In re Estate of Kane

• Decision Date: 30 December 1922
• Docket Number: 22162
• Citation: 191 N.W. 680,109 Neb. 449
• Parties: IN RE ESTATE OF LAURA V. KANE. v. FRED A. KANE ET AL., APPELLANTS MAE M. HOLCOMB, APPELLEE,
• Court: Nebraska Supreme Court

191 N.W. 680

109 Neb. 449

IN RE ESTATE OF LAURA V. KANE.

MAE M. HOLCOMB, APPELLEE, v. FRED A. KANE ET AL., APPELLANTS

No. 22162

Supreme Court of Nebraska

December 30, 1922

APPEAL from the district court for Scotts Bluff county: RALPH W HOBART, JUDGE. Affirmed.

AFFIRMED.

L. L Raymond and Morrow & Morrow, for appellants.

Mothersead & York, contra.

Heard before MORRISSEY, C. J., LETTON, ROSE, DEAN, FLANSBURG and DAY, JJ., SHEPHERD, District Judge.

OPINION

ROSE, J.

This proceeding was begun in the county court of Scotts Bluff county to probate what is alleged to be the lost will of Laura V. Kane, deceased. The lost instrument offered for probate was dated January, 1914. Testatrix, a widow, died January 11, 1919, seised of 80 acres of land in Scotts Bluff county. Three children survive and all are over 30 years of age. They are Dorothy Cordelia Leek and Mae M. Holcomb, married daughters, and Fred A. Kane, son. According to the lost will the mother devised 50 acres of her land to Mae and the remaining 30 acres in equal shares to Dorothy and Fred. Mae is proponent and Fred and Dorothy are contestants. By objection and answer the execution of the purported lost will is denied. It is also alleged by contestants that the will offered for probate, if executed, was intentionally revoked or destroyed by their mother. The county court dismissed the proceeding, and proponent appealed to the district court, where there was a trial without a jury, resulting in a decree establishing and probating the lost will. Contestants have appealed.

The principal question presented is the competency of testimony by Mae and her husband. They were permitted, over the objections of contestants, to testify to conversations between themselves and Laura V. Kane in regard to the execution and contents of her will. If there is a will, Mae, the proponent, is a devisee. If there is no will, she is an heir at law. It is strenuously argued that the district court, in overruling the objections, disregarded the statutory rule declaring:

"No person having a direct legal interest in the result of any civil action or proceeding, when the adverse party is the representative of a deceased person, shall be permitted to testify to any transaction or conversation had between the deceased person and the witness." Comp. St. 1922, sec. 8836.

This statute does not disqualify Mae, though she is the proponent and a devisee, or an heir at law, as a witness in the contest of the will or destroy her testimony as to conversations between her and her mother. The question is not an open one in this state. The rule and the reasons on which it is based have been stated in several opinions. The proceeding to probate a will and the contest thereof do not diminish or increase the estate. The issue to be determined is the making of the will. Who succeeds to the property rights of decedent? In McCoy v. Conrad, 64 Neb. 150, the principle was announced in the following language:

"In a contested proceeding for the probate of a will, the heirs at law of the alleged testator are not disqualified by the statute as witnesses to transactions and conversations with the deceased."

This rule may apply to devisees and to proponents. In a later discussion it was said:

"The heir is not in all litigation concerning the estate of the deceased the representative of the deceased within the meaning of our statute. It is only when he stands in place of the deceased so as to uphold a right that the deceased had at the time of his death that he may be said to represent the deceased. When the right of the deceased at the time of his death is not in controversy, but the question is to whom does that right descend, the heir, although a party to the...