Camin's Estate, In re

• Court: Nebraska Supreme Court
• Writing for the Court: Heard before KRIVOSHA; HASTINGS
• Citation: Camin's Estate, In re, 323 N.W.2d 827, 212 Neb. 490 (Neb. 1982)
• Decision Date: 20 August 1982
• Docket Number: No. 44233,44233
• Parties: In re ESTATE OF Herman A. R. CAMIN, deceased. Martin ACHTERBERG et al., Appellants, v. FARMERS STATE BANK & TRUST COMPANY, LEXINGTON, Nebraska, et al., Appellees.

Page 827

323 N.W.2d 827

212 Neb. 490

In re ESTATE OF Herman A. R. CAMIN, deceased Martin ACHTERBERG et al., Appellants, v. FARMERS STATE BANK & TRUST COMPANY, LEXINGTON, Nebraska, et al., Appellees.

No. 44233.

Supreme Court of Nebraska.

Aug. 20, 1982.

Syllabus by the Court

1. Wills. The burden is upon the proponent of a will, both in the county court and in the District Court on appeal, to prove by a preponderance of the evidence not only the lawful execution of the will but also 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 to adduce sufficient competent evidence to overcome the presumption arising therefrom, after which the burden of going ahead and proving the issues of lawful execution and testamentary capacity by a preponderance of the evidence devolves upon the proponent.

2. Wills. Under the Nebraska Probate Code, Neb.Rev.Stat. §§ 30-1601 et seq. (Reissue 1979), prima facie proof of the testator's testamentary capacity is established by the introduction of a self-proved will without the presentation of the testimony of all of the attesting witnesses. Such prima facie proof is rebuttable with competent evidence to the contrary, although in the final analysis the burden of persuasion remains with the proponent of the will at all times.

3. Wills. Although it may be good form in some instances for a witness to a will to explore with the testator the latter's testamentary capacity, the nature of the document, and its voluntary character, a failure to do so in and of itself will not disqualify that person from serving as an attesting witness under the provisions of Neb.Rev.Stat. § 30-2327 (Reissue 1979).

4. Wills. A prior will, executed when the testator's testamentary or mental capacity was and is unquestioned, and as to which the existence of undue influence is not charged, and which conforms substantially as to the results produced to the instrument contested, may be considered as competent evidence for the purpose of refuting charges of undue influence or want of testamentary or mental capacity by showing that the testator had a constant and abiding scheme for the distribution of his property.

5. Wills. The mental capacity of a testator is tested by the state of his mind at the time he executed his will. If the testator knows the extent and character of his property, the natural objects of his bounty, and the purposes of his devises, such testator is mentally competent to make a will.

6. Evidence: Appeal and Error. The exercise by the trial court of its discretion in ruling on the admission or rejection of evidence in a jury trial will generally not be reviewed by this court, unless it is clearly or plainly shown that the trial court abused its discretion.

7. Collateral Evidence: Appeal and Error. The receipt or rejection of collateral evidence is largely within the discretion of the trial judge, and his rulings in that regard will rarely be disturbed.

8. Witnesses. As a general rule, a party should not be permitted to cross-examine a witness as to matters foreign to the scope of the direct examination, particularly where it relates to matters that are collateral to the issues in the case.

9. Wills: Proof: Jury Instructions. Where the court's instructions impose a greater burden of proof on the proponents of a will than is required by law, it cannot be said that the opponents were thereby prejudiced.

10. Jury Instructions. It is the duty of the trial court to instruct the jury upon the issues presented by the pleadings and the evidence.

11. Wills: Jury Instructions. An instruction to the jury that a disposition under a will need not be reasonable, conventional, or judicious is not erroneous so long as the testator has the requisite mental capacity to execute a will and has not been subjected to undue influence.

Kenneth Cobb and Dale E. Dahlin of Law Offices of Kenneth Cobb, P.C., Lincoln, for appellants.

M. J. Bruckner of Marti, Dalton, Bruckner, O'Gara & Keating, P.C., Lincoln, for appellees.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.

HASTINGS, Justice.

This is an appeal from a judgment of the District Court for Custer County admitting to probate the last will and testament of the decedent, Herman A. R. Camin, following a jury verdict in favor of the proponents. The appellants have assigned numerous errors on this appeal, including that the proponents of the will failed to establish a prima facie proof of testamentary capacity of the decedent by failing to present the testimony of all the available attesting witnesses of the will; that the attestations of the attesting witnesses were invalid and ineffective; that the trial court erred in admitting into evidence prior wills executed by the decedent; that the trial court erred in limiting the appellants' cross-examination of a witness; and, finally, that the trial court erred in instructing the jury and in submitting an improper standard for testamentary capacity in the verdict of jury form. Upon consideration of these various assignments of error, we affirm.

The decedent, Herman A. R. Camin, died at the age of 77 on July 16, 1979, in Custer County, Nebraska. The petition for formal probate of his last will and testament was filed in county court on the following day by Bernard Smith as attorney for the petitioners, Melvin, Herman, and Martin Achterberg, and the Farmers State Bank & Trust Company. The terms of this will, which was executed on February 1, 1979, appointed several personal representatives and instructed them to liquidate the assets of the estate at public auction. Following the payment of all taxes and expenses from the proceeds of the auction, the will set forth specific monetary bequests of $1,000 each to 12 of the decedent's relatives, and of $750 each to six of the relatives of the deceased wife of decedent. Finally, the will established a trust for the benefit of the Trinity Evangelical Lutheran Congregation of the Unaltered Augsburg Confession Church of Lexington, Nebraska, in which the residue of the estate was to be placed. The will also established a formula for the distribution of the principal and income of the trust to the church over a period of years, under the direction of a designated trustee. At the time this document was drafted, the decedent allegedly valued his estate, which consisted of land and numerous certificates of deposit, at approximately $1,000,000.

The contestants filed their objections to the probate of the will on August 10, 1979, alleging that the decedent was not of sound mind or mentally capable of making a will, and that "on the date of said purported will and for a long time prior thereto and continuously thereafter until his death said decedent was not competent to make a last will and testament." Nevertheless, the Custer County Court admitted the will to formal probate on October 5, 1979. An appeal was taken to the District Court wherein the issue of the decedent's competency was tried to a jury, which found that the document executed on February 1, 1979, "is a valid Last Will and Testament and the said deceased was mentally competent at the time he signed the same." This appeal followed that verdict.

The appellants' first assignment of error challenges the manner by which the proponents attempted to prove a prima facie case in support of the decedent's testamentary capacity. By statute, the proponents of a will have the burden of establishing prima facie proof of testamentary capacity, as well as the ultimate burden of persuasion as to that matter. Neb.Rev.Stat. § 30-2431 (Reissue 1979). However, this section does not go forward to describe the manner by which such prima facie proof must be presented. In this respect, the provisions of Neb.Rev.Stat. § 30-2430(b) (Reissue 1979) appear to be directly applicable. This section provides in part that "If the will is self-proved, compliance with signature requirements for execution is conclusively presumed and other requirements of execution are presumed subject to rebuttal without the testimony of any witness upon filing the will and the acknowledgment and affidavits annexed or attached thereto, unless there is proof of fraud or forgery affecting the acknowledgment or affidavit." (Emphasis supplied.) The instrument in the present action was executed by the decedent and attesting witnesses in a manner consistent with the provisions of Neb.Rev.Stat. § 30-2329 (Reissue 1979), and consequently qualifies as a "self-proved" will as that term is used in the statutory provisions governing probate in Nebraska.

The appellants contend that the proponents failed to establish prima facie proof of the decedent's testamentary capacity due to their failure to offer the testimony of all of the available attesting witnesses, or, in lieu thereof, in failing to offer evidence of their unavailability. The record reveals that the proponents called only one of the three attesting witnesses during the trial of this matter and that the remaining two witnesses were available to present their testimony at trial. The appellants base their contention that such a failure to call the attesting witnesses causes the proponents to fall short of the requisite prima facie proof of testamentary capacity upon the cases of In re Estate of Coons, 154 Neb. 690, 48 N.W.2d 778 (1951); First Trust Co. v. Lanyon, 156 Neb. 21, 54 N.W.2d 262 (1952); and Moore v. Moore, 158 Neb. 620, 64 N.W.2d 301 (1954).

Although the appellants have accurately stated the law of those cases, they appear to have failed to realize the total impact of the probate reform which took place in 1974 with the passage of L.B. 354. The aforementioned cases were adjudicated prior to the passage of L.B. 354, at a time when the law required the testimony of one subscribing witness to probate a will...