75 Neb. 298 | Neb. | 1905
On July 25, 1903, Charles Nelson, who was an old Swedish farmer, residing in Saunders county, made a will whereby he left all of his property, consisting of an 80 acre farm and some personal property, to certain charitable and educational institutions connected with the Swedish Lutheran church. On October 2 of the same year Nelson died. The will was filed for probate with the county judge of Saunders county, when objections were filed to the probate and allowance of the same by Nelson’s widow and by John Larson, a brother of Nelson, who resided in California. The objections made to the probate of the will denied the execution of the same and the testamentary capacity of Nelson, and also alleged that it was procured by the fraud and undue influence of one J. E. Swanbom. Upon a hearing the will was admitted to probate, from which order John Larson appealed to the district court. From a judgment and verdict in that court sustaining the will, John Larson prosecutes error to this court.
At the time of his death Charles Nelson was in his 78th year. He had been a resident , of Saunders county and had lived upon the farm from the time that he first
On the part of the contestants there was testimony by one Bergren, a neighbor, to the effect that five years before his death Nelson had rented his farm land to him; that Bergren usually advised him as to AAdien he ought to sell his crop and stock, and marketed it for him; that the year before his death he seemed a little childish, and remarked on the rapidity with Avhich Bergren had put up his hay, wlien in fact the usual time had been employed; that
The testimony as a whole shows testamentary capacity on the part of Nelson, and just as plainly fails to show the exercise of any undue influence. It shows a condition of mind and body of the testator at the time the will was made such as is not uncommon in men or women of such advanced age who have pursued a life of toil. Physical and mental decay had evidently begun, but Nelson was still able to be about the house, and, while subject to an occasional vagary or lapse of memory, his mental grasp of the facts with reference to his property, his duties so far as his wife and his brother and his sister were concerned, and his intention as to the use to be made of his property, was amply sufficient to make him competent to dispose of his estate. Neither is there sufficient evidence to show undue influence. A year before he had expressed the idea of leaving his property for benevolent purposes. A month after the will Avas made he Avas told there Avas still time and opportunity to change it, if he so desired, but he refused to alter it. The con-Arersations which have been narrated by the Avitnesses Avherein Nelson spoke of making his will, whether to his brother, John Larson, or to the ^charitable institutions to Avhich his property Avas eventually left, seem to have been carried on by him with a clear understanding of what his property consisted of, to AArhom he desired to leave it, and their relations to him. The fact that at times he expressed an intention of leaving his real estate to his brother, his personal property to his wife, and depriving his sister of any share of his bounty, affords of itself no ground for believing that when he changed his mind he was unduly influenced to do so. If the testamentary dis
The plaintiff in error has called our attention to certain alleged errors in regard to the admission of opinion evidence as to the capacity of Nelson to make a will, and also has complained of certain instructions given by the trial court. We deem it unnecessary to consider these asssignments for the reason that, if a verdict and judgment had been returned for the contestants in this case, Ave would have found it our duty under the evidence to have set it aside as against the clear Aveight of evidence. No other judgment than that AAdiich has been rendered Avould be proper under the testimony in this case. Por this reason, the errors, if any, AAdiich are complained of Avere Avithout prejudice and need not be considered.
We recommend that the judgment of the district court be affirmed.
By the Court: Por the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.