39 N.W.2d 418 | Neb. | 1949
This is an appeal from the judgment denying probate of an instrument dated October 17, 1947, as the will of Carrie H. Hunter, deceased.
Carrie H. Hunter was a resident of the city of Lincoln. She died on the 19th day of October 1947, and left an instrument purporting to be her will in which Elmore Y. Abbott, a nephew, was named as sole beneficiary; Proceedings in the county court resulted in its probate. The contestant, Bertha P. McKim, appellee, appealed. The proponent, Elmore Y. Abbott, is the appellant. The ground of the contest in the district court was that the deceased at the time of the execution of the document in question did not have testamentary capacity. The trial resulted in a verdict adverse to the proponent and a judgment denying probate. The motion of proponent for a new trial was overruled. i
Proponent introduced all his evidence in making his case-in-chief. He made much more than a prima facie case and produced sufficient evidence to have sustained a verdict if one had been returned in his favor that the instrument in question was the will of the deceased. In this situation a statement of the evidence of the proponent is not required.
A defeated litigant in a will contest is not entitled to a trial de novo on appeal from the judgment of the district court. An issue of fact in such a contest is determined in this court by the sufficiency of the evidence to sustain the verdict of the jury, and in testing the sufficiency thereof to support the verdict it will be considered in the light most favorable to the successful party, any controverted fact will be resolved in his favor, and he will be given the advantage of any inferences that can reasonably be deduced therefrom. In re Estate of Johnsen, supra; In re Estate of Witte, supra; In re Estate of Kaiser, supra; Fimple v. Archer Ballroom Co., 150 Neb. 681, 35 N. W. 2d 680.
The record contains evidence tending to establish the following relative to the issue of mental capacity of the testatrix at the time the will was executed. When she signed the will on October 17, 1947, she was 78 years of age, and died on the morning of the sepond day thereafter. She was seriously ill in the hospital as early as September 30, 1947, suffering from nausea and shingles, and was “most uncomfortable.” After she had been in the hospital for about two weeks she was confused and thought she was in the home of a nephew. She was semi-comatose at times. During the week before her death she developed edema, and puffiness of her hands and feet and around her eyes.' She had lucid and semi-comatose intervals, an impediment in her speech caused by the edema, and her mouth was very dry most of the time because she had difficulty in retaining fluids. “In her general condition it didn’t seeni possible for a person to live. She was extremely ill and her age of course was a contributing factor.” Before the will was made she at times talked incoherently, was confused, thought she was in the home of her sister j on occasions was “out of her head,” would not respond, circulation was poor, moaned but did not move, did not seem to have strength to move, her eyes were “coated with film,” was in such condition that she could not turn herself in bed, and had been bedfast for at least 20 days before her death. Her illness was serious enough that the nurse thought many times while she was with the testatrix that she was going to die. At 2:45 a. m., October 18, only hours after the will in ques
An examination and evaluation of the evidence results in the conclusion that it is of such a nature that it could reasonably have convinced the jury that the incompetency alleged had been established. The assignment of the appellant that the verdict is without competent evidence to sustain it, and that a verdict for him should have been instructed by the court, is not sustained and must be denied.
The proponent also bases error on the failure of the court to instruct the jury that after the proponent had made a prima facie case a presumption arose that the testatrix had testamentary capacity and that the presumption continued until overcome by evidence produced by the contestant. There was no instruction ■ tendered the court to that effect. A party desiring a more explicit instruction than that given should offer such an instruction. If the instructions are not sufficiently specific in some respect, it is the duty of counsel to offer a request for an instruction that will supply the omission, and unless this is done, the judgment will not ordinarily
The court advised the jury that if Carrie H. Hunter, when she executed the will, had the ability to understand the nature of her act, the extent of her property, the proposed disposition of it, and the natural objects of her bounty, it should find that she had mental capacity to make a will; that the question for its determination was whether or not she had capacity to make a will on October 17, 1947; that the burden was on the proponent to establish by a preponderance of the evidence that on that date she had such capacity; and if from a preponderance of the evidence and the instructions the jury found she had mental capacity to make a will, then the verdict of the jury should be that the instrument in controversy was the last will and testament of Carrie H. Hunter, deceased. These instructions were correct and adequate. The essential elements of testamentary capacity were accurately • stated. In re Estate of Johnsen, supra. The burden of proof in this case was on the proponent throughout the trial. If he sustained it by the greater weight of the evidence, he was entitled to a verdict that the questioned instrument was the will of the deceased. In re Estate of Witte, supra.
The presumption that the testatrix had mental capacity to make a will created by the prima facie case of the proponent was not evidence, and when evidence sufficient in quality was produced to rebut it, the presumption disappeared. The rule is that a presumption is not evidence, but it may take the place of evidence unless and until evidence appears to overcome or rebut it, and when evidence sufficient in quality appears to
The judgment of the district court should be, and is, affirmed.
Affirmed.