In re Kaiser's Estate

• Decision Date: 28 October 1948
• Docket Number: 32467.
• Parties: In re KAISER'S ESTATE. McDOWELL v. PARKER et al.
• Court: Nebraska Supreme Court

34 N.W.2d 366

150 Neb. 295

In re KAISER'S ESTATE.

McDOWELL v. PARKER et al.

No. 32467.

Supreme Court of Nebraska

October 28, 1948

[Copyrighted Material Omitted]

Syllabus by the Court.

1. Issues of fact in will contest cases are determined in this court by the sufficiency of the evidence under the law to sustain the verdict of the jury or the findings of the district court, and where the evidence in a case tried to the jury is conflicting, issues of fact are questions for its determination.

2. The burden is upon proponent of a will, both in the county court and the district court on appeal, to prove by a preponderance of the evidence the lawful execution of the will and the testamentary capacity of the testator at the time when the will was made. However, if the proponent makes a prima facie case in chief as to both, then it devolves upon a contestant to proceed and adduce sufficient competent evidence to overcome the presumption arising therefrom, after which the burden of going ahead and proving those issues by a preponderance of the evidence, devolves upon proponent.

3. Statutory provisions regarding the manner in which wills must be executed are generally held to be mandatory and subject to strict construction, and if not substantially complied with, the will is inoperative.

4. The attestation required of witnesses to a will consists in their seeing that those things exist and are done which the statute requires to exist or to be done in order to make the instrument, in law, the will of the testator.

5. 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.

6. If the signing of a will is in fact the testator's own act with the intention of making a will, though with the assistance of another, it is not necessary to prove any express request for assistance on his part.

7. A testator signs his will when he makes the physical effort and performs the act, even though his hand is steadied or guided by another, if something is produced upon the paper sufficient to identify his signature, and his own purpose to sign accompanied the action which he was assisted and not controlled.

8. A codicil ratifying and confirming a will, in whole or in part will amount to a republication of the will.

9. A codicil signed by the testator and attested and subscribed in substantial compliance with the statute, which codicil in express terms ratifies and confirms a will, is a republication and reacknowledgment thereof, and remedies all defects in its execution.

10. A will may be valid if written on several sheets, provided (1) They are connected physically by mechanical, chemical, or other means when executed; or (2) they are so connected by the meaning, adaptation, and coherence of their internal sense and subject matter that they may be thus identified as parts of one will; or (3) the disconnected sheets are appropriately identified by the testimony of the attesting and subscribing witnesses as connected parts of the will signed by the testator and attested and subscribed by them.

11. A testator who is competent may dispose of his property as he pleases and he is not required to recognize relatives in his will.

12. Testamentary capacity is tested by the state of the testator's mind at the time of the execution of the will, and he is mentally competent to make a will if he knows the extent and character of his property, the proposed disposition of it, and the natural objects of his bounty.

13. Error cannot be predicated on the admission of certain testimony when ample testimony of the same nature was admitted without objection.

14. If, when evidence is offered, the other party consents to its introduction, or fails to object, or to insist upon a ruling on an objection to the introduction of such evidence, and otherwise fails to raise the question of its admissibility, he waives whatever objection he may have had thereto.

Porter & Porter, of Crawford, for appellants.

Charles A. Fisher, of Chadron, for appellee.

Heard before SIMMONS, C. J., PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

CHAPPELL Justice.

Brothers and sisters of Omar A. Kaiser, deceased, contested the probate of his will and codicil thereto, upon the grounds that the instruments were not signed by the testator or attested and subscribed as required by law; that they were obtained by undue influence; and that the testator lacked testamentary capacity. Proponent prevailed in the county court and contestants appealed to the district court, where, upon trial to a jury, proponent was awarded a verdict and judgment. Motion for new trial was overruled, and contestants appealed to this court, assigning as error substantially that the trial court erred in refusing to direct a verdict for contestants at the conclusion of proponent's evidence in chief; in giving instructions No. 7, 8, 12, and 15 respectively, and refusing to give contestants' proffered instructions No. 1 and 2; in permitting proponent, over objection of contestants, to respectively identify the beneficiaries under the will and permit the jury to observe them in open court; and, that the verdict and judgment were contrary to law and not sustained by the evidence. We find that the assignments should not be sustained.

At the outset it should be stated that the issue of undue influence was not supported by any competent evidence, and concededly is not involved in this appeal. Our conclusions with reference to the other issues are dependent upon the evidence adduced and well-established rules of law applicable thereto.

Without dispute, Omar A. Kaiser, testator, 70 years of age, whose death occurred September 10, 1946, was during his lifetime a bachelor farmer and rancher. He had accumulated a substantial estate, consisting of lands, securities, and cash. On June 12, 1945, he suffered a cerebral hemorrhage, and, upon his physician's orders, was removed to the Chadron Municipal Hospital, where he remained until his death.

Proponent's evidence in chief consisted of the testimony of testator's attending physician, his attorney, the other witnesses who attested and subscribed his will and codicil, and two friends of testator who not only visited with him in the hospital near the time of the execution of the instruments involved, but also thereafter.

The testimony of those witnesses, together with the instruments themselves, buttressed with other evidence adduced by proponent subsequent to the introduction of contestants' evidence contra thereto upon the issue of testamentary capacity, may be briefly summarized as follows: As a result of the hemorrhage, testator suffered a paralysis of his left side. He also had an old genito-urinary trouble which became aggravated and painful a short time after he entered the hospital, but favorably responded to treatment, and never affected his testamentary capacity. The paralysis affected his speech, which was impaired for approximately two weeks after he entered the hospital. Thereafter, his speech and general physical condition improved, and at all times involved, without relapse mentally, testator was normal mentally and possessed the testamentary capacity essential to the making of a valid will and codicil, as hereinafter defined.

After testator had been in the hospital a few days, his attorney, who had represented him for 30 or 40 years, and had personally known him for 50 years or more, visited him. After the attorney's first visit, he returned upon other occasions at the request of testator. During such visits, testator consulted with the attorney about several business matters involving his property, and at the request of testator, the attorney looked after such matters for him.

On July 13, 1945, testator inquired about and asked the attorney to draw a will for him, and requested that he come back soon. On the following day, the attorney returned. At that time they talked about the testator's brothers and sisters and where they lived, as well as his property, and the disposition thereof, whereat the testator said: 'Well, * * * this property is to go to two little boys. * * * they are the sons of Mike Kaiser. * * * I understand they are in San Diego, California.' Thereafter, the attorney wrote out the will in longhand in the presence of the testator, and read it to him.

The will consisted of two sheets numbered (1) and (2) respectively. The dispositive portion of the will thus written, and signed by the testator, all appeared on page (1). The perfected attestation clause thereof, subscribed by the witnesses alone appeared on page (2). Both the will and the attestation clause recited respectively that the testator's last will and testament was 'on two pages (1 & 2)' and that it was an 'instrument of two pages.' Whether or not the two sheets were physically attached to each other at the time of execution does not affirmatively appear in the evidence. There is competent evidence, however, that page (1) was the paper signed by the testator as his last will and testament in the presence of the attesting and subscribing witnesses, who signed the attestation clause on page (2) in his presence and in the presence of each other, and that after the execution of the will both pages were placed in a sealed envelope and on the same day delivered into the custody of the county judge, who thereafter opened it only after testator's death. The dispositive portion of the will provided: 'I hereby give, devise and bequeath to James Kaiser and Elwin Kaiser, sons of James Kaiser, all of San Diego, California, share and share alike, all of my estate of both...