94 Neb. 834 | Neb. | 1913
Tliis case had a beginning in the county court of Douglas county. It was to probate the will of Bridget Sweeney. She died May 5, 1909, in Douglas county. The will was dated January 28, 1909. It was offered for probate upon the petition of Peter O’Malley who was named therein as executor. It was filed in the county court of Douglas county May 28, 1909. That court fixed the hearing for June 7, 1909. It ordered notice by publication, and this was given. On June 7, 1909, James P. English, who was
On February 19, 1910, John Burchill and Michael Bur-chill filed in the district court their petition of intervention in said proceeding, in which they alleged that they were the heirs at law of the deceased, Bridget Sweeney, being the sons of John Burchill, deceased, who was a half-brother of Bridged Sweeney. In their petition they recited the proceedings theretofore had, and alleged that by reason of their relationship to the deceased they had an interest in the matter in litigation and in the. successful upholding of the order of the county court denying probate; that at the .date of the will the testatrix was a woman
On the 23d day of May, 1910, the Burchills filed an amended petition of intervention, substantially the same as their original petition, with the additional allegation that the interveners had no knoAvledge of the death of Bridget SAveeney, nor of the proposed probate of said will, nor of the objections thereto by the state of Nebraska for several months after said proceedings took place; but affiant (Michael Burch ill) “did not learn said facts until this cause Avas pending in this court.” The proponents then severally moved to dismiss the amended petition of intervention, repeating substantially their motion against the original petition, overruled June 14, 1910. Proponents further moved the court to strike certain portions of said amended petition therefrom, from paragraph 7 the words, “a Avoman of advanced years, in feeble health of body and mind,” and from the same paragraph the Avords, “and that the pretended will offered for probate is not the will of Bridget SAveeney,” and all of paragraph 8 introducing the neAV issue that the signature to said will was procured by the undue influence of Ellen O’Malley and her family, for the reason that said allegations' changed the issues presented to and tried by the county court; the sole question there being raised by the objection that “she was of unsound mind and incapable of making any testamen
On behalf of the appellants it is argued that the intervention of the Burchills, who were designated in the appellants’ brief as the defendants, was too late. There is quoted from section 50u of the code, the following: “Pending or to be brought in any of the courts of the state of Nebraska, * * * either before or after issue has been joined in the action, and before the trial commences.” It is alleged that the Burchills might have intervened in the county court either before or after issue joined between the proponents and the state, or before the trial commenced in that court; but that thereafter they Avere precluded from intervening either in that court or in any other court to which the case might be taken. It is further alleged that, conceding for the purpose of this argument the rights of the. contestant to intervene, they could not in the district court interject into the record a new or additional objection to the probate of the will. It is also alleged that the court erred in overruling the proponents’ motion tó strike from contestants’ amended petition the new issue of “undue influence” made by paragraph 8, as well as the objectionable words of paragraph 7. It was argued that the issue presented was doubly objectionable; that, in addition to its being a changed issue, it was contrary to the old issue which was retained — that the testatrix was of unsound mind and incapable of making any testamentary disposition of her property. As a part of
Br;dget Sweeney at the time of her death was 80 years old. The instrument presented as the last will and testament of said Bridget Sweeney purported to make some small gifts to charily, and then undertook to dispose of the remainder of her property, which consisted of about $8,000 in money, by the seventh paragraph. It reads: “As neither my husband John Sweeney, deceased, nor myself have any brothers, sisters, or near relatives, it is my will, and I give, devise and bequeath to my dear friend Ellen O’Malley, who for many years has been near and dear to me, all the rest, remainder and residue of my property both real estate and personal property of any nature whatsoever of which I may die seized or possessed.” At the trial of the case there was a general verdict, in which the jury found that the instrument offered for probate was not the last will and testament of Bridget Sweeney, deceased. There were also special findings in respect to interrogatories submitted by the court. (1) “Was Bridget Sweeney on January 28,1909, of sufficient mental capacity to make a will?” A. “No.” (2) “Was the signature of Bridget Sweeney to the document dated January 28, 1909, procured by the undue influence of Ellen O’Malley and her family?” A. “No.” After the return of the foregoing verdict and special findings there was a motion for a new trial filed by the proponents, and the same was overruled, and judgment entered finding the instrument was not the last will and testament of Bridget Sweeney.
It would seem that the position of this court in that case is amply sustained by the authorities and by the reason of the rule. In contemplation of law the Burchills were parties to the proceeding in the county court; but, whether so or not, the appeal was by the proponents, and not by the contestants. The case was dropped by the state in the county court and the state did not again appear; but between the proponents and the contestants there remains the fina] contention. The proponents took the case to the district court on appeal. Under the decision quoted, if they took it there, they took it there as against all persons whose rights might be affected by admitting the instrument to probate. They took the same there to have the will probated, to have it determined that it was the last will and testament of Bridget Sweeney. When the proponents took the case to the district court for the purpose of having that court probate the will and determine that it Avas Aralid, they took it there with the burden upon them to prove its due execution and the capacity of the testatrix to make it at the time of its execution. They failed to establish the testamentary capacity of Bridget Sweeney at the date of the alleged will. Their failure to prove the Avill and establish it as required by law leaves them without any standing.
A brief review of the facts should be given as they are shown by the evidence. Richard O’Keefe knew the deceased in Cornwall, England, 52 or 53 years before her decease. She was then a woman past the age of 30 years. Her husband, John Sweeney, was a man of middle age at that time. He was a laborer in the tin mines of Cornwall.
The Reverend Peter McLaughlin was the pastor of St. Peter’s Catholic church in Omaha, He knew John and Bridget Sweeney for about 14 or 15 years. He had a passing acquaintance with them for a longer period of time. When found, they were living in a very dilapidated shanty. It consisted of two rooms. The wind blew through it. It was anything but clean. In the bedroom there was a bed and one chair. In the other room there was a stove, a little table, and another chair. There was no plumbing
W. J. Deverees, a police officer assigned to the detective division of the Omaha police department, testified: That he went to the Sweeney home because informed that John Sweeney had disappeared. He knew nothing about any money being buried about the premises. Mrs. Sweeney did not think that her husband was -in the cellar. Mr. Deverees descended into a sort of dugout below the shack. After he had gone down into the dugout and had lit two or three matches there for the purpose of seeing whether Mr. Sweeney was there, he came up and went outside and searched among the weeds, and went down to the railroad, and then came back to the house and found Mrs. Sweeney standing in the cellar, or part of the way down into the cellar. She asked him to give her back the money. She
Mr. John J. O’Connor testified that he was a lawyer of many years’ practice; that he resided in Omaha; that he had known the SAveeneys; that he had been consulted by them for many years; that he knew that the $10,000 which they buried Avas the result of the sale of a lot; that after the SAveeueys were sent to a hospital he represented Mrs. SAveeney in appealing from an order of the probate court placing her under guardianship; that she told him that she remembered Peter O’Malley and Dick O’Keefe, but that she did not know Mrs. O’Malley; that after Mr.
There is something of a review of the facts and a review of the law in a case bearing some similarity to this one in In re Estate of Paisley, 91 Neb. 139. In that case the contestants had the judgment in the county court, which denied probate of the will, and the proponent appealed to the district court. On the trial in the district court the proponent had the verdict and the judgment, and there was an appeal to this court by the contestants. It was contended by the contestants that the verdict was contrary to, and was not sustained by, the evidence. The contestants were collateral heirs of the deceased, and they contested the will on- the grounds of the mental incapacity of the testator and undue influence on the part of the widow in procuring its execution. In the body of the opinion it is said: “Undue influence and weakness of body and mind are often closely allied, and it may be difficult to tell exactly which may have been the stronger factor in bringing about the result in any given case where the testator is enfeebled by illness, and has disregarded the natural objects of his bounty and has devised all, or the greater part of his property, to a stranger or to one whose integrity of purpose may well be questioned because'of his conduct and his apparent self-interest as the chief beneficiary of the will, and because of his opportunity to exercise undue influence upon the testator.”
In 1 Underhill, LaAV of Wills, sec. 125, it is said: “The mental and physical capacity of the deceased is to be considered in determining what degree of influence will vitiate his will. * * * The will of one whose independ
Upon an examination of the evidence in this case, we are of the opinion that the general verdict of the jury that the will was not the last will and testament of Bridget Sweeney was correct, as was, also, the special finding that she was not of sufficient mental capacity to make a will. Insufficiency of mental capacity to make a will and undue influence may both' be found in an examination of the following cases, which seem clearly to sustain the view to which we have come, that the testatrix was without sufficient mental capacity to dispose of her property at the time the will was executed: Higginbotham v. Higginbotham, 106 Ala. 314; Bevelot v. Lestrade, 153 Ill. 625; Rivard v. Rivard, 109 Mich. 98; Gordon v. Burris, 141 Mo. 602; Perret v. Perret, 184 Pa. St. 131; Orchardson v. Cofield, 171 Ill. 14; Bakjer v. Baker, 102 Wis. 226; Hampson v. Guy, 64 Law T. Rep. n. s. (Eng.) 778; Hall v. Hall, 18 Law T. Rep. n. s. (Eng.) 152; Carroll v. Hause, 48 N. J. Eq. 269; Purdy v. Hall, 134 Ill. 298; Brown v. Fisher, 63 Law T. Rep. n. s. (Eng.) 465. Hegney v. Head, 126 Mo. 619; Sheehan v. Kearney, 82 Miss. 688; Whitelaw’s Ex’r v. Sims, 90 Va. 588; Miller v. Miller, 187 Pa. St. 572; In re Estate of Normand, 88 Neb. 767; Seebrock v. Fedawa, 30 Neb. 424.
By section 126, ch. 23, Oomp. St. 1911, it is provided: “Every person of full age and sound mind may, by his last will and testament, in Avriting, bequeath and dispose of all his personal estate remaining at his decease, and all Ms rights thereto and interest therein, and all @®ch estate not disposed of by the will shall be administered as intestate
The judgment is fully sustained by evidence of a most convincing character and by precedent. The judgment of the district court is
Affirmed.