76 Neb. 195 | Neb. | 1906
On tbe 10th day of July, 1899, Peter Grlandt, a citizen of Douglas county, who was then very sick and confined to his bed, executed an instrument afterwards admitted to probate as his last will and testament. He recovered from this illness, and for three years or more attended to the ordinary affairs of life. He died on January 22, 1903, leaving surviving him eight adult children, who are beneficiaries under the will, and three minor grandchildren, who were the only children of a deceased daughter. They, too, are beneficiaries under the will of their grandfather, but not to as great an extent as they would participate, had no will been made. Soon after his death a petition was filed in the county court of Douglas county for the probate of this will. Notice of this petition was published under, the direction of the county court of Douglas county three successive weeks prior to the day of hearing in the Western Laborer, a weekly newspaper printed and published in said Douglas county. On the 3d day of February, 1903, the county court appointed for the three grandchildren a guardian ad litem, who on the same day filed a written acceptance of the appointment. On the 21st day of February, the time mentioned in said notice, the guardian ad litem appeared in the county court, filed his answer to the petition for probate of the will, denied that the alleged will was the last will and testament of said Peter Glandt, denied each and every allegation in said petition, and asked that the court require affirmative proof of all the matters set out and of the genuineness of said will. The county court received the evidence of but one of the three attesting witnesses, and admitted the Avill to probate. Subsequently, appellant was appointed guardian of the three grandchildren, and as such guardian, on the 16th day of July, 1903, instituted this action in the county court to set aside and annul the probate of the will. From the judgment of the county court an appeal was taken to
The action is equitable in its nature. In his petition appellant alleged that the notice for the probate of the will was published in an obscure paper, printed and published in the city of Omaha and circulating almost exclusively in the labor circles, and having no circulation in the vicinity where his wards reside; that the selection of the guardian ad litem was at the instigation of the proponent, and that the appointment prior to the completion of the notice was Avithout'jurisdiction and void; that the court had no jurisdiction to admit the will to probate as he did upon the evidence of only one of the three attesting witnesses, the guardian ad litem having filed his answer as above shown; and further alleged that said purported will, when the same was presented for probate, was mutilated and destroyed, in that a part of the fourth sheet constituting said will Avas torn off; that deceased had revoked and destroyed said will by erasing his name therefrom by running a heavy ink line through his name; and that he was the victim of undue influence exerted by some of his children, beneficiaries under said will; and also alleged that the guardian ad litem made no investigation concerning the execution of said will, nor the rights of said minors. The lack of diligence cannot be chargeable to these children, and it is unnecessary for them to tender an excuse for not appearing on the date of the probate of the Avill. Appellant does not state in his petition that the proceedings complained of Avere fraudulent. But the admission to probate of a will, which had, in fact, been mutilated or otherwise revoked, would have been a gross violation of the rights of the grandchildren. And for these reasons the petition stated a cause of action, and, had the evidence sustained such allegations of fact, the probate of the will should have been set aside and the children permitted to file objections.
The evidence presented by the appellant- shows the will Avritten upon several sheets of ordinary ruled pqper. The
The guardian ad litem was appointed subsequently to the first publication of said notice and prior to the last, and this, appellant argues, was an irregularity sufficient to defeat the probate of the will. None of the interested parties have the right to name or dictate to the court the
Appellant contends that, inasmuch as this guardian ad litem had filed the general denial and demanded proof of the due execution of the will, the court could not legally admit the will to probate upon the evidence of but one subscribing witness. The appointment and appearance of a guardian ad litem was not a condition precedent to the admitting of the will to probate, and it does not appear in the proof that the failure to call other attesting witnesses was prejudiced to the children.
The evidence produced upon the trial, in our opinion, did not support the allegations of’ the petition, and we recommend that the judgment of the district court be affirmed.
By the Court: For reasons set forth in the above opinion, the judgment of the district court is
Affirmed.