44 Neb. 175 | Neb. | 1895
This was a proceeding for the proof of the will of Elizabeth C. Handley, deceased, and originated in the county court of Nemaha county. The defendants in erroiy John S. Stull and Frank E. Johnson, who for convenience-will be referred to as the proponents, are named as executors of the will, and the plaintiffs in error, who will be referred to as contestants, are the heirs at law of the deceased. The proceedings in the county court are not involved in the-present controversy and will not, therefore, be noticed further in this opinion. The trial in the district court, as will-be inferred from what has been said, resulted in a verdict.
“In the name of the benevolent Father of All, I, Elizabeth C. Handley, being of sound mind and memory and in fair health, realizing the uncertainty of this life, do hereby make and publish my last will and testament.
“ Item First. It is my will and desire that after my death I be buried by the side of my late husband in Walnut Grove cemetery, at the village of Brownville, in Nemaha county, state of Nebraska; and that my executors hereinafter named complete the record upon the monument now erected on the burial-lot and to place at my grave suitable head and foot slabs.
“Item Second. I give, grant, and bequeath unto my beloved nephew, John C. Ward, all of my books of every description, my gold watch and chain, and all of my other jewelry of every description, and such of my family pictures as he may desire.
“Item Third. I do hereby give, grant, and bequeath unto the Home for the Friendless, now located at the city of Lincoln, in the state of Nebraska, my piano and all of my china and table ware of every description, to be owned and kept and used by said Home forever.
“Item Fourth. I hereby give, grant, and bequeath unto the said Home for the Friendless all of my household and kitchen furniture of every description; and it is my wish that the officers of said Home shall have the privilege of using said furniture or any part thereof in said Home, or to dispose of the same or any part thereof and to convert the same into money, and to use said money in such manner as they may see fit for the benefit of the inmates of said house.
*181 “Item Fifth. It is my desire and command that my executors hereinafter named shall collect all of my property, both personal and real, bonds, stocks, credits, goods, chattels, dioses in action and everything of value, except such as are herein bequeathed as above set forth, and to sell the same either at public or private sale, as may seem to them to be most advantageous; and to convert the same into money as soon after my death as the same can be done without sacrifice, and out of the proceeds of said sale to first pay all of my just debts, funeral expenses and expense of my last sickness, and the expenses of administration, and all the moneys remaining after carrying out the provisions of this will, as above set forth, I hereby give, grant, and bequeath unto the said Home for the Friendless, now located it the city of Lincoln, Nebraska.
“In this my last will and testament I well remember all of my relations, both near and remote, and as I am under no particular obligations to them or either of them, and desiring that my estate may be used for the very unfortunate class of persons who have a right to be admitted into said Home for the Friendless, I feel it to be my sacred duty to give all that I have left in this world to said Home for the benefit of the poor unfortunate people who are cared for by this Home, the grandest institution in the state of Nebraska.
“ Item Sixth. I do hereby nominate and appoint Frank E. Johnson, of Lincoln, Nebraska; Harry D. Clark, of Hot Springs, South Dakota, and John S. Stull, of Auburn, Nebraska, or the survivors of them in case of the death of either of them, executors of this my last will and testament, hereby authorizing and empowering them to adjust, release, and discharge in such manner as they may deem proper, the claims, debts, and demands due me. I hereby authorize, direct and empower them to sell at public or private sale, as may seem to them to be the most advantageous, all my real and personal estate, and to execute and acknowledge, and to deliver to the purchaser of the same proper deeds in*182 fee-simple. I also further authorize and direct my said executors to reduce and convert into money all of my estate except such as is mentioned in items second, third, and fourth, and to first pay the debts and demands mentioned in items first and fifth, and then to pay the entire balance left to the said Home for the Friendless.
“I do hereby revoke all former wills by me at any time made. In testimony whereof, I have hereunto set my hand and seal this 26th day of January, in the year of our Lord one thousand eight hundred and ninety-two.
“Elizabeth C. Handley.
“Signed and acknowledged by said Elizabeth C. Handley as her last will and testament in our presence and in the presence of each other, and signed by us in her presence and at her request; and we do hereby certify that at this time the said Elizabeth C. Handley is of sound and disposing memory.
“Done at Auburn, Nebraska, this twenty-sixth day of January, A. D. 1892.
“Jarvis S. Church, Auburn, Neb.
“ J. L. Carson, Jr., Auburn, Neb.
“R. C. Boyd; Auburn, Neb.”
The contestants, who, with the exception of John C. Ward, are the brothers and sisters of the deceased, joined in resisting the probate of the will on the following among other grounds:
1. That the deceased was not of sound and disposing mind at the time in question, and that said alleged will is the result of an insane delusion on her part by reason of which she was altogether incapable of disposing of her property, and is therefore utterly void.
2. Said will is void for the reason that the beneficiaries thereunder are uncertain and cannot be ascertained.
3. The Home for the Friendless named in said will is without legal capacity to take or hold the property thereby sought to be disposed of.
The several contestants who join in the prosecution of this proceeding in error devote many pages of their printed brief to an exhaustive review of the authorities bearing upon the validity of the provision in favor of the Home for the Friendless, and which would without doubt prove instructive in a proceeding having for its object the construction of that provision of the will; but a closer inspection of the pleadings has satisfied us that that question is not thereby put in issue. It appears from a reference to the allegations of the several contestants that no specific •objection is made therein to the bequest in favor of John C. Ward. And assuming the deceased to have been possessed of the requisite mental capacity to thus dispose of her property, it follows that the will should be admitted to probate for the purpose of giving effect to that bequest without reference to the other provisions thereof. (Greenwood v. Murray, 26 Minn., 259; Graham v. Burch, 47 Minn., 171; Farmer v. Sprague, 57 Wis., 324; Jones v. Roberts, 54 N. W. Rep. [Wis.], 917; Burkett v. Whittemore, 15 S. E. Rep. [S. Car.], 616; In re Will of Merriam, 136 N. Y., 58; Ware v.Wisner, 50 Fed. Rep., 310; Sumner v. Crane, 155 Mass., 483.)
Passing to the question of the mental capacity of the deceased, we observe that the first assignment relating to that branch of the case is the giving of instructions Nos. 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13 at the request of proponents. Some, indeed most, of the propositions in the instructions complained of are admitted to be accurate statements of the law.. It has been settled by repeated decisions
The next contention which we will notice is that the district court erred in not requiring the jury to answer certain interrogatories in connection with their general verdict, to-wit:
“1. Was the mind of Elizabeth Handley at about the time of the making of the will in question affected with a delusion that she could hold direct communication with the spirit of her deceased husband, and of other deceased persons?
“2. Did such delusion influence or control the mind, actions, and conduct of Mrs. Handley in her business transactions ?
“3. Was the mind of Mrs. Handley affected by a delusion at the time she executed the will in question, and was. she influenced in making her will by such delusion?
“ 4. Was Elizabeth C. Handley of sound mind and memory when she executed said will?”
Of the foregoiug questions it may be said that all except the fourth, which is in terms answered by the general finding, suggest merely evidential facts, and are not, therefore,, within the contemplation of section 292 of the Code, by which it is provided that special verdicts “must present the facts as established by the evidence, and not the evidence to prove them; and they must be so presented that nothing remains for the court but to draw from them conclusions
Q. How did she act or claim to act in connection with spiritualism, or what did she do about it?
A. I think I know she was under the control in a great many of her actions and in all of her trips and business by what Planchette said. * * *
Q,. She told you this?
A. Yes, sir; she told me herself.
Q. State as near as you can what she did say.
A. The last time I saw her I went to bid her good-bye. She seemed very much excited in health and looked poorly. She said she had been consulting Planchette, and it had advised her about her affairs, and she wanted to go and see Judge Stull and have him transact some business for her.
Q,. When was this conversation?
A. During the last part of January, 1892. * * *
Q,. Now, state as well as you can just what she said she would have to do about the latter part of January, 1892, at the time you spoke of.
A. She said she was going to see Judge Stull in regard to some business that Planchette had advised her to. * *
The will, it should be. remarked in this connection, was prepared by Judge John S. Stull, and bears date, as we have seen, of January 26,1892, from which it is argued that her action was the direct result of the delusions above mentioned, and which so controlled her judgment as to render her insensible to the ties of consanguinity. That.contention renders necessary an examination of the evidence which bears directly upon the execution of the will. Judge Stull, who had known the deceased intimately for twenty-one years, testified that she requested him to prepare her
Q. How did she transact business?
A. Usually in person.
Q,. When she came to the office did she come alone?
A. I do not remember that she ever came’ with any one. She was always alone when she came to the office to transact business. She came as an ordinary person would, and I saw nothing out of the way that would indicate insanity or anything of the kind.
Conceding all that is claimed for the testimony of the witness Mrs. Smith, it fails to establish the connection between the will and the alleged supernatural manifestations.
But the judgment must be affirmed on other and more substantial grounds. On all subjects except the one above alluded to the testatrix was mentally sound. Indeed, her general sanity is not seriously called in question. The proposition presented by the record is that with respect to the one subject she was laboring under a delusion which controlled her actions in the disposition of her property. Yolumes would be required for even a summary of what has been said and written on the subject. In fact, no topic has occasioned a more animated discussion or given rise to a greater diversity of opinion than this particular phase of the problem of insanity. Eminent authority of comparatively recent date, including L. rd Brougham, have regarded the human mind as a single indivisible potency not comprising distinct functions, and consequently any impairment thereof must be absolute and not partial. (Mann, Medical Jurisprudence of Insanity, 159.) But from the various opinions there have been evolved certain accepted rules, which are especially applicable to the case at bar, viz.: (1.) Mere eccentricity of belief is not conclusive evidence of a want of testamentary capacity, provided there is no delusion respecting matters of fact connected
The foregoing are selected from among the many authorities which sustain the principle above stated, and are believed to embody the law of the subject. A reference to the will itself fails to disclose any evidence of mental incapacity on the part of the testatrix or to suggest that she was controlled in any degree by her imaginary communication with the spirit of her deceased husband or others; nor can the disposition thereby made of her property be said to be unnatural or unreasonable in view of her relation to the principal beneficiary, and the further fact that she inherited said property, not through her own family, but from her husband. Again, we find in the record no evidence tending to prove that the alleged spirits, through their communications with the testatrix, tended to prejudice her mind directly or indirectly against the contestants or in favor of the Home for the Friendless. In fact, any conclusion with respect to the substance even of such communications must rest entirely upon conjecture. Law, it is said, is “of the earth, earthy” and that spirit-wills are
Another assignment is the recalling of the jury after the submission of the canse and the giving of a further instruction in the following language: “The court instructs the jury that influence to violate a will must be such as to amount to force and coercion, destroying the free agency of the testator, and there must be proof that the will was obtained by this coercion, and it must be shown that the circumstances of its execution are inconsistent with any theory but undue influence, which cannot be presumed, but must be proved in connection with the will and not with other .things.” The recalling of a jury for instructions is a matter so far within the discretion of the court as not to present a subject for review, assuming, of course, that the attending circumstances do not show an abuse of discretion and that the instructions given embody the law of the case.
The real criticism of the instruction in this case appears from the following quotation from the brief of contestants: “Insane delusion is not undue influence in any sense, and no question of undue influence was raised or submitted to the jury. The instruction complained of has no application to any issue submitted to the jury, and that it was de
There remains to be considered the claim of the contestants for an allowance out of the estate of the deceased on account of costs and attorney’s fees. Their reliance, so far as that contention is concerned, is upon the case of Seebrock v. Fedawa, 33 Neb., 413. Courts of equity have frequently assumed, when dealing with funds brought directly within their control, to order payment therefrom of fees to counsel for the adverse party. That practice had its origin in the theory that such a proceeding is primarily for the purpose of securing the direction of the court with respect to the disposition of a particular fund, and is there
Affirmed.