In re Estate of Gray

• Decision Date: 24 March 1911
• Docket Number: 16,320
• Citation: 130 N.W. 746,88 Neb. 835
• Parties: IN RE ESTATE OF MARY A. GRAY. ROBERT E. NEITZEL, APPELLANT, v. HARRIET E. PURCHASE ET AL., APPELLEES
• Court: Nebraska Supreme Court

130 N.W. 746

88 Neb. 835

IN RE ESTATE OF MARY A. GRAY. ROBERT E. NEITZEL, APPELLANT, v. HARRIET E. PURCHASE ET AL., APPELLEES

No. 16,320

Supreme Court of Nebraska

March 24, 1911

APPEAL from the district court for Douglas county: GEORGE A. DAY JUDGE. Reversed.

REVERSED.

McGilton Gaines & Smith and T. A. Hollister, for appellant.

Byron G. Burbank and John C. Wharton, contra.

OPINION

ROSE J.

In this suit the will of Mary A. Gray, deceased, is contested. It was dated and witnessed at her home in Waterloo, Douglas county, October 31, 1907, and she died at the same place November 8, 1907. Robert E. Neitzel was named in the will as an executor and is the proponent. The principal legatee is Electa A. Teal, with whom testatrix lived at the time of her death. They were relatives by marriage, but not by blood. When proponent presented the will to the county court of Douglas county for probate, the heirs at law of testatrix, who are contestants, made a number of objections, among which are the following: Testatrix was not of sound mind when she pretended to execute the will. She did not sign it. She did not execute it. In undertaking to make the will she was unduly influenced by Electa A. Teal. The county court overruled all the objections and admitted the will to probate. Contestants appealed to the district court where a trial resulted in a verdict in their favor. From a judgment reciting that the instrument offered for probate is not the will of Mary A. Gray, deceased, proponent has appealed to this court. The real controversy is between the heirs at law and the principal legatee.

In substance the trial court instructed the jury: Your verdict will be that the instrument offered for probate is not the will of decedent, if you find from the evidence she did not sign it. This is assigned as error, on the ground there is no evidence to sustain such a finding. The argument of proponent on this point seems to be conclusive. The attestation clause is in due form, and it was signed by the following witnesses Helen B. Gould, a neighbor of testatrix; Anna Buman, a professional nurse who attended her during her last illness; Harvey D. Kelly, an attending physician; Robert E. Neitzel, cashier of the Bank of Waterloo. At the trial each of these persons testified to having signed the attestation clause as a subscribing witness at the time and place stated in the will, and that Mary A. Gray, in the presence of each of them, signed the will. Anna Buman further testified: "Mrs. Gray wrote her name first, and I was asked to write mine, and the rest followed me." She also testified: "We signed immediately after she signed her name;" and further: "Mrs. Gray asked me to sign the will." The testimony of all the subscribing witnesses was of like import. In addition each testified, after showing the proper qualifications, that at the time the will was signed testatrix was of sound mind. The evidence of her testamentary competency is uncontradicted. Contestants made no effort to prove that testatrix did not sign the will, except by H. B. Waldron, who was an officer of the Citizens State Bank of Waterloo. She had formerly been a depositor of his, and her last business transaction with him occurred March 2, 1906, when she transferred by check from his bank to the bank of which proponent was cashier a balance of $ 3,538.89. Waldron produced the check on the witness stand and identified the signature of the drawer as that of testatrix. In qualifying himself to express an opinion on the genuineness of her signature, he stated, in answer to a question, that he knew "the signature of Mary A. Gray in the usual transaction of her affairs." The will was then submitted to him, and he was asked whether the signature was that of Mary A. Gray, and answered: "It is not her signature." On cross-examination he was asked: "You do not say that she did not write the name that appears there?" His reply was "No, sir." He was not present when the will was signed, and his opinion, in connection with the signatures themselves, is the only proof on that subject, outside of the testimony of the subscribing witnesses. The facts showing the reasons for a difference in the appearance of the signatures on the two instruments were fully shown by uncontradicted evidence. The check was drawn March 2, 1906, when testatrix was an active woman. More than a year later she fell and was fatally injured by the breaking of a bone. She had been an invalid five months when she signed her will October 31, 1907, and she was reclining in an invalid's chair at the time. Her nurse had given her long-distance glasses, instead of her reading glasses, and for that reason she could not see well while signing her name. According to his own testimony, Waldron's last business transaction with testatrix occurred March 2, 1906, and there is nothing to indicate that he took into account the changed conditions when he expressed the opinion that the signature to the will was not hers. His testimony was applicable alone to earlier times and circumstances. When all the facts are considered, his opinion does not contradict the direct and positive testimony of the four...