99 Neb. 853 | Neb. | 1916
Application was made to the county court of .Pawnee county for the probate of the will of Sophie Spier. The proponent, Frederick Spier, represented to,the court that Sophie Spier died in Pawnee county on the 25th day of July, 1913, leaving a last will and testament in which Charles A. Schappel was named as the executor thereof. This will was filed on the 9th day of August, 1913, in the county court of said county, and relates to both real and
Henry Spier, August Spier and William Spier, contestants, filed an answer to the petition on appeal in said case in the district court. They admitted that the said Sophie Spier died at the time and place alleged in the petition, and that at the time of her death she was a resident and
It is contended: (1) That said alleged will was not executed and witnessed as the law requires. (2) That the deceased was not mentally competent to make a will at the time the alleged will was executed. (3) That the deceased was unduly controlled and influenced by the proponent, Frederick Spier, and his brother, Louis Spier.
The testatrix seems to have been something more than 80 years old when she made the will. It is claimed that she was feeble, and that the will was not executed as the law requires. It is true that Fredericka Spier was only 14 years old at the time she witnessed the will. It is contended that she was incompetent to act as an attesting witness. She was asked and expressed the opinion that she thought her grandmother was competent to do business. It may be considered that she was not very competent to testify about that fact, being of the age of only 14 years, but she had a right to testify to that fact as she could testify to any other fact within her knowledge; and, if she may not have known much about it, it would be for the jury to consider that fact. It is claimed by the contestants that she did not know the meaning of the words “mental capacity” or “capacity to do business.” It is probable that hot very much knowledge can be gained from reading her evidence. At the same time she was competent to testify. Evers v. State, 84 Neb. 708; Davis v. State, 31 Neb. 247. We do not care to say that Fredericka Spier was not able to testify. She was not required to have any other
It appears that the testatrix, in the presence of R. R. Mahan and Mike Weber, on the 8th day of February, 1913, declared to Mr. Schappel in the German language that the instrument prepared was her last will and testament, and that it was signed by her, and she desired these gentlemen to sign the attestation clause. Mr. Schappel interpreted her words into English to Mr. Mahan, and Mr. Mahan and Weber signed the instrument in the presence of the testatrix. It appears that Weber could speak German, although he did not remember the conversation.
In Holyoke v. Sipp, 77 Neb. 394, it is held, as stated in the syllabus: “A presumption of the due execution of a will arises from the presence of an attestation clause which - recites the facts necessary to the validity of the will, and, in the absence of evidence discrediting the statements, the will should be admitted to probate.” It is said in the body of the opinion: “When the subscribing witnesses are present at the probate and admit the genuineness of their signatures, but deny or are unable to recollect some or all of the facts which were attendant upon the execution, so that one or both of them are unable or unwilling to testify with positiveness and of their own knowledge that all the requirements of the statute were complied with, a presumption of due and proper execution will arise from the recitals of a perfect attestation clause.”
There was a second attestation clause. It recited: “We, the undersigned, have this 8th day of February, A. D. 1913, subscribed our names in the presence and by the request of the testatrix, Sophie Spier. R. R. Mahan, Pawnee City, Nebraska. Mike Weber, Steinauer, Nebraska.” It is not necessary that the witnesses see the testator sign, if he acknowledges to them that he has signed the will and shows them his signature thereto. Dame, Probate and Administration (2d ed.) sec. 43.
Publication, as the term is used in the law of wills, is the act or acts of the party by which he manifests that it is his
'Concerning the competency, of the testatrix, Charles A. Schappel testified that he had been acquainted with the testatrix 20 years or more; that he had had business dealings with her; she being the administratrix of the estate of her deceased son, Herman Spier, who died in the year 1907, and from whom she inherited the 120 acres of land involved in this case. He testified that she frequently came to his office in Pawnee City and talked her business affairs over with him. He went to her house on the 19th of July, 1910, taking with him his partner, Prank Barton, and she directed the making of the will. She gave instructions in the German language, and Mr. Schappell interpreted the instructions to Mr. Barton.
Prank Barton testified that he had been acquainted with her about three years before the making of the will; that she frequently came to the office of Schappel & Barton and talked over her business matters; that he drew the proposed will under her direction and as dictated by her and interpreted to him by Mr. Schappel. He thought she was competent to transact ordinary business affairs on the 19th ’ of July, 1910.
Herman Kruger, the preacher, testified that he had known her 24 years; that he was her pastor, and frequently visited at the house and talked with her about ' religious and other subjects. In his opinion she was
Dr. Prendergast testified to having had considerable experience with persons mentally deranged. He was called to visit the testatrix and to treat her for acute bronchitis. He had made four calls upon her in March, 1910,- and had observed her mental condition. He also treated her in April, 1911, and he finally treated her at the time of her last illness in July, 1918. It was his opinion that her mental condition was normal.
Steinauer, the banker, testified that he had lived within two miles of the testatrix for 40 years. He was well acquainted with her. He had had business transactions with her in loaning and borrowing money. He had often visited her at her house. In his opinion she was competent to transact ordinary business on the 19th of July, 1910.
Numerous other witnesses testified along the same line.
There is no evidence that shows that she was mentally incapable of doing business. Apparently there was nothing to cast serious doubt upon her testamentary capacity.
The third contention is that she was subject to undue influence. It is testified to by John Spier, the old lady’s grandson, that she had said that she would like to sell the place and divide it up equally among the boys and her daughter, but she said that Fred had said “no,” and not until his boys were big enough. This testimony does not show that Fred had refused his permission. It fails to show that he attempted to control her. It is simply her statement that he had said no, and it is not corroborated by anything that he said in the presence of anybody.
Gottlieb Spier testified that he had heard her say that she would like to have it divided up equally, and each one have so much, but she said she didn’t know if she could or not; she said the rest of the boys would all be against it. She did not know that she could do it or not. She would like to .divide it up equal. But here again is the same thing; it is only her statement as to what the will of Fred
We do not feel we are justified in reaching a conclusion different from that reached in the district court. The judgment of the district court is
Affirmed.
