In re Estate of Ayers

• Citation: 120 N.W. 491,84 Neb. 16
• Decision Date: 20 March 1909
• Docket Number: 15,526
• Parties: IN RE ESTATE OF ROBERT AYERS. ARTHUR C. DAILEY ET AL., APPELLEES, v. CHARLES TREADWELL ET AL., APPELLANTS
• Court: Nebraska Supreme Court

120 N.W. 491

84 Neb. 16

IN RE ESTATE OF ROBERT AYERS. ARTHUR C. DAILEY ET AL., APPELLEES, v. CHARLES TREADWELL ET AL., APPELLANTS

No. 15,526

Supreme Court of Nebraska

March 20, 1909

APPEAL from the district court for Clay county: ED L. ADAMS, JUDGE. Affirmed.

AFFIRMED.

Charles H. Sloan, Paul E. Boslaugh and John A. Moore, for appellants.

Thomas H. Matters, contra.

CALKINS C. DUFFIE and GOOD, CC., concur. EPPERSON, C., not sitting.

OPINION

CALKINS, C.

Robert Ayers died at Omaha, Nebraska, August 1, 1906, a widower and without issue, leaving him surviving his sole heirs at law Charles Treadwell and Ezekiel Ayers, brothers, and Kate Addis and Fanny Inglis, sisters. He died seized of about $ 1,000 in personal property and an 80-acre farm in Clay county, where he had resided for many years. In 1892 he executed and deposited with the county judge of Clay county an instrument purporting to be his last will, which was in the words and figures following:

"I Robert Ayers, of Clay county, Nebraska, being of sound mind memory and understanding do hereby make my last will and testament in manner and form following:

"First. If my beloved wife, Kate E. Ayers, be living at the time of my death, I give, devise and bequeath to her all the real and personal property belonging to me wherever the same may be at the time of my death.

"Second. Should my wife, Kate E. Ayers, die previous to my death or before the proving of this will, it is my desire that after paying all just debts by me owing, that my property both personal and real be given to my niece, Gussie M. Inglis, daughter of my sister Fannie, wife of Alix Inglis of Victoria, Knox county, Ill.

"In Witness Whereof, I, Robert Ayers, the testator, have to this my last will and testament set my hand and seal this 22d day of February, 1892.

"ROBERT AYERS. (Seal.)

"Signed, sealed, published and declared by the above named Robert Ayers as and for his last will and testament in the presence of us who have hereunto subscribed our names at his request as witnesses hereto in the presence of the said testator and of each other.

"L. S. BACKUS, of Harvard, Nebraska.

"EZRA BROWN, of Harvard, Nebraska."

The probate of this will was contested by the sister Kate Addis and the brothers Charles Treadwell and Ezekiel Ayers. The county court overruled their objections to the will and admitted it to probate, and, an appeal being taken to the district court, a trial was had to the judge without a jury. Upon his finding in favor of the proponents the will was admitted to probate, and from this judgment the contestants appeal.

1. The first objection of the contestants is that the will was not properly executed and attested. From the copy above given it appears that there was an attestation clause thereto attached, which certified that the will was signed, sealed, published and declared by the testator as and for his last will and testament in the presence of the witnesses, who subscribed their names at his request, in the presence of the testator and of each other. It appears that the witness Backus died before the proving of the will; but the other witness, Ezra Brown, was present at the trial and testified that he acted as draftsman of the will. Upon presentation and identification of the paper by him, he having testified that he recognized the same, the following examination was had: "Q. In whose hand writing is that paper except the signatures that are attached? A. I wrote the paper. Q. At whose request? A. At Mr. Ayers request. Q. Did you see him sign it? A. I did. Q. And did he see you affix your signature there? A. Yes; and Mr. Backus also. Q. That was done at his request? A. That was done at his request and in his presence. "

The contestants admit that in other jurisdictions and in a dictum by this court the rule is stated to be that, where the attestation clause recites all the requirements of due execution and attestation, it will be presumed prima facie that all the requirements existed. It is, however, insisted that this rule would be in violation of section 141, ch. 23, Comp. St. 1907, which provides that, in case there shall be no contest to the probate of a will, the county court may grant probate thereof on the testimony of one of the subscribing witnesses only, "if such a witness shall testify that such will was executed in all the particulars as required in this chapter, and that the testator was of a sound mind at the time of the execution thereof." We do not think it necessary to determine this question. The testimony of the surviving witness we think established each and all of the facts recited in the attestation clause.

The contestants argued that the testimony of Mr. Brown that Backus signed at Mr. Ayers request is to be disregarded as being a conclusion of the witness. There was no objection to the form of the question which elicited this response, nor to the answer, at the time, and we do not understand the rule to be that the court may disregard testimony when it is received in that form without objection.

2. It is said that the evidence fails to establish a publication of the will, and it is true that we do not find any statement in the testimony that the testator declared he published the will. Publication, as the term is used in the law of wills, is the act or acts of the party by which he manifests that it is his intention to give effect to the paper as his last will and testament, and any communication indicating to witnesses that the testator intends to give effect to a paper as his will by word, sign, motion or conduct is sufficient in law to constitute a publication. In re Claflin's Will, 73 Vt. 129, 87 Am. St. Rep. 693, 50 A. 815. In this case the evidence shows that the witnesses signed the will at the request of the testator, and that the draftsman of the will, at the direction of the testator, placed the same in an envelope addressed to the county judge, and that the same was afterwards found in the office of the county judge in that envelope, bearing the marks of the post office, showing that it had been sent through the mail. We think the request of the testator to the witnesses to sign and the steps taken by him to have the will deposited with the county judge sufficiently show his intention to give effect to the paper as his will.

3. It is urged that the deceased was not a resident nor inhabitant of Clay county at the time of his death, and that the county court of Clay county had no jurisdiction to probate the will. It appears that the deceased moved to Clay county from Illinois when he was about 26 years old; that he purchased land which he continued to farm either by himself or tenants up to the time of his death; that about three or four months before his death he went to Omaha and lived in a boarding house, which he left to go to the hospital. He had a trunk and a bicycle with him. The landlady of his boarding house, being called as a witness, testified as follows: "Q. While living at your place did he speak of that as his home? A. Yes. Q. Did he during that time state to you what and where his home was? A. Yes; Clay county. Q. No; I mean while he was with you. A. Well, no; he didn't say. He lived in Omaha and stayed here, and he called my house his home. Q. While he was there? A. Well, that was just about after he had been there a month. Q. And did he speak of that as his home only once? A. Just once that I talked to him." Similar testimony was given by the landlady's assistant, but we do not think it sufficient to establish any intention to permanently abandon his residence in Clay county. It appears that he left his money on deposit in Clay county, and it does not appear that he moved therefrom any of his property except his trunk and bicycle. The evidence clearly supports a finding that he was a resident of Clay county.

4. The principal contention of the contestants, and one argued with great earnestness and insistence, is that there was not sufficient evidence to sustain the finding of the district court as to the testamentary capacity of the deceased. It appears that Robert Ayers was born in Illinois, and lived there until about 26 years of age, when he moved, with his wife, whom he had married in Illinois, to Clay county, Nebraska, where he purchased a farm. He displayed mental peculiarities as a boy. When about 20 years of age he was committed to an asylum for the insane in Illinois. He was released from this confinement, and returned to his father's home, where he remained until June, 1879, when he was again taken to an asylum, from which he was released in about a year. He returned again to his father's, married, and soon after moved to Nebraska. In January, 1888, he was sent to the Nebraska hospital for the insane, from which he was paroled September 24, 1890, and finally discharged January 28, 1891. On March 26, 1892, he was again sent to...