In re Hunter's Estate
| Decision Date | 27 October 1949 |
| Docket Number | 32621. |
| Citation | 39 N.W.2d 418,151 Neb. 704 |
| Parties | In re HUNTER'S ESTATE. McKIM v. ABBOTT. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. In the contest of a will on the charge that the testator was mentally incompetent to make it, the burden is on the proponent throughout the litigation to prove by the greater weight of the evidence the testamentary capacity of the testator at the time the will was made.
2. The elements of mental capacity to make a will are that the testator understands the nature of his act in making the will, the nature and extent of his property, the proposed disposition of it, and the natural objects of his bounty.
3. A defeated litigant in a will contest is not entitled to a trial de novo on appeal from the judgment of the district court. The existence of an issue of fact in such a contest is determined in this court by the sufficiency of the evidence to sustain a verdict of the jury.
4. In testing the sufficiency of evidence to support the verdict it will be considered in the light most favorable to the successful party, any controverted fact will be resolved in his favor, and he will be given the advantage of any inferences that can reasonably be deduced therefrom.
5. If an instruction is given, which it is claimed did not fully state the rule of law upon the subject involved therein, but did not misstate any rule to be applied, the attention of the court should be called to the claimed omission by an instruction containing the alleged omission otherwise there can be no ground for complaint.
6. A presumption is not evidence, but may take the place thereof until evidence is produced to rebut it, and when evidence sufficient in quality appears to rebut the presumption, it disappears, and thereafter the determination of the issue depends upon the evidence, with the requirement as in all civil actions that the party having the affirmative of the issue involved in order to succeed shall sustain his position by a preponderance of the evidence.
Charles W. Phillips, Lincoln, for appellant.
Chambers Holland & Groth, Lincoln, Roy V. Nelson, Hiawatha, Kan for appellee.
Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.
This is an appeal from the judgment denying probate of an instrument dated October 17, 1947, as the will of Carrie H. Hunter, deceased.
Carrie H. Hunter was a resident of the city of Lincoln. She died on the 19th day of October 1947, and left an instrument purporting to be her will in which Elmore Y. Abbott, a nephew, was named as sole beneficiary. Proceedings in the county court resulted in its probate. The contestant, Bertha P. McKim, appellee, appealed. The proponent, Elmore Y. Abbott, is the appellant. The ground of the contest in the district court was that the deceased at the time of the execution of the document in question did not have testamentary capacity. The trial resulted in a verdict adverse to the propondent and a judgment denying probate. The motion of proponent for a new trial was overruled.
Appellant assigns as error the submission to the jury of the issue of the mental competency of the testatrix to make a will. The contest of a will on the charge that the testator was mentally incompetent to make a will imposes the burden upon the proponent throughout the litigation to prove by the greater weight of the evidence the testamentary capacity of the testator at the time it was executed. The burden of proof does not shift, but the burden of going ahead, as some authorities state it, does. The proponent must make, at least, a prima facie case as to this requirement. The burden is then on the contestant to introduce sufficient evidence to support a finding by a jury that the testator did not have testamentary capacity, and failing so to do, there is no question to submit to a jury in such a case. In re Estate of Witte, 145 Neb. 295, 16 N.W.2d 203, 17 N.W.2d 477; In re Estate of Johnsen, 149 Neb. 34, 30 N.W.2d 70; In re Estate of Kaiser, 150 Neb. 295, 34 N.W.2d 366.
Proponent introduced all his evidence in making his case in chief. He made much more than a prima facie case and produced sufficient evidence to have sustained a verdict if one had been returned in his favor that the instrument in question was the will of the deceased. In this situation a statement of the evidence of the proponent is not required.
A defeated litigant in a will contest is not entitled to a trial de novo on appeal from the judgment of the district court. An issue of fact in such a contest is determined in this court by the sufficiency of the evidence to sustain the verdict of the jury, and in testing the sufficiency thereof to support the verdict it will be considered in the light most favorable to the successful party, any controverted fact will be resolved in his favor, and he will be given the advantage of any inferences that can reasonably be deduced therefrom. In re Estate of Johnsen, supra; In re Estate of Witte, supra; In re Estate of Kaiser, supra; Fimple v. Archer Ballroom Co., 150 Neb. 681, 35 N.W.2d 680.
The elements of mental competency to make a will are that the testator understands the nature of his act in making the will, the nature and extent of his property, the proposed disposition of it, and the natural objects of his bounty. In re Estate of Johnsen, supra. It devolved upon the contestant to negative one or more of these to justify a conclusion that the testatrix did not have testamentary capacity.
The record contains evidence tending to establish the following relative to the issue of mental capacity of the testatrix at the time the will was executed. When she signed the will on October 17, 1947, she was 78 years of age, and died on the morning of the second day thereafter. She was seriously ill in the hospital as early as September 30, 1947, suffering from nausea and shingles, and was 'most uncomfortable.' After she had been in the hospital for about two weeks she was confused and thought she was in the home of a nephew. She was semi-comatose at times. During the week before her death she developed edema, and puffiness of her hands and feet and around her eyes. She had lucid and semi-comatose intervals an impediment in her speech caused by the edema, and her mouth was very dry most of the time because she had difficulty in retaining fluids. Before the will was made she at times talked incoherently, was confused, thought she was in the home of her sister, on occasions was 'out of her head,' would not respond, circulation was poor, moaned but did not move, did not seem to have strength to move, her eyes were 'coated with film,' was in such condition that she could not turn herself in bed, and had been bedfast for at least 20 days before her death. Her illness was serious enough that the nurse thought many times while she was with the testatrix that she was going to die. At 2:45 a. m., October 18, only hours after the will in question was made, the testatrix had a violent convulsion of about 30 seconds' duration, frothed from the mouth, lost consciousness, and had alternately sudden extreme tension and relaxation of muscles at repeated intervals. Later she had marked swelling of the eyeballs, the feet, and hands, her circulation was bad, and she died less than 48 hours after the will was executed. Mr. Chapman, who prepared the will, observed that she was physically ill, had difficulty in talking, was difficult to understand, could...
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