76 Neb. 124 | Neb. | 1906
The plaintiff is a woman about 80 years old. She inherited about $25,000 from a brother who died in the state of Illinois, of which amount about $18,000 was ready for distribution and was to be paid oyer to her on or before January 7, 1903. At about that date, and before plaintiff had received any portion of the inheritance, one of her daughters instituted proceedings in the county court of Johnson county for the appointment of a guardian for the plaintiff, alleging as ground therefor that the plaintiff was not of sufficient mental capacity to have the care and management of her property. While such proceedings were pending the plaintiff entered into -a contract with her husband, children and certain of her grandchildren, who are the issue of two deceased daughters, whereby she surrendered all of her estate, save less than $3,000, to such children and grandchildren, and the amount reserved was placed practically' beyond her control. After the contract was signed the proceedings for the appointment of a guardian were dismissed. In pursuance of the contract just mentioned about $8,000 of the plaintiff’s inheritance was. collected and distributed among her children and grandchildren. Afterwards the plaintiff commenced this suit against the other parties to the contract for a cancelation thereof, alleging that it was made by her without any consideration, and that her assent thereto had been procured by undue means employed by defendants to that end. The plaintiff’s husband and two of her sons, defendants, answered, uniting with her in the prayer for the cancelation of the contract. The other defendants filed a plea in abatement, averring that the plaintiff was an incompetent person, without a guardian, and not of sufficient capacity to maintain the
The first complaint is of the ruling of the trial court on the motion to strike the plea in abatement. The motion was good when made because the plea was not verified. But, aside from that, defendants were permitted to include the same matter with their plea to the merits, and to litigate such matters fully, consequently, no substantial right of the defendants was prejudicially affected by the ruling.
Gomplaint is also made of several rulings of the court •excluding evidence tending to show that James E. Sim
The defendants called a physician to testify as an expert touching the mental capacity of the plaintiff, apparently, to sustain the matters pleaded in abatement of the suit. He testified, in effect, that he discovered no mental defects, but whether she would be competent to look after the ordinary business affairs of life would depend largely upon the extent of the business, and that he hardiy thought her capable of managing a farm, buying and selling stock, and looking after the estate of $10,000 or $12,000, but that he considered her competent, with the advice and assistance of a competent attorney, to conduct this litigation. The defendants tHen propounded this interrogatory: “From the examination you made of the plaintiff, * * * in your judgment, would she or would she not be easily influenced by one she liked or one occupying a fiduciary relationship?” The question was repeated several times in substantially the same form, and in each instance an objection thereto was sustained by the court, and the defendants now complain of these rulings. We think this evidence was properly excluded. The defendants had called this witness to show that the plaintiff was mentally incompetent. His testimony shows that he had made an examination lasting about 15 minutes. Her disposition was not in issue, and, had it been, could not have been established by expert testimony.
It is urged that the suit should have been abated be
Coming .to the merits of the case, it is strenuously urged that the evidence is insufficient to sustain the decree of the district court. The defendants are children and grandchildren of the plaintiff who, as we have seen, is old and illiterate. As we have also seen, when the contract Avas made, proceedings Avhich had been instituted by one of the defendants, a daughter of the plaintiff, to have a guardian appointed for her were pending in the county court. Whatever may have been the motive that induced such proceedings, the record leaves no room for doubt that they operated to disturb and harrass the plaintiff, and that she was exceedingly anxious to have them dismissed. We are satisfied from the evidence that while such proceedings were pending the conduct of at least a portion
It is recommended that the decree of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the decree of the district court is
AFFIRMED.