Clark v. Turner

• Decision Date: 07 January 1897
• Citation: 69 N.W. 843,50 Neb. 290
• Parties: CLARK v. TURNER ET AL.
• Court: Nebraska Supreme Court

50 Neb. 290

69 N.W. 843

CLARK

v.TURNER ET AL.

Supreme Court of Nebraska.

Jan. 7, 1897.

Syllabus by the Court.

1.The contents of a lost will cannot be proved solely by the declarations of the testator.

2.The testimony of a witness as to the contents of a will, his knowledge being derived from testator's reading the will to him, and not from having himself inspected it, is in effect only testimony as to the testator's declarations.

3.Such declarations, it seems, are admissible to corroborate more direct evidence.

4.Attorney's fees cannot be allowed in the contest proceedings to unsuccessful proponents of a will.If such proponents are entitled to reimbursement out of the estate, it must be had in the course of administration, and after administration granted.

Error to district court, Lancaster county; Hall, Judge.

Petition by William M. Clark and Nahum S. Scott, executors of John J. Turner, deceased, for the probate of the will of their testator, which was contested by William J. Turner and R. Morris Turner, heirs at law.The will was admitted to probate, and, on appeal to the district court, there was a judgment for contestants, and proponent Clark (proponent Scott having died in the meantime) brings error.Affirmed.

Marquett, Deweese & Hall and G. M. Lambertson, for plaintiff in error.

Sawyer, Snell & Frost and Chas. O. Whedon, for defendants in error.

IRVINE, C.

John J. Turner was an elderly citizen of the city of Lincoln, blessed with a pious disposition and a considerable quantity of this world's goods.He died March 1, 1890, leaving, him surviving, two sons, William J. Turner and R. Morris Turner.Some time after his death, William M. Clark and Nahum S. Scott propounded for probate what purported to be a copy of John J. Turner's last will and testament, it being alleged that said will had been deposited in a valise belonging to the testator, which, after his death, had been delivered to his sons, and that thereafter it was claimed that the house in which the valise had been kept was burglariously entered, the valise cut open, and its contents extracted.The probate was contested by the two sons.The result of the proceedings in the county court does not appear from the record.The case was, however, appealed to the district court, where, as a result of what appears to have been a third trial there, a verdict was rendered in favor of the contestants.Judgment was rendered denying probate, and the proponent Clark (the proponent Scott having died pending the proceedings) prosecutes to this court proceedings in error to reverse that judgment.

The copy of the will, as propounded, is as follows:

“I, John J. Turner, of Lincoln, Nebraska, being of sound and disposing mind and memory, aged _____, do hereby declare this to be my last will and testament, as follows:

First.I will that my debts and reasonable funeral charges be paid.

Second.I give and bequeath to the Board of Missions for Freedmen of the Presbyterian Church of the United States of America the value of the note of R. Morris Turner for four thousand five hundred dollars, secured by mortgage on lot three (3), in block one hundred and twenty-nine (129), city of Lincoln, Lancaster county, Nebraska, less two thousand dollars borrowed at the First National Bank of Lincoln, Nebraska, and paid over to said board.

Third.I give and bequeath to the Board of Foreign Missions of the Presbyterian Church in the United States of America the value of a note made by William J. Turner to me for the sum of five thousand seven hundred dollars, less the amount necessary to pay my note of $2,000 at the First National Bank of Lincoln, Nebraska, for which this note of $5,700 is pledged as collateral security.

Fourth.I give and bequeath to Keren Rootham the entire use of my double house on North Twelfth street, east of the university, during her natural life, and in case the house shall be destroyed she may use the entire amount of the insurance to rebuildthe same, or she may receive one-half of the amount of the insurance and release her interest and claim upon the property.She may assign and dispose of her entire interest in rents and use of said house at any time, and at her death the said property shall go to my two sons, William J. Turner and R. Morris Turner.

Fifth.I give, grant, and bequeath to my son R. Morris Turner the house and lot where I now reside, with all the furniture and family library therein; also, any balance of the note of R. Morris Turner not bequeathed or paid at the time of my death.

Sixth.I give and bequeath to my son William J. Turner all my medical books, instruments, and medicines, books of account, and accounts belonging to me at the time of my death.

I hereby constitute and appoint Capt. N. S. Scott and William M. Clark to be the executors of this my last will and testament, hereby revoking all former wills by me made.

Witness my hand and seal this _____ day of _____, 1888.

John J. Turner.

Fred Schmidt.

Geo. A. Hagensick.

The foregoing instrument was, on the day of the date thereof, signed, sealed, published, and declared by the testator therein named, John J. Turner, as and for his last will and testament, in the presence of us, who, at his request, and in his presence and in the presence of each other, have hereunto subscribed our names this _____ day of _____, 1888.

Fred Schmidt.

Geo. A. Hagensick.

Codicil to My Last Will and Testament.

I, John J. Turner, hereby will and direct that my executors shall pay to my brother living in _____, out of the interest of William J. Turner's note, the sum of three hundred and fifty dollars, to be used by him as a loan, for the term of five years, without interest.At the expiration of five years to be collected and paid over to the Board of Foreign Missions of the Presbyterian Church in the United States of America.

John J. Turner.

Dated December _____, 1889.

Witness:

Sarah Turner.

Keren Rootham.”

A few remarks in regard to the subject-matter of the testator's property may not be inappropriate, preliminary to the statement of other facts in the case.The alleged testator, John J. Turner, referred to usually in the evidence as “Dr. Turner,” by which term we shall hereafter designate him, was, at the time of his death, and at the time it is claimed this will was executed, seised of the land described in the will and also of another lot in the city of Lincoln not thereby disposed of.He had previously owned two other lots in the city of Lincoln, one of which he had conveyed to his son R. Morris Turner, receiving, in consideration for the conveyance, the latter's note for $4,500, secured by mortgage on the lot.The other lot he had, at about the same time, conveyed to his son William J. Turner, receiving in return the latter's note for $5,700.It appears from the evidence that the object of both these conveyances was to provide annuities, by virtue of an arrangement entered into between Dr. Turner and his sons, whereby, in order to relieve the doctor of the burden of caring for the property, the conveyances were made to his sons, they to pay interest on the notes during the doctor's lifetime.They contend that, upon his death, interest was to cease, and the principal of the notes was not to be paid.These are the notes referred to in the second and third paragraphs of the will propounded.Dr. Turner's wife died in 1883.Soon thereafter one Keren Rootham, or, as she herself signs her name, Kerenhappuch Rootham, a maiden of mature years, became installed in Dr. Turner's home as his housekeeper.It is to her that the fourth paragraph of the alleged will relates.Mr. Clark and Mr. Scott, who are named as executors, were prominent members of the Presbyterian Church, of which Dr. Turner was also a member.Capt. Scott was a lawyer, and seems to have been Dr. Turner's legal adviser.Dr. Turner seems to have acquired somewhat of a habit of making wills, as there is evidence, chiefly from entries in his diary, of his having executed several such instruments in the last decade of his life.There is a little evidence of this character tending to show the execution by him of a will later than the one here in controversy, but this evidence would not be of such a character as to justify the rejection of this will, were this one satisfactorily established.It is claimed that the will propounded was executed in the summer of 1888, and it quite satisfactorily appears that Dr. Turner, during that summer, did execute a will, which was witnessed by Fred Schmidt and George A. Hagensick.Neither witness pretends to have been informed as to the contents of the will.There is evidence to the effect that, on one occasion, and perhaps on three occasions, between the time when this will was executed and Dr. Turner's death, the doctor exhibited to Miss Rootham an envelope, and also, without displaying its contents, a paper inclosed in that envelope, telling Miss Rootham that it was his will, and calling her attention to the fact that he deposited it in a certain valise, which he hung in a closet in his house.He also placed the key to the valise in a drawer, and called her attention to that fact.He left with her an envelope marked “Miss Keren Rootham(after my death).J. J. Turner.”This envelope, when opened, contained a direction to Miss Rootham “to give my valise key to Mr. William Clark, who can take the note case, which contains all valuable papers, also any money in my old book, and the key of the house to my son R. Morris Turner.”Mr. Clark was, unfortunately,absent from Lincoln at the time of Dr. Turner's death.Immediately after his funeral the two sons of Dr. Turner found Miss Rootham in possession of the valise.At their solicitation, she exhibiting some reluctance, she delivered the valise to William J. Turner, both sons giving her a written receipt therefor.The valise was placed in William J. Turner's house.Early in May it was announced that this house had been entered by burglars, and a...