In re Estate of Wilson
| Decision Date | 18 April 1907 |
| Docket Number | 14,723 |
| Citation | 111 N.W. 788,78 Neb. 758 |
| Parties | IN RE ESTATE OF ELLEN WILSON. CARRIE MOLLERING, APPELLANT, v. JAMES KINNEBURG ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Johnson county: WILLIAM H KELLIGAR, JUDGE. Affirmed.
AFFIRMED.
Billingsley & Greene, Philip F. Greene and L. C. Chapman, for appellant.
S. P Davidson and J. C. Moore, contra.
DUFFIE C. ALBERT and JACKSON, CC., concur.
Some 30 years ago John Wilson, Jr., a son of John and Ellen Wilson of Tecumseh, Nebraska, left the home of his parents on account of some misunderstanding between them. Since then, as we understand, no communication has taken place between himself and his family, and it is not known whether he is now living or dead. In 1903 John Wilson and his wife, Ellen, then nearly 80 years of age, made a trip to Dawson City, Alaska, for the purpose of finding their son. Prior to their departure they executed a joint will, by the terms of which Carrie Mollering, their granddaughter and appellant herein, James Kinneburg, their nephew, and Susan K. Sullivan, an intimate friend, were bequeathed $ 1,000 each. An annuity of $ 200 was provided for Margaret Kinneburg, a sister of Mrs. Wilson, $ 300 was set apart to be placed at interest for keeping the family burial ground in good condition, and the residue of the estate, consisting of about $ 20,000, was to be kept at interest for ten years for John Wilson, Jr., or his heirs, and, in the event of their failure to appear within that time, the executor was to convert the property into money, and, after paying himself "all the law allows in the most liberal terms," to divide it, share and share alike, between Carrie Mollering, James Kinneburg, Susan K. Sullivan, Duncan Kinneburg and Donald Black, a nephew of Mrs Wilson. The search for the lost son proved unavailing, and the parents returned home, where John Wilson, the father, died February 26, 1905. Ellen Wilson, his wife, lived at her home in Tecumseh until her death on July 22, 1905. On July 13, 1905, she suffered a stroke of paralysis, and on the evening of that day she executed the will in controversy in this case. The facts concerning the making of the will are these: The then county judge was in possession of the joint will made by the husband and wife before starting on their trip to Alaska. Mrs. Wilson sent for him to draw her will, but on account of his official position he refused to act in the matter, and she then requested him to send for J. C. Moore, who drafted and was present at the execution of the will. Mrs. Wilson could not write, and her name was attached to the will by Moore at her express request, and she, with her own hand, attested it by her mark. Moore had received from the county judge the joint will, which Mrs. Wilson wished followed, except in some details which she imparted to Mr. Moore. The will bequeaths to Margaret Kinneburg $ 12 a month during her life; to Carrie Mollering $ 1,000, and no more; to James Kinneburg $ 1,000 and all notes held by the testatrix against him for incidental debts; to Susan K. Sullivan $ 500, and no more; $ 300 was to be placed at interest for the purpose of keeping the family grave lots in good condition. The residue of her property was to be kept at interest for five years from the date of her death, at the end of which time, if her son John Wilson, Jr., or his heirs, did not appear, the executor was directed to sell and convey all her property, and, after paying himself "all the law allows in the most liberal terms," the residue thereof was to be divided, share and share alike, between James Kinneburg, Duncan Kinneburg and Donald Black, her nephews. The words "and no more" were inserted in the will after each specific bequest whereever they occurred at her express request and direction, given while the will was being read to her, article by article, previous to its execution. The probate of this will was resisted in county court by the appellant upon the grounds of mental incapacity of the testatrix and undue influence exercised over her by James Kinneburg. The county court, after a full hearing, entered an order admitting the will to probate, and, upon appeal to the district court by the contestant, the jury found in favor of the proponent, and the contestant has appealed from a judgment entered on the verdict.
The four errors first assigned relate to instructions 1, 2, 4 and 6, given by the court on request of the proponent. The objections urged against these instructions are that they failed to inform the jury that it was necessary for the testatrix to understand the nature of the act she was performing in making the will, to know and retain in mind the amount and character of her property, and who were or naturally should be the objects of her bounty, and to have a full understanding as to who and the purposes for which her bequests were made. It is true that these instructions were faulty in the respect named, but the court, in its seventh instruction, fully covered the subject, and informed the jury in explicit terms that, "if Mrs. Wilson had sufficient mental capacity to know what property she possessed, where it was, and know its value, and know and understand her obligations to her relatives, and know what she wished to do with the property, and could keep these several matters in her mind until a will was prepared to carry into effect her intended disposition of her property, then she was competent to make a will."
Exception was also taken to the refusal of the court to give the fifth instruction requested by the contestant, to the effect that, if the will in this case makes no devise or bequest of the property to the son of the testatrix, and if you believe from the evidence that it was the intention of the testatrix to will all, or a portion, of her property to her son, your verdict should be for the contestant." If we understand the position of the appellant it is this: The testatrix, by providing that the residue of her estate, after the specific bequests had been paid to the legatees, should remain at interest for five years to await the return of her son or his heirs, intended to make some provision for them in case of their return, and that, because the will did not in terms provide for the disposition of the residue in case her son or the heirs did return within the five years, it fails to fully express her intentions. It will be noticed, however, that by the terms of the will the residuary bequests are made conditional. They are to go to the residuary legatees only on condition that the lost son or his heirs do not return to Tecumseh within five years. In case of their return within the time limited, the residuary bequests become inoperative and the son or his heirs will receive their full share of the estate under the terms of the will.
The sixth instruction requested by the contestant is to the effect that, if the jury find that the will does not make provision for Carrie Mollering or for any other person that was intended by the testatrix, they should find for the contestant. This instruction was properly refused, as the will does make provision for Carrie Mollering, and a careful examination of the evidence does not disclose a failure on the part of the testatrix to provide for any party whom the testatrix had in mind or whom she wished to share in her estate. The seventh instruction, requested by the contestant and refused, is open to the same objection, there being nothing in the testimony to indicate that the testatrix had not made provision for every one whom she wished benefited.
The court admitted evidence of old friends and acquaintances of the testatrix...
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