In re Scoville's Estate
| Decision Date | 12 March 1948 |
| Docket Number | 32284. |
| Citation | 31 N.W.2d 284,149 Neb. 415 |
| Parties | In re SCOVILLE'S ESTATE. JESSUP et al. v. WENSKY. |
| Court | Nebraska Supreme Court |
1. The mental capacity of a testator is tested by the state of his mind at the time he executed his will. If a testator knows the extent and character of his property, the natural objects of his bounty and the purposes of his devises and bequests, he is mentally competent to make a will.
2. A testator may dispose of his property as he pleases. The law does not require that he recognize his relatives therein, nor does it put any obstacle in the way of the aged or infirm in making disposition of their property by will provided, only, that their mentality conforms to the accepted tests at the time of the execution of such testamentary instrument.
3. In a will contest based on objection that the testator was mentally incompetent to make a will the burden devolves on the proponent to make a prima facie case that the testator was mentally competent. The burden then devolves on the contestant to produce sufficient evidence to support a contrary finding by a jury.
4. An expert witness will be permitted to give his opinion as to mental capacity if it is predicated on a proper and sufficient foundation.
5. The opinion of a medical expert must be predicated on one or more of the following: Examination and observation of the person who is the subject of the inquiry, examination and history, or supposed facts of which there is evidence.
6. A nonexpert witness who is shown to have had a more or less extended and intimate acquaintance with a person may be permitted to state his opinion as to the mental condition of that person, if that condition becomes a subject of inquiry by giving the facts and circumstances upon which the opinion is based.
7. In order that a will may be rejected on the ground of incompetency of the testator the evidence of the objector must be sufficient to sustain a reasonable inference that the testator was incompetent to make a will.
8. The elements necessary to be established to warrant the rejection of a will on the ground of undue influence are: (1) That the testator was subject to such influence; (2) that the opportunity to exercise it existed; (3) that there was a disposition to exercise it; and (4) that the result appears to be the effect of such influence.
9. Undue influence, in order to invalidate a will, must be of such character as to destroy the free agency of the testator and substitute another person's will for his own.
10. It is the duty of trial courts to determine the issues upon which there is competent evidence and submit them, and them only, to the jury. In a will contest on the ground of mental incompetency and undue influence, if the evidence is insufficient to sustain a verdict upon either of such issues in favor of the contestants, then the trial court should withdraw both issues from the jury and direct a verdict.
Torgeson & Halcomb and Bernard O'Brien, all of Kimball, for appellant.
Kuns & Van Steenberg, of Kimball, and W. H. Kirwin, of Scottsbluff, for appellees.
Heard before SIMMONS, C. J., PAINE, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ., and KROGER, District Judge.
This is a will contest in which the validity of an instrument purporting to be the last will and testament of William A. Scoville, deceased, and a codicil thereto, is involved.
The will and codicil were admitted to probate in the county court over objections of the contestant, a daughter of the deceased. The objections to the probate of the will and codicil were that the instruments were not executed as required by law, and not properly attested; that at the time of the making and executing of the instruments the testator was not possessed of sufficient mental or physical capacity to so make and execute such instruments, by reason of old age and infirmity; and that undue influence was exerted upon the testator by his daughter, Orpha Cross, and her husband. From admission of the will and codicil to probate in the county court, the case was appealed to the district court and, by stipulation, tried on the pleadings filed in the county court. At the close of all the evidence in the district court, the proponents moved for a directed verdict, which was sustained. The district court entered judgment for the proponents and decreed the will and codicil thereto to be the last will of William A. Scoville, deceased.
Upon the overruling of the motion for new trial, the contestant appeals.
The contestant predicates error in that the district court did not submit the case to the jury on the issues presented in the objections to probate. Under this assignment of error, the question to determine is the sufficiency of the evidence to warrant submission of the case to the jury on the issue of testamentary capacity, or undue influence, or both.
In considering this question it is necessary to have in mind certain legal principles governing testamentary capacity, as follows: The mental capacity of a testator is tested by the state of his mind at the time he executed his will. If the testator knows the extent and character of his property, the natural objects of his bounty, and the purposes of his devises and bequests, he is mentally competent to make a will. See In re Estate of Laflin, 108 Neb. 298, 187 N.W. 885; In re Estate of Frazier, 131 Neb. 61, 267 N.W. 181; In re Estate of Bose, 136 Neb. 156, 285 N.W. 319; In re Estate of Inda, 146 Neb. 179, 19 N.W.2d 37; In re Estate of Winch, 84 Neb. 251, 121 N.W. 116, 18 Ann.Case. 903; In re Estate of Johnsen, ante 149 Neb. 34, 30 N.W.2d 70.
In the instant case, the proponents made a prima facie case in substance as follows: The attorney who drafted the will in question and the codicil thereto testified that he had been acquainted with the testator since October 1942, until his death; that he saw him from 10 to 12 times a year; that on the occasion of the execution of the will and codicil, the testator knew the objects of his bounty, what he was doing, and possessed testamentary capacity. This attorney also witnessed the will. A banker who was acquainted with the testator for a number of years, as a witness to the will, testified that the testator knew that he was executing a will, and at the time was of sound mind. One of the witnesses to the codicil, made and executed on November 2, 1944, testified that William A. Scoville knew who his heirs were, where his land was located, and what he was doing at the time he executed the codicil. To the same effect was the testimony of another witness to the codicil. Other details need not be set out.
If the proponent makes a prima facie case as to testamentary capacity, it then devolves upon the contestant to overcome the presumption arising therefrom after which the burden of going ahead and proving testamentary capacity by a preponderance of the evidence devolves upon the proponent. See In re Estate of Witte, 145 Neb. 295, 16 N.W.2d 203, 17 N.W.2d 477, and cases hereinbefore cited in this opinion.
It is well established in this jurisdiction that upon a motion for a directed verdict at the conclusion of all of the evidence, the motion must be treated as an admission of the truth of all of the material and relevant evidence admitted and all proper inferences to be drawn therefrom. See Curtice Co. v. Estate of Jones, 111 Neb. 166, 195 N.W. 930.
With the foregoing legal principles in mind we set forth the relevant and material evidence, not in detail but sufficiently to discern the contestant's view thereof to sustain her contention with reference to the errors complained of.
The testator, William A. Scoville, commonly referred to as W. A. Scoville, engaged in farming in Banner County, Nebraska, since about 1907. He was a cripple since early life, and in later life wore glasses and became hard of hearing. His family consisted of his wife and three daughters who were living at the time the will in question was made and executed; two daughters who predeceased the testator; also a son, W. B. Scoville, unmarried and referred to in the record as Bud, who died in August 1942; and certain grandchildren. During his lifetime, Bud Scoville lived with and resided with his parents on the home place, and for a number of years prior to his death farmed the land owned by his father and a half section which he owned, under an arrangement whereby, after deducting certain expenses, the net proceeds were divided equally between the father and son.
Our attention is directed to three wills, each made in close proximity with the other.
One is dated in September 1942, in which the testator devised the home place, consisting of 160 acres, to the contestant, and to her son, Robert Wensky, 80 acres. He bequeathed to his daughters, Jessie McArthur and Orpha Cross, each $1,000, and made certain bequests to four grandchildren. The three living daughters were made residuary legatees upon the death of the testator's wife, a trust having been set up in the will for her benefit.
On July 8, 1943, the testator made and executed a will wherein he devised to the contestant 160 acres as set forth in the will of September 1942, and to his daughter Orpha Cross, 80 acres which he had previously devised to the contestant's son, Robert Wensky; canceled the $1,000 bequest to Orpha Cross, and removed the contestant as a residuary legatee.
With reference to the devise of the home place to the contestant, there is evidence on her part that the testator told her he was making the devise because it was Bud's wish, as she was his favorite sister.
The will involved in this appeal, dated September 1, 1943, was made and executed when the testator was approximately...
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