Powers v. Peters

JACKSON, C. This is an appeal from a judgment of the district court for Sarpy county admitting to probate the will of Thomas Powers, deceased. The first assignment of error relates to the jurisdiction of the district court, and is disposed of in appellant’s brief by the statement that no appeal had been taken to the district court from the county court (where the judgment [681] was favorable to the contestant) by any person entitled to appear, and in the manner provided by law. Counsel have failed to call our attention to any matter which would render the jurisdiction of the district court faulty. Judgment was entered in the county court on the 22d day of August, 1905. The proponent filed and procured to be approved an appeal bond on September 13, 1905. A transcript of the proceedings had in the county court was filed in the district court on September 22 of that year. The provisions relative to appeal in probate matters are to be found in sections 12-17, art. I, ch. 20, Comp. St. 1905. In substance they are that appeals shall be allowed from any final order, judgment or decree of the county court to the district court by any person against whom such order, judgment or decree may be made, or wh-o may be affected thereby. The party appealing is required to give bond in such sum as the court shall direct, conditioned that the appellant will prosecute such appeal to effect without unnecessary delay, and pay all debts, damages and costs that may be adjudged against him. The bond shall be filed within 30 days from the rendition of such decision, and the transcript of the proceedings in the county court is required to be transmitted to the clerk of the district court within ten days after the perfection of the appeal.' Upon the filing of such transcript in the district court, that court is possessed of the action, and shall proceed to hear and determine the same as upon appeals in civil actions. So far as we are able to determine without the aid of suggestion of counsel, the appeal conforms in all respects with the requirements of the statute and the district court was not without jurisdiction. It is next urged that the will was not executed according to the provisions of the statute. In this state wills, other than nuncupative wills, are ineffectual to pass an estate unless in writing, signed by the testator, or by some person in his presence, and by his express direction, and attested and subscribed in the presence of the testator by two or more competent witnesses. The evidence discloses [682] that the testator was unable to write and could not sign his own name, and it is the claim of the contestant that the name of the testator was not signed to the instrument by his express direction. D. J. Ryan, the proponent, ivas a witness in his OAvn behalf. There is no dispute about the fact that the will Avas written by one Burbank at the dictation of the testator. Ryan’s testimony is to the effect that after the will had been Avritten ‘ out Burbank said to the testator: “The will is now finished, Tom, and I Avant your signature to it. You may sign it.” Mr. Powers said: “I cannot sign my name. You sign for me.” It further appears from the evidence of Ryan and other witnesses that Burbank signed the name of the testator to the will, and that with the hand of the testator resting upon the pen a cross Avas made representing his mark; that the Avill Avas read over to the testator, and that lie, in the presence of tAvo attesting Avitnesses, declared that it was just Avhat he wanted, and the Avitnesses thereupon subscribed their names to the instrument ás such. Ryan Avas the principal beneficiary under the will, and it is said that he was an incompetent witness under the provisions of section 829 of the code. The testimony of the witness Ryan, however, relates to a conversation between the decedent and Burbank, in Avhich the witness took no part, and construing the provisions of section 329, supra, in Kroh v. Heins, 48 Neb. 691, it is said that one having a direct legal interest in the event of a suit was not disqualified to testify to a conversation between the deceased person and a third party. Under the rule there announced the proponent Avas a competent witness to the extent that he was examined in support of the will. There is some conflict in the evidence as to Avh ether or not the testator in fact requested Burbank to sign his name, but the testimony of the witness Ryan is corroborated by the fact, testified to by all the Avitnesses, that the testator placed his hand on the pen while his mark-was being affixed to the signature, and the question was for the jury, whose finding under the record should not be disturbed. [683] The third assignment of error relates to the complaint that there was no competent testimony to go to the jury on the testamentary capacity of the testator. This necessarily involves the question of the burden of proof where the probate of a will is contested on the ground of lack of testamentary capacity. The general rule is that all persons are presumed to he sane and to' possess sufficient mental capacity to execute all documents in the various transactions of human affairs. The business of the world is carried on upon that presumption. It prevails in all cases of conveyances executed in conformity with statutory requirements, and there seems to be no good reason for departing from it where the contest involves the validity of a will. Lack of testamentary capacity is ordinarily an affirmative defense, and if relied upon should be, as it was in this case, pleaded by the contestant. This rule, however, seems to have been modified by the statute, and it Avas so held in Seebrock v. Fedawa, 30 Neb. 424, where it is said to be the duty of the proponent, in the first instance, to offer sufficient testimony of the capacity of the testator to make out a prima facie case. Before the will was received in evidence, the attesting witnesses were called and examined on behalf of the proponent, and both testified that the testator was capable of transacting ordinary business. We are not prepared to say that, where a proponent proves the testator to have been capable of transacting ordinary business, he is required to go further in order to make a prima facie case of testamentary capacity. The testimony in support of the contestant’s case was, in our judgment, entirely insufficient to overcome the presumption arising out of the prima facie case made by the proponent. Some objections are urged against the instructions, mostly in the nature of a general complaint that they were erroneous and prejudicial. We have carefully examined the instructions, and think that they were fully as favorable to the contestant as the circumstances would justify. , ' [684] We find no prejudicial error, and recommend that the judgment be affirmed. Ames and Calkins, CC., concur. By the Court: For the reasons stated in the foregoing-opinion, the judgment of the district court is Affirmed.