creates a perpetuity. But we cannot read that clause in- any manner even implying the slightest restraint on alienation, and it is only an undue restraint on alienation which creates a forbidden -perpetuity. The grant to the' present bishop and his successors is a limitation of the estate. It does not create estates in remainder to the various successors. Moreover there is an express grant of the power of alienation.
The contention at the trial was, not that Father Ryan was insane in the usual sense, but that when the will was made he was so affected by bodily disease that he was for the time being incapable of exercising that degree of reason which the law in such case demands. Much of the evidence on this issue was in the form of opinions by witnesses not experts. All this testimony was objected to and the rulings admitting it are assigned as error. The character of this evidence and the foundation laid therefor may be illustrated by the testimony of Mrs. Lynch, a niece of the decedent. She testified that she knew Father Ryan; saw him at Mrs. Lamb’s house in December, 1891, when he was there sick. He went there December 17. She saw him “mostly every day” the first week of his illness. Saw him December 25 (the day the will was
Father Ryan lived more than two years after the will was executed. He recovered his health, at least to the extent that he made a journey to Chicago, and from time to time performed duties appertaining to his priestly office. There was evidence tending to show that after his recovery the lawyer who drew the will and who had retained it after execution, told Father Ryan that.he had heard talk of the latter’s having made a provision for Mrs. Lamb different from that made in the will, and thal: he preferred for that reason to place the will in Father Ryan’s custody; that Father Ryan kept the will for about a year and then gave it into the custody of Mrs. Lamb. The proponent requested the following instruction: “It will be your duty to inquire and determine from all the evidence in the case what the mental condition of the deceased was at the time of making the will in question, as his mental condition at that time will have to control as to whether he was of sound mind in making the Will, and in this connection if you find from the evidence that he had the will in his custody and possession for a long period of time between the date of its execution and the time of his death, that during said time he was in the full possession of his mental faculties and uninfluenced by any coercion or undue influence and delivered said Avill to the witness Anna Lamb with instructions for its safe-keeping, you will take that fact into account as a circumstance bearing upon the question of. his mental condition at the time the will was executed.” This was refused. There was also testimony tending to show that Father Ryan had previously expressed an intention to provide for other relatives and declared he would give
Reversed and remanded.