DocketNumber: No. 27197
Citation Numbers: 120 Neb. 235
Judges: Day, Dean, Eberly, Good, Goss, Rose, Thompson
Filed Date: 7/17/1930
Status: Precedential
Modified Date: 9/9/2022
The following opinion on motion for rehearing was filed January 2, 1931. Former judgment of affirmance adhered to; second paragraph of opinion vacated.
While pending on motion for rehearing, this cause has been reargued on its merits and resubmitted for further consideration. For a full statement of the issues and relevant facts, the reader is referred to the former opinion, ante, p. 235.
The entire record has been carefully reexamined. We are satisfied with our former holding, concerning the evidence with respect to the mental capacity of testator, and that that question was properly submitted to the jury. The only questions requiring further consideration are the-correctness of the rule announced in the second paragraph of the syllabus of our former opinion, and whether the court erred in submitting to the jury the question of undue influence. If, from the facts and circumstances proved and the inferences properly deducible therefrom, reasonable minds might differ as to whether undue influence had been exercised upon testator and produced or caused the-
The facts that testator makes a will, giving the major part of his estate to strangers to his blood, and that the beneficiaries under his will had opportunity to 'exercise undue influence in procuring the making of the will, will not, alone, justify an inference that such undue influence was exercised. But, where the testator is aged, infirm, suffering from arteriosclerosis in an advanced stage, confined in a hospital suffering from pneumonia, at times delirious, and at other times in a semicomatose condition, and where there is evidence tending to show that he reposed great confidence and trust in the beneficiaries of his will; that he accepted their advice on other occasions and deferred to their wishes; and that the beneficiaries had taken the testator from the immediate presence of his relatives under circumstances from which it might be inferred that they did not desire him to talk to and be with such relatives; and where there is evidence also tending to show that the beneficiaries visited him very frequently in the hospital and were with him most of the day on which the will was executed; that the attorney who drew the will had been the attorney of the beneficiaries; that the beneficiaries and their attorney had conferred together about the will and the making thereof; that the attorney drafting the will had procured, without suggestion from the testator, so far as the record discloses, alienists to visit the testator on various occasions prior to, at the time of, and subsequent to, the making of the will; that large fees were paid to or demanded by such alienists; that, by the will, more than 90 per cent, of the estate of testator was given to strangers to his blood, while certain of his relatives were entirely disinherited; where the attorney usually employed by testator was accessible, but was not called to draft the will, there is sufficient to excite more than mere suspicion that the will was procured under undue influence, especially where there is evidence tending to .show that testator, at the time of making the will, was in
We feel constrained to hold that the court did not err in submitting to the jury the question of undue influence.
The rule announced in the second paragraph of the syllabus of our former opinion has been attacked as in conflict with the rules heretofore announced by this court. We are of the opinion that the statement of law therein contained is too sweeping.
In In re Estate of Bayer, 119 Neb. 191, it was held: “Where a will is contested because it is alleged that it was procured by undue influence, the burden is upon the contestants to establish by proof, or by fair inference to be drawn from facts proved, that there was undue influence, which induced the testator to dispose of his property contrary to his intention. In such a case, suspicion or supposition of undue influence is not sufficient either to require the submission of the question to the jury, or to-sustain a verdict.”
In the case of In re Estate of Noren, supra, it was said (p. 659) : “Undue influence as condemned by the law in this class of cases is a subtle thing. Much like crime, it is usually surrounded by all possible secrecy. It is almost always difficult to prove by direct and positive proof. It is largely a matter of inferences from facts and circumstances surrounding the testator, his life, character, and mental condition, as shown by the evidence, and the opportunity afforded designing persons for the exercise of improper control.”
The correct rule, we believe, is this: In a will contest,, it is necessary to submit the question of undue influence
The second paragraph of the syllabus of our former opinion is vacated. No prejudicial error has been found. We adhere to our former judgment of affirmance.
Affirmed; second paragraph of FORMER OPINION VACATED.