Hawke v. Euyart

• Decision Date: 16 September 1890
• Citation: 46 N.W. 422,30 Neb. 149
• Parties: HAWKE v. EUYART ET AL.
• Court: Nebraska Supreme Court

30 Neb. 149

46 N.W. 422

HAWKE

v.EUYART ET AL.

Supreme Court of Nebraska.

Sept. 16, 1890.

Syllabus by the Court.

1. A codicil ratifying and confirming a will, in whole or in part, will amount to a republication of the will, bringing down its words, and causing it to speak as of the date of the codicil.

2. A devise in a father's will in favor of a son addicted to the intemperate use of intoxicating liquors, and who had intermarried with one Mrs. G. against his father's will, made in form to the executors of the will, directed that at the end of 10 years from his death, in case the son and legatee should have, in their judgment, thoroughly reformed of his intemperate habits, of his immoral consortings, and evil associations, and shall then be living, with evident promise so to continue during life, a virtuous, temperate, and commendable life, the executors should convey the lands and trust-funds devised to the son and legatee. Held that, in so far as the devise was conditional on the reformation of the son and devisee, the same will be upheld.

3. But a subsequent provision that such trust property and funds should not be transferred until the executors shall have satisfactory proof that the devisee “has permanently freed himself from all influence, connections, associations, cohabitations, and relations, of every name, character, and description, of and with Mrs. G., and her relatives, friends, and intimates,” held to be a condition against public policy, and void, and that upon the first condition, exempt from the second, the devisee will be entitled to the transfer and conveyance of the land and trust-funds of the legacy.

Appeal from district court, Otoe county; FIELD, Judge.John C. Watson, Frank P. Ireland, and L. W. Billingsley, for appellant.

M. L. Hay ward and E. F. Warren, for appellees.

COBB, C. J.

The appellant alleged, in his petition to the county court of Otoe county, that he was the son and heir at law of Robert Hawke, late of said county, deceased, whose last will was offered for probate by Logan Euyart and George W. Hawke, executors named therein, and that he appeared and objected to the probate of said will for the reasons: (1) That no citation or notice was issued or served upon him. (2) That the paper purporting to be the last will and testament of deceased was not his will, but was obtained and procured by circumvention, and by ruse, on the part of Logan Euyart, one of the executors. (3) That the will is void, so far as appellant is concerned, as in absolute restraint of marriage, and against public policy; and that deceased was not, at the time of making it, of sufficient testamentary capacity to make a will; and that the contingency, upon which its bequest to appellant was to take effect, was too remote. The appellant asked that, if the will be admitted to probate, the estate depending upon the marriage condition of appellant be ordered to immediately take effect, absolved from the condition imposed, and that he be entitled to the property willed to him. Notice having been given by publication of the motion to admit the will to probate, there was a hearing in the county court on June 20, 1887. Nathaniel Adams and William F. N. Houser were sworn and examined as witnesses to the will, and the court found that the will and the several codicils thereto were duly executed by Robert Hawke, who was, at the time of executing the same, of full age, of sound mind and memory, and not under restraint or under influence of any kind, and was competent, in all respects, to devise real and personal estate; that said instrument is the last will and testament of said deceased, and ought to be allowed as such; and that the persons therein named as executors are appointed as such, upon giving bond in the sum of $30,000, with sufficient sureties, in accordance with the statute. To all of which the appellant objected, and took his appeal to the district court. There was a stipulation by the parties, proponents and contestant, that the appeal should apply and extend only to the matter of the bequest to William Hawke, and should not in any way affect the other devisees and legatees of the estate, the contestant asking no greater amount than is given him in the will; and he appeals only from the conditions and restrictions attached to such bequest. There was a trial in the district court, July 10, 1888, in which the proceedings of the county court were affirmed, and the petition of the appellant was dismissed, to which exceptions were taken, and the appeal brought into this court.

The bequest to appellant under the will dated February 16, 1884, is as follows: “ Item Third. I give, devise, and bequeath to the executors of this my will, hereafter nominated and appointed, and to the survivorsor survivor of them, all that certain piece or parcel of land situate in the county of Otoe and state of Nebraska, known and described as the ‘north-west quarter of section six, township eight north, of range fourteen east of the sixth principal meridian,’ containing one hundred and seventy-four and one-half acres, more or less, together with the tenements, hereditaments, and appurtenances to the same belonging or in any wise appertaining, and the sum of ten thousand dollars in money, in trust, nevertheless, and to and for the uses, interests, and purposes hereinafter limited, described, and declared; that is to say, upon the trust that my said executors, the survivors or survivor of them, shall, within six months after my decease, enter into and upon the above-mentioned and last-described lands and tenements, and lease and to farm let the same to a good, careful, capable, honest, and industrious tenant or tenants, on such terms and conditions as my said executors, or the survivors or survivor of them, shall deem meet and just, and out of the rents and profits arising from said lands-- First, pay and discharge all taxes, revenue duties, and assessments, of every name and nature, legally imposed, levied, and assessed thereon; second, make all necessary and proper repairs to the building, fences, and inclosures, including painting of buildings, and pruning of all orchards, trees, and shrubs growing on said premises, and embracing the replanting of fruit-trees if destroyed by the elements, to the extent of preventing the premises deteriorating in value or going to waste; and any balance of such rents, issues, and profits remaining, to invest in some good six per cent. interest-bearing security issued by Otoe county, in the state of Nebraska, or in securities issued by said county legally bearing a greater rate of interest than six per cent. per annum; and in like securities my said executors, or the survivors or survivor of them, are hereby directed to invest the said sum of...