Seebrock v. Fedawa
| Decision Date | 23 September 1890 |
| Citation | 46 N.W. 650,30 Neb. 424 |
| Parties | LORINDA SEEBROCK ET AL., APPELLANTS, v. MARGARET A. FEDAWA, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county. Heard below before FIELD, J.
AFFIRMED.
Lamb Ricketts & Wilson, for appellants:
Sanity of a testator is presumed. Hence contestants were entitled to open and close. (Bates v. Bates, 27 Iowa 110; Moore v. Allen, supra; Turner v. Cook, 36 Ind. 129; Herbert v. Bereier, 81 Id., 1; 1 Thompson, Trials, secs. 237, 239; Rogers v. Diamond, 13 Ark. 475; McDaniel v. Crosby, 19 Id., 533; Tobin v. Jenkins, 29 Id., 151; Edelen v. Edelen, 6 Md., 288; Brooke v. Townshend, 7 Gill [Md.], 10; Higgins v. Carlton, 28 Md. 115; Marshall v. Davies, 78 N.Y. 414.) Most of the cases cited on this question by appellee present different issues from this case, or were rendered under statutes arbitrarily fixing the procedure. The instructions as to the wife's right to influence a testator should have emphasized the fact that the will must represent his wishes at the time when it was made. (Schouler, Wills, 227, 228, 236; Turner v. Cheesman, 15 N.J.Eq. 243, 264; Gardiner v. Gardiner, 34 N.Y. 155; Dean v. Negley, 41 Pa. 312; Haydock v. Haydock, 33 N.J.Eq. 494; Marx v. McGlynn, 88 N.Y. 357; Baldwin v. Parker, 99 Mass. 79, 84; Rollwagen v. Rollwagen, 63 N.Y. 504.) Especially should the conduct of a second wife, charged with unduly influencing a testator, be scrutinized. (Cases last cited, and Mullen v. Helderman, 87 N. Car., 471; Schouler, Wills, sec. 236.) The instructions are vicious because of reiterations. (Olive v. State, 11 Neb. 30, 31; Parrish v. State, 14 Id., 60; Kerkow v. Bauer, 15 Id., 150; Kopplekom v. Huffman, 12 Id., 95; Marion v. State, 16 Id., 349.) As to the refusal of the twelfth and thirteenth instructions asked: Schouler, Wills, 226, 236; 1 Redfield, Wills, 510; Haydock v. Haydock, supra; Griffith v. Diffenderffer, 50 Md. 466; Mooney v. Olsen, 22 Kan. 69; Bates v. Bates, supra; Lynch v. Clements, 24 N.J.Eq. 431-5; Rollwagen v. Rollwagen, 63 N.Y. 504; Gay v. Gillilan, 5 S.W. 7; Harvey v. Sullens, 46 Mo. 147; Reynolds v. Adams, 90 Ill. 134. As to the exclusion of the expert testimony: In re Norman's Will, 33 N.W. [Ia.], 374; Schneider v. Manning, 12 N.E. [Ill.], 267; Kempsey v. McGinniss, 21 Mich. 123.
Pound & Burr, Billingsley & Woodard, attorneys for appellees, and N. C. Abbott, guardian ad litem:
Under a statute like ours, the executor must prove capacity of testator. As to the effect of drunkenness on testamentary capacity: Peck v. Cary, 27 N.Y. 9; Pierce v. Pierce, 38 Mich. 412; Estate of Gharky, 57 Cal. 274; Estate of Johnson, Id., 530; Schramm v. O'Connor, 98 Ill. 541; Van Wyck v. Brasher, 81 N.Y. 262. As to what constitutes testamentary capacity: Will of Silverthorn, 68 Wis. 372; Meeker v. Meeker, 75 Ill. 266; Rutherford v. Morris, 77 Id., 410; Trish v. Newell, 62 Id., 197; Carpenter v. Calvert, 83 Id., 63, 71; Chafin's Will, 32 Wis. 557; Lewis's Will, 51 Id., 101; Jackman's Will, 26 Id., 104; Will of Sarah Blakely 48 Id., 300; Kempsey v. McGinniss, 21 Mich. 140; Higgins v. Carlton, 28 Md. 115; 1 Jarman, Wills, 112; Thompson v. Kymer, 65 Pa. 368; Harvey v. Sullens, 46 Mo. 247; Bundy v. McKnight, 48 Ind. 502; Aikin v. Weckerly, 19 Mich. 482; Horn v. Pullman, 72 N.Y. 269. As to the value of expert testimony on testamentary capacity: Will of Sarah Blakely, 48 Wis. 305; Fraser v. Jennison, 3 N. W. Rep., 882; Kempsey v. McGinniss, 21 Mich. 139; Pierce v. Pierce, 38 Id., 417; Parish Will Case, 29 Barb. [N. Y.], 627; Carpenter v. Calvert, 83 Ill. 62. Bequest of another's property is not positive evidence of incapacity. (1 Jarman, Wills, 113; Schneider v. Koester, 54 Mo. 500; Snow v. Benton, 28 Ill. 306.) Nor is an unequal division of the property. The instructions are well supported by authority. (Pierce v. Pierce, 38 Mich. 412; Latham v. Udell, 38 Id., 238; Wallace v. Harris, 32 Id., 380; Harring v. Allen, 25 Id., 505; Brick v. Brick, 66 N.Y. 145; Children's Aid Society v. Loveridge, 70 Id., 387, 394; Gardiner v. Gardiner, 34 Id., 155; Monroe v. Barclay, 17 Ohio St. 302; Rabb v. Graham, 43 Ind. 1; Carpenter v. Calvert, 83 Ill. 62; Roe v. Taylor, 45 Id., 485; Pingree v. Jones, 80 Id., 177; Yoe v. McCord, 74 Id. , 33; Tawney v. Long, 76 Pa. 106; Jackman's Will, 26 Wis. 104; McKeone v. Barnes, 108 Mass. 344; 1 Jarman, Wills, 36, 131, 144; McIntire v. McConn, 28 Iowa 480; Rankin v. Rankin, 61 Mo. 295; Latham v. Schall, 25 Neb. 535; Bradford v. Vinton, 26 N.W. [Mich.], 401; Rutherford v. Morris, 77 Ill. 410.
In 1888, Margaret A. Fedawa presented to the county court of Lancaster county, for probate, the last will and testament of John A. Fedawa, deceased. Due notice was given, as required by law, to all persons interested. J. A. M. Fedawa, Milton Fedawa, and Lorinda Seebrock, children of the deceased, contested the will. N. C. Abbott, Esq., was appointed by the county court the guardian ad litem of Tilly May Fedawa, Flora Belle Fedawa, Florence Dale Fedawa, and Jay Gould Fedawa, minor children and heirs of the deceased. Upon the hearing, the county court admitted the will to probate and record. The contestants appealed from this order and judgment to the district court, where issues were formed. The contestants, in their answer, admit the execution of the will, but allege that it is invalid, for two reasons: First, because the testator, at the time of its execution, was incompetent to make a valid will, caused by long, continued, and excessive use of intoxicating liquors. Second, because its execution was procured by fraud and undue influence. At the May, 1889, term of the district court, the case was tried to a jury. A verdict was returned that the paper produced was the last will and testament of John A. Fedawa, deceased. The contestants filed a motion for a new trial, which was overruled, and a judgment was entered authorizing the probate of the will, and awarding costs against the estate. The contestants prosecute a petition in error to this court.
The testator, John A. Fedawa, died about the 1st day of February 1888, leaving a widow, the proponent of the will, and seven children, three by his first wife, the contestants, and four by the proponent. In 1861 the mother of the contestants procured a divorce from the deceased, in the state of Michigan. The contestants remained with their mother, and the deceased subsequently went into the army. He came to Lincoln, Nebraska, in 1867 or 1869, where he resided until his death. In September, 1873, he was married to the proponent in the city of Lincoln. He then had but little property. At the time of his marriage to the proponent, Mrs. Fedawa had $ 500, which shortly afterwards she gave to her husband. Subsequently he purchased the National hotel, situated on P street, in the city of Lincoln, for the stipulated price of $ 5,000, paying down $ 500, and gave a mortgage on the property for the balance. He moved into the hotel with his family, made it his home, and carried on the hotel business there until his death. He also invested in other city property, improving the same, which rapidly increased in value. Mrs. Fedawa, being industrious and economical, his accumulation of property was, in part, due to her efforts. The deceased, for several years prior to December, 1886, was a hard drinker; at times he was so dissipated that he neglected his business. When intoxicated he was ill-tempered and quarrelsome, making it necessary at times to call the police officers to care for him. In 1883 Mr. Fedawa gave a mortgage to pay for some improvements upon the property. To induce his wife to execute the mortgage he gave her a bill of sale of some furniture, and an assignment of the rents of certain other property. In March, 1886, he gave another mortgage, and to induce his wife to join with him in its execution, he assigned her the rentals on the restaurant and the barber shop for a period of five years. Mr. Fedawa then had left as income the rentals...
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