87 Neb. 455 | Neb. | 1910
Stephen B. Miles, a resident and having his domicile in Richardson county, in this state, executed and declared a certain written instrument as his will, at Rulo, in said county, on the 27th day of November, 1888. On the 11th day of April, 1889, at the same place, he executed a codicil by which he changed one item in the will. Both the will and codicil were duly witnessed and executed in accordance with all the requirements of law, the two constituting his will. He retained his residence and home in said county until the 80th day of October, 1898, when he died at Falls City. The will made at Rulo will hereafter be referred to as the Rulo will. It was presented to the county court of Richardson county 'for probate, and, after proper proceedings being had, was admitted to probate on the 2d day of December, 1898, without objection or contest, and no appeal was taken from the decree. On the 29th day of March, 1899, a petition was filed in the county court by the plaintiffs herein, in which tlxe relationship of the plaintiffs to deceased was set out and the probate of the Rulo will was averred. It was then stated, in substance, that the probated will was not the last will and testament of the said Stephen B. Miles, deceased, which fact was alleged to be well known to the proponent thereof at and before the time he caused and procured it to be admitted to probate; that his actions in that behalf were fraudulent; that a later will had- been duly made and executed by the testator, by which the Rulo will had been revoked, all of which was alleged to be well known to him at the time, but was unknown to plaintiffs until long after the decree probating the Rulo will had been entered; that about the 1st day of April, 1897, the said Stephen B. Miles duly made another and later will at the city of St. Louis, Missouri, by which he had changed the disposition of his estate from that made in the Rulo will, and had by his said later will fully revoked and canceled said will and all others by him before that time made, and
An answer was filed by the defendants Joseph H. Miles, John J. Williams, John W. Holt, Nora Harrison, John I. Dressier and J. K. Biles, by which the death of Stephen B. Miles and the execution and probate of the Rulo will were admitted, as also was the extent and value of his estate at the time of his death. All averments of the petition as to the making of the will at St. Louis (which for convenience will be hereafter referred to as the St Louis will) or any will subsequent to the making of the Rulo will were denied: It was alleged in substance that full, due and legal notice was given of the presentation of the Rulo will for probate; that the county court had full jurisdiction of the subject matter of the parties; and that said decree was a final adjudication of the whole matter. All averments of the petition not admitted were denied.
The defendant Samuel A. Miles filed an answer and cross-petition, in which, after the denial of certain averments of the petition reflecting upon himself, he practically realleged those of that pleading and joined in the prayer for a new trial, the cancelation of the decree ad
Upon a trial in the county court, the prayer of the petition of plaintiffs and the cross-petition of Samuel A. Miles were denied and the action dismissed, thus leaving the decree probating the Rulo will unimpaired. The cause was then appealed to the district court, where the pleadings were to some extent amended, but in view of the questions here presented it is not necessary to refer to them further. Pending the proceedings in the district, court the cause has been appealed to this court a number of times, and the history of such proceedings may be found in 62 Neb. 566; 63 Neb. 851, 859; 68 Neb. 463, 479; 73 Neb. 193, 205, 206. The cause has been'finally tried to the district court for Richardson county, the trial resulting in a finding and decree in favor of defendants and dismissing plaintiffs’ petition and cross-petition of Samuel A. Miles. Plaintiffs and cross-petitioner appeal. On this appeal we are confronted with a bill of exceptions of about 3,000 pages and a transcript of 275 pages, as well as elaborate briefs of over 800 pages. In view of the condition of a part of the bill of exceptions it would be practically impossible to understand and comprehend the evidence, were it not for the care and labor bestowed upon the briefs, and the very able arguments presented by counsel.
A motion to suppress the bill of exceptions is filed by defendants. On the trial of the case some 600 pages of the evidence offered and received by the court, the greater part of which was introduced to prove certain alleged corrupt practices by an attorney residing in another state, but representing plaintiffs, was discarded by the court and stricken out at the time of entering the decree in favor of defendants. This evidence, however, had all been introduced. The bill of exceptions was prepared and submitted by plaintiffs without including that evi
The legal propositions involved in the case in the different phases through which it has passed have been substantially all settled by the former decisions of this court, above referred to, and the principal question now involved is one of fact, and that is: “Was a will executed at St. Louis in 1897 by Stephen B. Miles, deceased?” If such a will was prepared, executed and witnessed, as claimed by plaintiffs, containing a revocatory clause, it will have to be conceded that the Rulo will was thereby revoked and rendered null and void, and the decree admitting it to probate would have to be set aside and the new trial granted as prayed for by plaintiffs. The finding of the district court was “that Samuel A. Miles and the plaintiffs are not entitled to have the probate of the 1888 will set aside,” and “that Stephen B. Miles did not execute a will in St. Louis in 1897, as alleged in plaintiffs’ petition, and
Preliminary to this, however, it might be well to inquire •how far the former expressions of this court while considering the evidence in the case then before it should be considered as bearing upon the finding of the district court upon the trial from which this appeal is taken, or
This holding, in the opinion of the writer, is in harmony with the well-settled law upon the subject, and left the district court, as well as this court upon subsequent appeals, to pass upon the weight of the evidence, unaffected and untrammeled by the expressions of this court upon former hearings. In Koyer v. Willmon, 106 Pac. (Cal.) 599, it is said, quoting from Allen v. Bryant, 155 Cal. 256:
However, it is proper to say here, without going into details, that additional evidence was presented upon the last trial, which, if believed to be true, might, and probably would, lead this court now to revise its opinion. It is said, in substance, that this new evidence is the result of the labors of detectives sent out to find the needed testimony, and does not carry with it the conviction of its truth which might otherwise obtain. It often happens that detectives, like other people, are unscrupulous and corrupt; that when sent out upon a mission they will resort to almost all kinds of corruption in order to meet the requirements imposed, and the results of their efforts should be looked upon with suspicion. From observations of the method adopted by that class, the writer hereof is in sympathy with the contentions of plaintiffs, and yet this does not of necessity carry with it the conviction that the testimony of apparently disinterested witnesses, even if found by a detective, is untrue and not entitled to credit. They may be truthful and their testimony be en
This brings us to the one controlling question in the case: Does the evidence preponderate in favor of the contention that a will was made in St. Louis? If not, the decision of the district court finding that no such will Avas made will have to stand. If the affirmative of the question is shown by the necessary evidence, a reversal of the decree must follow, and the new trial sought be granted. To the mind of the Avriter, the question is shrouded in considerable mystery. The testator resided in Richardson county in this state. He had been a citizen of Richardson county for many years, he having been one of the early pioneers of that county. He had amassed an immense fortune, much of Avhicli was in that county. He had employed an attorney in Falls City avIio had become familiar with his affairs and in whom lie had confidence. His time was mostly spent upon his farm, or ranch, in that
The testimony of Gadsden was also taken by deposition. This deposition was taken in January, 1902, and according to his answer he was 31 years of age the previous June, and at the time of the alleged execution of the will on the last day of March or the first day of April, 1897, he was less than 26 years of age, and had been admitted to practice at the bar of St. Louis two years before. For the purpose of a comparison with the testimony of plaintiffs’ other witnesses it will be necessary to observe his testimony with some care. He testifies that he was sitting in his office one morning with his stenographer, Mrs. Wilson, when two gentlemen came in accompanied by a third one; that said third party, who occupied a nearby office and was known to him by sight, but he could not give his name, said: “ 'You young men are lawyers in here?’ I said, 'Yes,’ and he said, 'Here are some gentlemen looking for a lawyer,’ ” and left the room; that the older man.of the other two said his name was Stephen B. Miles' from Falls City, Nebraska, and proceeded to give a list of his property and heirs, as the witness says he remembers it; that after referring to a ranch and other large tracts of land the witness asked him about hoW many acres of land he had, and he said some 20,000 acres; that he mentioned a long list of other property, a small tract of land near Falls City, a farm of some 300 acres, another small farm by name, stocks, bonds, bank stocks, notes, liens, mortgages and other evidences of indebtedness. The witness continued: “And when he got through with that I looked up to see if anything was the
It would perhaps be proper to digress for a moment at this point. We have searched the record in vain for any later instructions as to what the contents of the alleged will should be. About 100 pages further on in the examination of the witness he is asked to give the contents of the will as executed, and he puts it: That of the other lands of the testator the will gave “his friend Prank Marvin sucli one of his farms, was the statement, not exceeding 300 acres in extent, as he might elect to choose. To his namesake, Miles somebody — that name I don’t remember — he devised another farm, simply describing it as ‘my blank place,’ and adding some phrase, where he now lives with his parents, or some such descriptive phrase.” If the witness is telling the truth, or rather if the final instructions were as he gives them, it is clear that those instructions were violated by him, and, according to his own theory of the facts, the will he says Mr. Miles signed was not his will, and Mr. Miles knew nothing of the contents of the paper it is claimed he signed. The witness details trips to the Southern hotel; his finding a card upon his table; his going to the St. James hotel, taking a pen or pencil “rough copy” of the will he had prepared; his being escorted to the room occupied by Mr. Miles, where he found him lying on a bed, “around that bed was some kind of curtains, or a sheet or mosquito net, or something surrounding it almost entirely”; his finding another gen
Mr. Quynn, one of the two, testifies that he was called to witness a will; that it had been written with a pen, but that the only evidence he had that it was a will was a remark by Mr. Miles that the paper was his will; that lie did not read a word of it, has never seen it since; that there must have been 8 or 10 sheets or leaves, forming a bulk or body of sheets of paper about half an inch in thickness; while Gadsden testifies there were but 2 sheets or leaves, making less than 4 pages. Quynn testifies fur
Note what Gadsden testifies to: “When the second man came in I said, ‘Gentlemen (addressing the witnesses), this is a will Mr. Miles is making, which I have just drawn up in this room, and we are going to witness it.’ * * * The colonel said, ‘Yes, it is my will,’ or some short sentence,’ and I said, as I remember it, ‘Mr. Miles, you declare this to be your last will and testament, and that you sign it here in the presence of these two gentlemen.’ He said, ‘I do.’ ” And again, he says he said to the witnesses: “ ‘Gentlemen, I want you to witness this. Do you witness this in the presence of Mr. Miles, the testator, and in the presence of each other,’ and they said, ‘We do.’ ” It is very evident that nothing of this kind occurred on the occasion referred to by Mr. Miller and Mr. Quynn. There is collateral evidence, not depending upon the testimony of Gadsden, that he (Gadsden) probably wrote a will for some one about the date referred to, but this collateral evidence falls far short of proving that that one was
It is not our purpose to enter into an examination or discussion of the motiAus, actions or consciences of the Avitnesses, nor to make any unnecessary unfavorable comments upon them personally, as those whose testimony is now under consideration are citizens of another state, and whose Iíaus are Avholly unknoAvn to the courts passing upon this case, except as the same may be reflected by the testimony of Avitnesses and the record. It is our opinion that both Mr.-Miller and Mr. Quynn are mistaken when they testify, as they probably believe, that they witnessed a will for Stephen B. Miles. As we have above indicated,
As we have said, the question of the making of a will in St. Louis is, and must be, the controlling one in this case. The burden of proof to establish the fact of the making of the will is upon plaintiffs. It is the well-settled doctrine in this state that “parol evidence to show that a former will was revoked by implication by reason of a subsequent will, which cannot be found, must be clear, unequivocal and convincing.” Williams v. Miles, 68 Neb. 463; Clark v. Turner, 50 Neb. 290. In the latter case we quote with approval' the following from Chisholm’s Heirs v. Ben, 7 B. Mon. (Ky.) 408: “The books of reports contain many cases in which wills lost or de
It is said the provisions of the Rulo will are unjust and an improper discrimination in favor, of some of the children of the deceased and against others. As viewed from the standpoint of conditions as they exist at this time, and not at the time of the making of the will, or up to the time of the death of the testator, this would seem true. But, unfortunate as it may be for some who are not so Avell provided for and who are now respected, respectable and moral citizens, we are not prepared to denounce the testator as having been during his life lacking in judgment or a disposition to conserve his estate and do justice between his children. It would, no doubt, have been intensely gratifying to Mr. Miles could he have said at any time before his death that the best and proper thing to do would bo to divide his large estate equally among his children, giving to each his full share in fee absolute,
Evidence was taken and submitted bearing upon the conduct and statements of Mr. Miles after his return from St. Louis and before his death. If we apply the rule of Clark v. Turner, supra,, the statements of the testator, if made, that he had made a will in St. Louis, or elsewhere, subsequent to the execution of the Eulo will, could not establish either the fact of the execution or contents of such will. If he disposed of and distributed to his heirs property claimed by plaintiffs to have been devised and bequeathed by the supposed will, but not in accordance' with its supposed provisions, if entitled to any consideration, it could only be construed as indicating that no Avill had been made.
It was sought to prove by the facts and testimony of Avitnesses that defendant Joseph H. Miles was guilty of unfilial conduct toward his father at the time of li is last sickness and death, and thereafter in connection with the remains of the deceased, and that he did not act in good faith Avitli his brother Samuel, as well as the contention ilmt he had had the opportunity to find and destroy the will said to have been made at St. Louis, but we find no satisfactory proof of unfilial conduct upon his part, and there is no evidence that he ever found or destroyed any AA'ill. These charges rest in suspicion which it is hoped is entertained only by counsel.
Not only do we find no sufficient reason for disturbing the decree of the district court, but we are satisfied that the finding and decision of that court that “Stephen B. Miles did not execute a Avill in St. Louis in 1897, as alleged in plaintiffs’ petition, and that the will known in the records as the ‘Eulo will’ is the last will and testament
Affirmed.