In re Estate of Normand

• Decision Date: 16 March 1911
• Docket Number: 16,348
• Citation: 130 N.W. 571,88 Neb. 767
• Parties: IN RE ESTATE OF MARGARET NORMAND. JAMES F. NORMAND ET AL., APPELLANTS, v. LEVI NORMAND, APPELLEE
• Court: Nebraska Supreme Court

130 N.W. 571

88 Neb. 767

IN RE ESTATE OF MARGARET NORMAND. JAMES F. NORMAND ET AL., APPELLANTS, v. LEVI NORMAND, APPELLEE

No. 16,348

Supreme Court of Nebraska

March 16, 1911

APPEAL from the district court for OTOE county: HARVEY D. TRAVIS JUDGE. Affirmed.

AFFIRMED.

John C Watson, for appellants.

D. W Livingston, contra.

SEDGWICK, J. LETTON, J., not sitting.

OPINION

SEDGWICK, J.

The will of Margaret Normand, deceased, was entered for probate in the county court of Otoe county, and from an order of that court admitting it to probate an appeal was taken to the district court for that county. Upon trial in that court a judgment was entered admitting the will to probate, from which judgment the contestants have appealed.

1. The first question presented is one of practice. In county court the contestants filed an objection to the probate of the will. When the case was docketed in the district court, no new pleadings were filed by either party, and an order was entered upon the journal that "this cause is set for trial on the original pleadings, by agreement of the parties." A few days afterwards the contestants filed a motion in the district court "that a judgment absolute be given by the court on the pleadings in favor of the contestants and against the proponent, because there is no reply filed to the answer and objection of the contestants." This motion was overruled, and the contestants excepted to the ruling thereon. A jury was impaneled, and the case proceeded to trial. The contestants thereupon objected to the introduction of any testimony on the part of the proponent, "because the allegations in the answer are not denied or controverted." This objection was overruled and an exception entered. The contestants now insist that they were entitled to a judgment denying the probate of the will, because the allegations of their answer, not being denied by reply, were admitted.

When an action is appealed from a justice of the peace or from the county court to the district court, it is to be tried de novo in the district court, and this rule applies to appeals in probate proceedings. Prante v. Lompe, 77 Neb. 377, 109 N.W. 496. In such cases the plaintiff may reply to an answer which alleges new matter in defense. Chicago, B. & Q. R. Co. v. Gustin, 35 Neb. 86, 52 N.W. 844. This is the usual practice, and no doubt the trial court may require it to be followed in all ordinary cases. The objection filed by the contestants in the probate court and which was treated by all parties as the answer in the district court, alleges six grounds of objection. "First. Said instrument is not executed as required by law. Second. Said instrument is not properly attested. Third. Said Margaret Normand, at the time alleged in said instrument, was not possessed of sufficient mental capacity to make a will, by reason of old age and ill health. Fourth. Said instrument was executed by said Margaret Normand by reason of improper and undue influence exerted upon her by Levi Normand, who is a devisee under said will, and said will is not the will of Margaret Normand, but of said Levi Normand. Fifth. The proceeding to probate said will was not published as required by law. Sixth. Said instrument is drawn contrary to law." The proponent by offering the will for probate necessarily alleges that the instrument is executed as required by law; is properly attested; and that the testator was of sufficient capacity to make a will. It will be seen that all of the objections entered to the probate are merely denials of the plaintiffs' allegations, unless it be the fourth objection. The allegation in the fourth objection, that the instrument was executed "by reason of improper and undue influence exerted upon her by Levi Normand," is the only affirmative matter contained in the so-called answer. We think under these conditions it is not necessary to determine whether this allegation is a mere conclusion of law, or is a sufficient allegation of fact to constitute a defense against the probate of the will. It seems clear that, the parties having agreed to try the case upon the issue as presented in the lower court and certified to the district court, they cannot be heard now to object to that procedure. The probate court, upon such pleadings and without objection by either party, would properly have heard the evidence produced by both parties, and after appeal to ...