Williams v. Miles

• Decision Date: 03 July 1903
• Citation: 96 N.W. 151,68 Neb. 479
• Parties: JOSEPH WILLIAMS ET AL., APPELLANTS, v. JOSEPH H. MILES ET AL., APPELLEES
• Court: Nebraska Supreme Court

96 N.W. 151

68 Neb. 479

JOSEPH WILLIAMS ET AL., APPELLANTS, v. JOSEPH H. MILES ET AL., APPELLEES

Supreme Court of Nebraska

July 3, 1903

Motion denied.

POUND C. BARNES and OLDHAM, CC., concur.

OPINION

POUND C.

The greater portion of the brief and of the oral argument in support of this motion is based upon a failure to distinguish between the competency and admissibility of evidence, on the one hand, and its probative force or sufficiency to establish the fact in controversy, on the other hand. We did not state that a will could be shown solely by declarations of the testator. What we did say, and now adhere to, is quite another proposition, namely, that declarations of the testator are competent evidence on an issue whether a will was made. In Clark v. Turner, 50 Neb. 290, 298 69 N.W. 843, this court had said already: "We think all the cases hold that the declarations of a testator may be received in evidence to prove the existence of a will." We quoted this language, and endeavored to make the point still more clear by saying: "As to the declarations of the testator, we must distinguish between their competency and their sufficiency, when standing alone, to prove the contents of the lost will." We perceive no ground for holding that the evidence as to execution of the alleged will made at St. Louis was incompetent. Counsel argued strenuously at the original hearing that this evidence should not have been received or considered, and the opinion sought to meet this contention.

Appellees complain of a number of statements made incidentally or arguendo in the course of the opinion. In particular they object to certain remarks which conceded the suspicious or extraordinary character of some of the circumstances urged upon us by appellant. We held that the evidence sustained the contentions of appellees on these points. But it does not appear wherein there was any impropriety in recognizing the force of the matters urged upon our attention by appellants. In justice to them we could do no less than state their position and concede the full weight of their case. This is one of the incidents of litigation. To suppress these features of the case in deference to the feelings of one party would be to deprive the other of his right to know precisely how and why he had failed. It is contended that some of the remarks in question may prejudice other or further litigation between the same parties. Here, again however, were we to remain silent entirely, the appellants would have just ground of complaint. If we merely recommended a judgment of affirmance, without stating fully the views we...