O'Connor v. Slaker (In re O'Connor's Estate)

• Decision Date: 27 September 1920
• Docket Number: No. 21036.,21036.
• Citation: 105 Neb. 88,179 N.W. 401
• Parties: IN RE O'CONNOR'S ESTATE. O'CONNOR ET AL. v. SLAKER ET AL.
• Court: Nebraska Supreme Court

105 Neb. 88

179 N.W. 401

IN RE O'CONNOR'S ESTATE.

O'CONNOR ET AL.

v.SLAKER ET AL.

No. 21036.

Supreme Court of Nebraska.

Sept. 27, 1920.

Syllabus by the Court.

The value of the testimony of a handwriting expert on the issue of forgery depends largely on the cogency of the reasons for his opinion.

The mere opinion of witnesses who testify alone from familiarity with a signature and from comparing genuine and disputed writings has less weight generally on the issue of forgery than expert opinions based on scientific skill and sound reasons.

The result of comparisons made by handwriting experts is a character of evidence sanctioned by statute, and merits proper consideration on the issue of forgery in a civil action.

Testimony of handwriting experts that a will offered for probate is a forgery, if based on sound reasons and circumstances supporting that theory, may be sufficient to overturn the testimony of subscribing witnesses that they saw the will executed.

On the issue that a will offered for probate is a forgery, the testimony of subscribing witnesses that it was duly executed may be overthrown by any probative proof, either direct or circumstantial, if admissible under the ordinary rules of evidence.

After substantial evidence has been adduced in support of the plea that a will offered for probate is a forgery, there is no presumption that the persons purporting to be subscribing witnesses told the truth in testifying that they saw the will executed, though not directly impeached or directly contradicted.

After contestants adduce credible proof that the will offered for probate is a forgery, it is error for the triers of fact to entertain the presumption that subscribing witnesses, in testifying that it was duly executed, told the truth merely because they were not directly impeached, but the issue must be determined from all evidential facts considered in their proper light in connection with the plea that the will is genuine and with the charge of forgery.

Where circumstances show that subscribing witnesses testified falsely that the will offered for probate had been duly executed, the will may be rejected without direct proof that their reputations for truth and veracity were bad or that such witnesses were corrupt or dishonest.

Evidence summarized in the opinion held to show clearly that the will offered for probate is a forgery.

Where the evidence shows that the judgment from which the appeal is taken is clearly wrong on the sole issue of fact, it will be reversed, if properly challenged on that ground.

Appeal from District Court, Adams County; Dungan and Dorsey, Judges.

Proceeding by Charles O'Connor and others to probate the will of John O'Connor, deceased, against John Slaker, acting administrator de bonis non, and Hanora O'Connor and others, objectors and contestants. A refusal of the county court to admit the will to probate was reversed by the district court, and contestants appeal. Reversed, and judgment of county court affirmed.

Morrissey, C. J., dissenting.

J. A. Gardiner and Tibbets, Morey & Fuller, all of Hastings, Burkett, Wilson, Brown & Wilson, of Lincoln, McDonough & McDonough, of Denver, Colo., Sutton, McKenzie, Cox & Harris, of Omaha, and W. T. Thompson, of Lincoln, for appellants.

J. W. James and F. P. Olmstead, both of Hastings, for appellees.

ROSE, J.

This is a proceeding commenced in the county court of Adams county to probate an instrument alleged by proponents to be the will of John O'Connor, who died in Hastings, Neb., August 17, 1913. The county or probate judge received the document by mail September 12, 1917, without any letter of transmittal. Proponents offered it for probate. Parties claiming to be heirs of decedent, but ignored in the will, contested it as a forgery. The county or probate court, the court of exclusive, original jurisdiction, found that the instrument offered was not the will of decedent, and refused to probate it as such. Proponents appealed to the district court, where, upon a trial without a jury, the will was sustained as genuine. To reverse the judgment of the district court the contestants have appealed to this court.

The controlling question for determination is the sufficiency of the evidence to sustain the finding that the instrument offered for probate is the will of decedent.

John O'Connor went to Hastings alone more than a third of a century ago, and resided there like a recluse until his death. He settled among strangers. He was a cobbler, and pursued his trade and business diligently, lived modestly, and left the community at long intervals for brief periods only. In the meantime his estate increased until it exceeded in value $100,000. At the time of his death the neighbors who had known him best and the persons whose business relations with him had extended over a long period of years knew nothing about his early history or his family connections. Since, however, many persons claiming to be his heirs and a number of his purported wills have engaged the attention of the courts. One of the alleged wills was found to be a forgery. In re Estate of O'Connor, 101 Neb. 617, 164 N. W. 570. The will in controversy now is in form as follows:

“I, John O'Connor, of Hastings, Adams county, Nebraska, make, publish and declare this my last will and testament, hereby annulling and revoking all other wills and testaments made by me.

First. It is my will that all my just debts including expenses of my last illness and funeral expenses be paid.

Second. It is my will that a suitable monumentmark my last resting place and that my brother or his heirs, if located, take charge of and bury my remains.

Third. Having all my life remained single and unmarried and having at this date no wife or children to inherit my property and having no relatives now living unless my brother Charles or his heirs survive me, I hereby dispose of my property and effects as follows, to wit:

Fourth. I will, bequeath and devise all my property, be it real, personal or mixed and where ever situate, if he be living, to my said brother Charles and if he be dead, I will, bequeath and devise all my said property to his heirs.

Fifth. Should my said relatives fail to claim under this will within five years after my death, then and in that event, it is my will that all my property, be it real, personal or mixed and where ever situate go and be used for the purpose of founding an orphanage for homeless children of the state of Nebraska, not including the cities of Lincoln and Omaha.

One of the provisions herein being that no child shall be and remain an inmate of said orphanage longer than ten years, or after said child has reached its tenth birthday.

A second provision is that all sums of money spent or used in founding or maintaining such orphanage be under the management and control of three directors or trustees, one of whom shall be my executor hereinafter named or his successor, which said successor shall be named or appointed from Adams county, Nebraska, by the then acting Governor of the state of Nebraska. The other two trustees shall be named from Adams county, Nebraska, aforesaid by the then acting mayor of Hastings, Nebraska, and the then acting judge of the circuit court of Adams county, Nebraska.

A third provision is that said orphanage and all property incident thereto be located in Adams county, state of Nebraska.

Should it be ascertained that my estate would be insufficient to maintain said orphanage as hereinbefore provided then I would suggest and it is my will, that the age limit of children in said orphanage be reduced, unless the state of Nebraska would make up the deficiency.

Sixth. I hereby appoint my trusted friend, Mr. W. H. Lanning, of Hastings, Nebraska, executor of this, my last will and testament.

Seventh. It is my will that my said executor and any trustees that may be appointed hereunder be required to give bond for the faithful performance of this trust.

Executed by me this 10th day of October, 1908.

John O'Connor.

Signed, sealed, published and declared by the above-named John O'Connor, as and for his last will and testament, who in the presence of us and at his request, and in the presence of each other, have subscribed our names hereto as witnesses hereof.

Lawson Tarwater.

Stephen H. Turner.

State of Missouri. County of Buchanan ss.:

On this 10th day of October, 1908, before me, the undersigned, a notary public within and for Buchanan county, state of Missouri, personally appeared John O'Connor, of Hastings, Nebraska, who is personally known to me to be the person described in and who executed the foregoing will and testament and subscribed and published same in the presence of the above-named witnesses to be his last will and testament.

In witness whereof, I have hereunto set my hand and affixed my official seal at my office in St. Joseph the date and year first above written. My term expires on the 22d day of March, 1909.

[Seal.] Grant S. Watkins, Notary Public.”

If this is a genuine will, it was drawn by and acknowledged before Grant S. Watkins, an attorney at law and a notary public, and was executed in his office on the fourth floor of the German-American Bank Building, St. Joseph, Mo., October 10, 1908. It is alleged that the Charles O'Connor mentioned in the will as the brother of decedent died June 13, 1903, and that proponents, eleven in number, are his sons and daughters. Watkins died August 5, 1909. His widow, a witness for proponents, told the story of the finding of the will, which may be summarized thus:

September 11, 1917, James D. Witten, of Kansas City, Mo., who long ago had shared a law office with Watkins, and who had not been seen by Mrs. Watkins for a good many years, called on her at her home in St. Joseph, asked her about some mining stock formerly owned by her husband, inquired if she wanted to sell it, and wondered what had become of her husband's law books. She told him the books had all been sold except a set of...