Johnson v. Millard

• Decision Date: 20 October 1923
• Docket Number: 22357
• Parties: NELLIE M. JOHNSON, APPELLANT, v. ALFRED MILLARD ET AL., APPELLEES
• Court: Nebraska Supreme Court

195 N.W. 485

110 Neb. 830

NELLIE M. JOHNSON, APPELLANT, v. ALFRED MILLARD ET AL., APPELLEES

No. 22357

Supreme Court of Nebraska

October 20, 1923

APPEAL from the district court for Douglas county: WILLIS G. SEARS JUDGE. Affirmed.

AFFIRMED.

Morsman Maxwell & Haggart, for appellant.

William F. Gurley and Isaac E. Congdon, contra.

Heard before MORRISSEY, C. J., LETTON, ROSE and DAY, JJ., BUTTON and SHEPHERD, District Judges.

OPINION

PER CURIAM.

This case was submitted to the court upon the printed briefs and without argument at a prior sitting of the court. It was ordered resubmitted and that an oral argument be made. The following opinion was prepared, after the former submission, by Button, district judge. The court being satisfied that it makes a proper disposition of the case adopts it. The opinion follows:

Nellie M. Johnson is the niece of Dr. George L. Miller, deceased. She brings this action to set aside certain conveyances of real estate made by Dr. Miller during his lifetime. The ground is the incompetency and insanity of Dr. Miller at the time of such conveyances.

We are confronted with a voluminous record, a mass of evidence and exhaustive written arguments and briefs, but have not been favored with oral arguments.

A number of the assignments of error have to do with the rules governing the admissibility of evidence; and much of the discussion in the briefs has to do with these rules. The presumption is that the trial court based its decision on competent testimony only. If there is sufficient competent evidence to convince this court after a trial de novo that the decision of the trial court is the decision that should be rendered on the facts it will be affirmed.

There is but one question before us, then, as we see it, and this is: Did Dr. Miller have sufficient mental capacity to know and appreciate what disposition he wished to make of his property at the time he conveyed it?

To answer the above question intelligently we must examine the evidence with care. We do not feel justified in quoting from this mass of evidence to any considerable extent, as this opinion will become too voluminous. When the mental capacity of Dr. Miller has been established, or the want of it has been shown, nothing will be accomplished by pursuing this mass of evidence further.

Dr. George L. Miller, an old man, conveyed the parcel of land involved in this action to one Frances M. Briggs on March 11, 1903. Shortly thereafter these parties were married. At the time of this conveyance the First National Bank of Omaha held a mortgage against this land for about all it was worth. On March 6, 1906, Mrs. Frances Briggs Miller with her husband, Dr. Miller, transferred this parcel of land to Charles T. Kountze and Luther L. Kountze, officers of the above bank, in trust. At this time the indebtedness to the bank had not been paid. Later, however, the indebtedness was paid. At the same time another parcel of ground was conveyed, but it is not involved in this action. Dr. Miller also made a will, but it was never probated. Mrs. Miller died before her husband. There seems to be no competent evidence that the doctor was over-reached or defrauded by any of the parties. It seems, therefore, that the question propounded above presents the only problem for solution.

The trust provides in substance as follows:

That the trustees should handle said land and make whatever improvements were necessary to cause it to yield an income, to collect the income and pay the mortgage, and also pay to Miller and his wife what was necessary for their support and care, and upon the death of Miller and wife to convey the property to Alfred Millard, Charles T. Kountze, and Luther L. Kountze with the income and accumulations in trust and to be conveyed by them, as soon as practicable, to some society or corporation having its principal place of business and field of operations in the city of Omaha, and having for its object the prevention of cruelty to animals or the care of and prevention of cruelties to children and animals, and if there should be no such society in existence, the said trustees should cause one to be organized for the purpose. This property was to be conveyed to such society for the purpose of producing an income to be used as above and to be known as "The George L. Miller Memorial."

The conveyance from Miller to Miss Briggs and the conveyance to the above trustees by Mrs. Miller and husband are the conveyances claimed to have been void because Miller was insane at the time. There is no claim that Mrs. Miller was insane.

We will first examine the evidence tending to establish sanity, immediately before, at the time of the conveyance, and during the time intervening between March 11, 1903, and March 6, 1906, and afterwards.

Dr. Miller owned 480 acres of land which he platted into "Seymour Park." On this land he erected a home for himself and family. On this land was sunk an artesian well. From this well there developed Seymour Lake. This lake became valuable for harvesting ice. This situation was brought about by the industry and business sagacity of Dr. Miller, and from this time on for some time we find him making leases with reference to the sale and purchase of ice, bargaining with the Cudahy Packing Company, dealing with the banks, and others, and doing his own business in a seemingly intelligent and sane manner. During the hard time of 1893, Dr. Miller, in common with many others, suffered financial reverses and was compelled to mortgage his land. In the course of time this property, from the income from the ice and otherwise, brought about its own redemption from the mortgages. This was a justification for Dr. Miller's business sagacity and foresight. From 1902 to 1909 Dr. Miller transacted a great deal of business. In 1903 he married. In 1906 he entered into the agreement heretofore mentioned. And for many years he dealt in various ways with many people. In September, 1900, Dr. Miller suffered a mental collapse. From this sickness he recovered so that during the years up to 1909 he transacted his business as above stated. It becomes material to know what some of the people with whom he dealt thought of Dr. Miller's sanity during the years 1903 to 1906, inclusive, the period involved herein.

John H Bexton states that from 1901 to 1908 Dr. Miller dealt with the bank of which Bexton was cashier continually. Bexton heard his conversations and knew of his business transactions, and Bexton says he was sane during this period. Charles Kountze...