78 Neb. 758 | Neb. | 1907
Some 30 years ago John Wilson, Jr., a son of John and Ellen Wilson of Tecumseh, Nebraska, left the home of his parents on account of some misunderstanding between them. Since then, as we understand, no communication has taken place between himself and his family, and it is not known whether he is now living or dead. In 1903 John Wilson and Ms wife, Ellen, then nearly 80 years of age, made a trip to Dawson City, Alaska, for the purpose of finding their son. Prior to their departure they executed a joint will, by the terms of which Carrie Mollering, their granddaughter and appellant herein, James Kinneburg, their nephew, and Susan K. Sullivan, an intimate friend, were bequeathed $1,000 each. An annuity of $200 was provided for Margaret Kinneburg, a sister of Mrs. Wilson, $300 was set apart to be placed at interest for keeping the family burial ground in good condition, and the residue of the estate, consisting of about $20,000, was to be kept at interest for ten years for John Wilson, Jr., or his heirs, and, in the event of their failure to appear within that time, the executor was to convert the property into money, and, after paying himself “all the law allows in the most liberal terms,” to divide it, share and share alike, between Carrie Mollering, James Kinneburg, Susan K. Sullivan, Duncan Kinneburg and Donald Black, a nephew of Mrs Wilson. The search for the lost son proved unavailing, and the parents returned home, where John Wilson, the father, died February 26, 1905. Ellen Wilson, his wife, lived at her home in Tecumseh until her death on July 22, 1905. On July 13, 1905, she suffered a stroke of paralysis, and on the evening of that day she executed the Avill in controversy in this case. The facts concerning the making of the will are these: The then county judge was in possession of the joint will made by the husband and Avife before starting on their trip to Alaska. Mrs. Wilson sent for him to draw her will, but on account of his official position he refused to act in the matter, and she then re
The four errors first assigned relate to instructions 1, 2, 4 and 6, given by the court on request of the proponent. The objections urged against these instructions are that they failed to inform the jury that it was necessary for the
Exception Avas also taken to the refusal of the court to give the fifth instruction requested by the contestant, to the effect that, if the will in this case makes no deAfise or bequest of the property to the son of the testatrix, and if you believe from the evidence that it was the intention of the testatrix to Avill all, or a portion, of her property to her son, your verdict should be for the contestant.” If Ave understand the position of the appellant it is this: The testatrix, by providing that the residue of her estate, after the specific bequests had been paid to the legatees, should remain at interest for five years to await the return of her son or his heirs, intended to make some provision for them in case of their return, and that, because the will did not in terms provide for the disposition of the residue in case her son or the heirs did return Avithin the five years, it fails to fully express her intentions. It will be noticed, however, that by the terms of the will the residuary bequests are made conditional. They are to go to the residuary legatees only on condition that the lost son or his heirs do not return to Tecumseh within five years. In case of their return within the time limited, the residuary bequests become inoperative and the
The sixth instruction requested by the contestant is to the effect that, if the jury find that the will does not make provision for Carrie Mollering or for any other person that was intended by the testatrix, they should find for the contestant. This instruction was properly refused, as the will does make provision for Carrie Mollering, and a careful examination of the evidence does not disclose a failure on the part of the testatrix to provide for any party whom the testatrix had in mind or whom she wished to share in her estate. The seventh instruction, requested by the contestant and refused, is open to the same objection, there being nothing in the testimony to indicate that the testatrix had not made provision for every one whom she wished benefited.
The court admitted evidence of old friends and acquaintances of the testatrix to the effect that at the time of making the will she was in her normal condition, in full possession of her faculties, and had mental capacity sufficient to understand and transact her business. Objection to this testimony is made on the ground that no sufficient foundation was laid, in that no facts were related by the witnesses upon which their opinions were based. The rule is well established that where nonexperts are called to establish the insanity or want of mental capacity of a party, the facts upon which they base their opinions must be first stated, in order that the court and jury may determine whether, from the facts given by the witness as the basis of his opinion, it is well founded. When the witness is called to establish a normal condition of the mind and mental capacity to transact business, the rule supported by the greater number of authorities is that those well acquainted with the party whose mental capacity is the subject of inquiry may testify affirmatively that in his opinion such person was of sound mind. The ' supreme court of Iowa, speaking of the question, uses the following language: “There seems to be no controversy
Appellant insists that this court, by its former holdings, is committed to- the rule that a nonexpert witness will not be allowed to give an opinion on the sanity or insanity of a party, without first laying the foundation for such opinion by stating the particular facts and circumstances upon which it is based, and it is contended that an inti-, mate acquaintance, extending over a long period of time, with opportunities to observe his conduct, is not a sufficient qualification upon which to base an opinion of the party’s sanity. There may be some misunderstanding by the profession concerning the rule applicable to the qualification of a nonexpert witness to give an opinion relating to the sanity or insanity of a party whose mental condition is a subject of inquiry; but an examination of the cases will, we think, show little disagreement as to the true rule, and the one which this court has almost universally followed. The question was first before the court in Schlencker v. State, 9 Neb. 241. In that case the defense was insanity, and the state called several nonexpert witnesses to controvert the testimony offered by the defense. In the opinion it is said: “The opinions of these witnesses as to the prisoner’s mental condition, based upon what they had personally observed, and then detailed to the jury, were admitted in evidence under the objection that they were incompetent evidence.” It will be observed that the state laid the foundation for the introduction of the opinion of these witnesses. What facts constituted that foundation is not disclosed in the opinion, and the question
In Pflueger v. State, supra, the rule is distinctly announced that “the opinions of nonexpert Avitnesses who have known the accused for fifteen years and Avho met and observed him almost daily for six weeks or more immediately preceding the commission by him of a homicide, their attention being particularly directed to his mental ■ondition, are admissible as bearing upon the question of bis sanity.” This seems to us to be the common sense' vieAV. Sanity is the rule and insanity the exception. What acts or circumstances are there that an acquaintance can relate as a foundation for his opinion that a party is of sound mind, except that he has known him for years, has had a close personal acquaintance, and has never observed anything in his speech or conduct denoting insanity or mental incapacity? On the other hand, the insanity or mental incapacity of a party is indicated by many acts and circumstances which are observed and Avhich can be narrated by those whose opinions are desired, and it is those acts and circumstances alone upon Avhich the nonexpert must rely for his opinion. We believe, therefore that the true rule, and the one Avhich this court has approved in Pflueger v. State, supra, and which it has never disapproved, so far as our examination has gone, is that it is a sufficient qualification for a nonexpert
We have carefully gone through the whole record and examined the evidence with more than ordinary care. While it is true that the testatrix suffered from a slight stroke of paralysis shortly before the execution of the will, the physicians in charge, and her neighbors and acquaintances, are emphatic in their testimony- that at the time the will was executed she had recovered so as to be fully conscious and capable of transacting business with a full understanding of its import. It is true that her speech was not as distinct as prior to the stroke, but her mind was clear, and, when the will was read to her, article by article, by the draftsman, she made corrections and directed alterations in several respects. When the paragraph bequeathing $1,000 to' Carrie Hollering was read, she directed that the words “and no more”' should be added, as she did also to some other of her bequests. There is evidence strongly tending to show that she was not possessed of the most friendly feeling toward the contestant; that she had expressed herself to one or more of her neighbors to the effect that, when Mrs. Hollering was living with her and had been offered a daughter’s place* in the home and all a daughter’s part, she had not been grateful. We are convinced from the testimony that she fully understood the terms of her will, that she understood her obligations to her relatives, and knew the value of her property and how she wished to dispose of it. The county court, after a full hearing, took the same view, and this is reinforced by the verdict of a jury, which received the approval of the judge of the district court who saw and heard the witnesses. Under these circumstances, it would be a gross wrong to set aside the will of a party to whom the law awards the right to dispose of her property in any manner that she sees fit, and under the circumstances tech
We recommend an affirmance of the judgment.
By the Court: For the reasons stated in the foregoing opinion, the judgment appealed from is
Affirmed.