McClary v. Stull

• Decision Date: 05 March 1895
• Citation: 62 N.W. 501,44 Neb. 175
• Parties: MCCLARY ET AL. v. STULL ET AL.
• Court: Nebraska Supreme Court

44 Neb. 175

62 N.W. 501

MCCLARY ET AL.

v.STULL ET AL.

Supreme Court of Nebraska.

March 5, 1895.

Syllabus by the Court.

1. It is no objection to the probate of a will containing one or more valid bequests that a particular bequest or devise is invalid on the ground that the beneficiary thereof is incapable of taking or holding the property sought to be thereby disposed of.

2. The will in such case should be proved for the purpose of giving effect to the valid provisions thereof.

3. It is not reversible error to receive a general verdict or finding, leaving unanswered special interrogatories submitted to the jury, when, if answered in the form most favorable to the complaining party, they would not have been inconsistent with the general verdict.

4. Mere eccentricity of belief, including a belief in spiritualism so called, is not conclusive evidence of a want of testamentary capacity, provided the testator is not affected with any delusion respecting matters of fact connected with the making of the will or the objects of his bounty.

5. Where the testator's mind is not so controlled by his peculiar views as to prevent the exercise of a rational judgment touching the disposition of his property, the will should be sustained, however absurd or irrational such views may be.

6. Where the testator is not claimed to have been generally insane, but controlled by insane notions with respect to a particular subject, the question to be determined is whether he was the victim of such delusions as controlled his actions, and rendered him insensible to the ties of blood and kindred.

7. The recalling of juries for instructions is so far within the discretion of the trial court as not of itself to present a subject for review.

8. The charge of the court should be confined to questions in issue, although a judgment will not be reversed on account of an instruction directed to a matter foreign to the issues, which merely imposes upon the successful party an additional and unnecessary burden, in no wise prejudicial to the party complaining.

9. Courts of equity, in dealing with funds brought directly within their control, frequently order payment therefrom of fees to counsel of the respective parties. But that practice rests upon the theory that the proceeding is primarily for the purpose of securing the direction of the court with respect to such fund, and therefore alike beneficial to all parties.

10. Fees to counsel are not in such cases allowed as a matter of right, but are within the discretion of the court, and will be denied, unless there appears to be reasonable ground for the controversy by the party applying therefor.

11. On an application for attorney's fees by the contestants who had unsuccessfully resisted the probate of a will, one of them made affidavit to an agreement in writing with their attorneys whereby the latter were to prosecute the contest for 20 per cent. of the amount realized out of the estate. In answer they denied the existence of a written contract, without disclosing their agreement with contestants. Held, that the application should be denied.

12. Evidence examined, and held to sustain the verdict establishing the will of the testatrix.

Error to district court, Nemaha county; Bush, Judge.

John S. Stull and Frank E. Johnson offered the will of Elizabeth C. Handley, deceased, for probate. From an order probating the same in the county court, Miranda J. McClary and others appeal to the district court. Judgment was rendered for the proponents, and contestants bring error. Affirmed.A. J. Burnham and W. C. Sloan, for plaintiffs in error.

Jno. S. Stull and J. H. Broady, for defendants in error.

POST, J.

This was a proceeding for the proof of the will of Elizabeth C. Handley, deceased, and originated in the county court of Nemaha county. The defendants in error, John S. Stull and Frank E. Johnson, who for convenience will be referred to as the proponents, are named as executors of the will, and the plaintiffs in error, who will be referred to as contestants, are the heirs at law of the deceased. The proceedings in the county court are not involved in the present controversy, and will not, therefore, be noticed further in this opinion. The trial in district court, as will be inferred from what has been said, resulted in a verdict and judgment establishing the alleged will, and which the contestants have removed into this court for review upon allegations of error. For a more perfect understanding of the issues involved, it is deemed proper to set out the will at length, which is as follows:

“In the name of the benevolent Father of All, I, Elizabeth C. Handley, being of sound mind and memory, and in fair health, realizing the uncertainty of this life, do hereby make and publish my last will and testament.

Item First. It is my will and desire that after my death I be buried by the side of my late husband, in Walnut Grove Cemetery, at the village of Brownville, in Nemaha county, state of Nebraska; and that my executors hereinafter named complete the record upon the monument now erected on the burial lot, and to place at my grave suitable head and foot slabs.

Item Second. I give, grant, and bequeath unto my beloved nephew John C. Ward all of my books of every description, my gold watch and chain, and all of my other jewelry, of every description, and such of my family pictures as he may desire.

Item Third. I do hereby give, grant, and bequeath unto the Home of the Friendless, now located at the city of Lincoln, in the state of Nebraska, my piano, and all of my china and table ware of every description, to be owned and kept and used by said home forever.

Item Fourth. I hereby give, grant, and bequeath unto the said Home of the Friendless all of my household and kitchen furniture of every description; and it is my wish that the officers of said home shall have the privilege of using said furniture, or any part thereof, in said home, or to dispose of the same, or any part thereof, and to convert the same into money, and to use said money in such manner as they may see fit for the benefit of the inmates of said house.

Item Fifth. It is my desire and command that my executors hereinafter named shall collect all of my property, both personal and real, bonds, stocks, credits, goods, chattels, choses in action, and everything of value, except such as are herein bequeathed as above set forth, and to sell the same either at public or private sale, as may seem to them to be most advantageous, and to convert the same into money as soon after my death as the same can be done without sacrifice, and out of the proceeds of said sale to first pay all of my just debts, funeral expenses, and expense of my last sickness, and the expenses of administration, and all the moneys remaining after carrying out the provisions of this will, as above set forth, I hereby give, grant, and bequeath unto the said Home of the Friendless, now located at the city of Lincoln, Nebraska. In this my last will and testament I well remember all of my relations, both near and remote, and, as I am under no particular obligations to them or either of them, and desiring that my estate may be used for the very unfortunate class of persons who have a right to be admitted into said Home of the Friendless, I feel it to be my sacred duty to give all that I have left in this world to said home for the benefit of the poor unfortunate people who are cared for by this home, the grandest institution in the state of Nebraska.

Item Sixth. I do hereby nominate and appoint Frank E. Johnson, of Lincoln, Nebraska; Harry D. Clark, of Hot Springs, South Dakota; and John S. Stull, of Auburn, Nebraska,--or the survivors of them, in case of the death of either of them,--executors of this my last will and testament, hereby authorizing and empowering them to adjust, release, and discharge, in such manner as they may deem proper, the claims, debts, and demands due me. I hereby authorize, direct, and empower them to sell, at public or private sale, as may seem to them to be the most advantageous, all my real and personal estate, and to execute and acknowledge and to deliver to the purchaser of the same proper deeds in fee simple. I also further authorize and direct my said executors to reduce and convert into money all of my estate except such as is mentioned in items second, third, and fourth, and to first pay the debts and demands mentioned in items first and fifth, and then to pay the entire balance left to the said Home of the Friendless. I do hereby revoke all former wills by me at any time made. In testimony whereof I have hereunto set my hand and seal this 26th day of January, in the year of our Lord one thousand eight hundred and ninety-two. Elizabeth C. Handley. Signed and acknowledged by said Elizabeth C. Handley as her last will and testament in our presence, and in the presence of each other, and signed by us in her presence and at her request; and we do hereby certify that at this time the said Elizabeth C. Handley is of sound and disposing memory. Done at Auburn, Nebraska, this twenty-sixth day of January, A. D. 1892. Jarvis S. Church, Auburn, Neb. J. L. Carson, Jr., Auburn, Neb. R. C. Boyd, Auburn, Neb.”

The contestants, who, with the exception of John C. Ward, are the brothers and sisters of the deceased, joined in resisting the probate of the will on the following, among other, grounds: (1) That the deceased was not of sound and disposing mind at the time in question, and that said alleged will is the result of an insane delusion on her part, by reason of which she was altogether incapable of disposing of her property, and is therefore utterly void. (2) Said will is void for the reason that the beneficiaries thereunder are uncertain, and cannot be ascertained. (3) The Home of the Friendless named in said will is without legal capacity to take or hold the property thereby sought to be disposed of. John C. Ward, who is the sole surviving heir of...