Nеbraska Methodist Hospital, hereinafter called proponent, filed its petition in the county court seeking to probate the alleged last will of Alice R. Bale. There, over objections filed by nephews, nieces, and a sister of
We turn first to the second assignment which is controlled by State ex rel. Lanham v. Sheеts,
The trial court rendered judgment as it did upon the grounds that after proponents had made a prima facie case the contestants adduced no competent evidence which could suрport a conclusion that there was any failure of lawful execution, testamentary incapacity, or
■ We turn then to the questions of: (1) Whether or not proponent made a prima facie case; and (2) whether or not сontestants adduced any competent evidence which would make execution and testamentary capacity issues of fact for the jury rather than of law for the court. We conclude that the first should be answered in the affirmative, and the second in the negative.
Without contradiction proponents established execution of the will as provided by law. One subscribing witness was shоwn to be dead, but the other affirmatively testified at length with regard to its execution, and the signature of deceased on the will was conclusively established not only by such witness but also by another witness аnd by documentary evidence appearing in the record. Upon such issue contestants adduced no competent evidence whatever.
As a matter of course the rule is that рroponent’s motion for directed verdict must be treated as an admission of all the competent evidence adduced by contestants, and all proper inferences to be drаwn therefrom. In re Estate of Benson,
Other well-established and controlling rules of law
In the light of such rules we have examined the record. In doing so, it is clearly apparent that the evidence adduced by proponent was sufficient to make a prima facie case upon the issue of testamentary capacity, and that contestants adduced no cоmpetent evidence which could sustain any reasonable inference that testatrix was incompetent to make a will.
The will was executed on June 8, 1927. Its provisions need not be recitеd here. It is sufficient for us to say that we find nothing in it which appears to be unjust or unreasonable. In the execution thereof testatrix gave all of her property to proponent in trust for the сare and welfare of a brother who predeceased but lived with her during his lifetime, and for the promotion of proponent’s charitable purposes thereafter. None of the сontestants had contributed to her estate or given her any reason, by conduct or otherwise, to expect that testatrix would give her property to any of them. The proponent hаd cared for another deceased brother of testatrix during his last illness, and she was not unmindful of that fact. Under the contemporaneous circumstances, conditions and history of events leаding up to the execution of the will, we find nothing in its provisions inferring any want of testamentary capacity.
Proponents made their prima facie case upon the issue of testamentary сapacity by a subscribing witness, and one who had well and personally known testatrix for many years. The subscribing witness testified substantially that he went with others to her home oh June 8, 1927, in response to a request thаt he act as a subscribing witness. He detailed what took place there at that time
Another witness, a hardware dealer, tеstified that he had known testatrix for many years, beginning in 1923. She was a customer in his store from about that time until in 1940 or 1941, and at or about the date of the will and subsequently testatrix made purchases from him, well knowing exactly what she wanted, and giving checks in payment therefor. The checks appear in the record, bearing her unquestioned signatures comparable with that on the will. Such witness likewise testified, аs did the subscribing witness, with regard to her testamentary capacity to execute a will.
On the other hand, all four of contestants’ witnesses simply testified that in their opinion testatrix was “not of sound mind” or “not rеally of sound mind” or “I can’t say she was slipping but then after she got most of the property to look after— * * * She was not (of sound mind).” It appears, however, that not one question asked, nor any аnswer of such witnesses, to all of which proponent appropriately objected and moved to strike, even intimated much less stated any standard of mental quality upon which testamentаry incapacity could be predicated. In other words, there was no competent evidence adduced by contestants to negative that testatrix: (1) Understood the nature of her acts; or (2) knew the extent of her property; or (3) under
There was some evidence adduced that testatrix was not neat, did not dress in the latest fashion but made her own clothes, was a little eccentric or old-fashioned, and that she was a woman of little educátion who probably could not read or write except to sign her name. However, as heretofore observed, that was not sufficient to raise any inference that she did not possess testamentary capacity.
There was also some evidence that testatrix possessed quite a large estate in 1927 when the will was еxecuted, but that it had dwindled to considerably less in 1950 when she died. What became of it during the 23 ensuing years was not shown. In that connection there was no evidence that such a situation resulted from mental incompetency. No- inference could be drawn therefrom that she lacked testamentary capacity. For aught we know, it was used for her own support and comfort. We conclude that there was no competent evidence adduced by contestants to overcome the prima facie case made by proponent, and that the trial court properly withdrew the cause from the jury and rendered a judgment for proponent.
For the reasons heretofore stated, the judgment should be and hereby is affirmed.
Affirmed.