358

The judgment of the district court is re-, the assessment, but defendant refused to versed, and the cause remanded. accept the same. Reversed and remanded.

ROSE, J., not sitting.

LETTON, J. (dissenting). I am of the opinion that the evidence as to the use of the bridge as a way by the public, to defendant's knowledge, was sufficient to make it a question for the jury whether the defendant's employés used ordinary care to avoid injury to licensees when they backed an engine and cars over the bridge without a lookout or man stationed at the end of the car to give warning to persons liable to be walking on the track.

DRAMSE v. MODERN WOODMEN OF
AMERICA. (No. 19815.)

The answer denies membership at the time of death; denies any offer or tender to pay assessments; alleges that no demand was ever made upon deceased to pay increased rates; that they were not to go into effect until January 1, 1913, nine months after deceased defaulted; and that before the time they were to go into effect they were enjoined, afterwards abrogated, and never were attempted to be collected. The reply is virtually a general denial and restatement of part of the petition.

At the trial the plaintiff proved the issuance of the certificate and the death of Dramse on October 26, 1914; that proper proofs of death were made; and that the defendant has refused to pay the amount of the certificate. The defendant then proved the failure of Dramse to pay the assessment for March, 1912; that no attempt had ever

(Supreme Court of Nebraska. June 26, 1918.) been made by the association or its officers

LETTON, J. Action brought upon a benefit certificate issued in 1910. The assured died October 26, 1914. He paid all assessments and dues required by the certificate and the by-laws of the association up to and inHe cluding the month of February, 1912. defaulted in making the payment required for the month of March, 1912, and all assessments thereafter.

to collect a larger sum than Dramse had always paid; that the increased assessments were not to be payable until January 1, 1913; that before that time elapsed an injunction had been issued against the collection of any increased assessments; that the proposed rates were afterwards abrogated by the act of the head camp of the association; that they had never gone into force; and that no attempt had ever been made to collect them.

If

There is absolutely no proof in the record that the action of the Chicago head camp had anything to do with the failure of Dramse to pay the March, 1912, assessment. It is undisputed, also, that no demand was ever made upon him for any larger payment than the amount of the former assessments; and that he never tendered or offered to pay the March, 1912, or any later assessment. Dramse had continued to pay the monthly assessments as he always had done, he would not have lost his membership. His obligations were mutual and equal with those of the other members of the association. If this certificate were held valid and a recovery allowed upon it, he would have obtained nearly two years' additional insurance for nothing, and the other members of the association would be compelled to pay more than their just share, on account of his default. A tender made after suit was begun could not reinstate his lapsed membership. If the defendant had ever attempted to collect an increased rate of assessment as plaintiff's pleadings allege, or if other statements in the pleadings and briefs were sustained by proof, a different case would be presented; but, as it is, the evidence seems to show that he voluntarily and intentionally abandoned his membership in the association.

Under the provisions of the certificate it became null and void and the membership of the assured ceased upon his failure to pay the March assessment. In order to constitute an excuse for this failure, the petition alleges in substance that shortly prior to the 1st day of February, 1912, the executive council of the association unlawfully increased the rates of assessment which resulted in the deceased and other members failing to pay the increased assessment; that deceased offered to pay at the former rate, but this payment was refused; that a resolution was later passed by the association allowing those who had deThe provision afterwards made whereby faulted after the raise in rates to be reinstat- suspended members might, by taking certain ed; and that the plaintiff then offered to pay laction, be reinstated, is of no relevancy, be

cause Dramse failed to avail himself of the to his intoxication and his condition in that opportunity thus afforded.

The district court properly directed a verdict for defendant.

Affirmed.

HAMER, J., dissenting.

In re GUNDERMAN'S ESTATE.
SMITH v. GUNDERMAN.

(No. 20091.)

respect, and that the appellant was not preju-
Idiced by the form of the question and answer.
8. WILLS 330(3) — PROBATE - MENTAL CA-
PACITY-INSTRUCTION.

An instruction that, in determining whether the testator was of sound mind and had sufficient mental capacity to make a valid will, the jury may consider "the terms and provisions of the will itself, whether the same are just or unjust, reasonable or unreasonable, natural or unnatural," and similar matters indicated in the opinion, will not be held erroneous, requiring a reversal, if the jury is plainly told that such matters will not alone warrant the presumption of mental incapacity, but should be considered as circumstances in connection with other facts

(Supreme Court of Nebraska. June 15, 1918.) bearing on the condition of the testator's mind.

Upon the question whether the verdict of a jury can be sustained, the judges sometimes disagree; but this is no indication that they would disagree as to the preponderance of the evidence, if that question was submitted to them. We cannot find that the evidence is so clear and conclusive in this case as to require the court to interfere with the province of the jury.

6. EVIDENCE 501(3)-NONEXPERT WITNESS -MENTAL CAPACITY OF TESTATRIX.

Appeal from District Court, Boone County; Thomas, Judge.

Proceeding by A. A. Smith for probate of the will of Frank M. Gunderman, deceased, contested by Raymond Gunderman. The probate court admitted the will to probate, and from a judgment of the district court, on appeal, in favor of the contestant, the proponent appeals. Motion to dismiss appeal overruled, and judgment affirmed.

Frank D. Williams, of Albion, and A. M. Post, of Columbus, for appellant. A. E. Garten and Vail & Flory, all of Albion, for appellee.

SEDGWICK, J. A writing, purporting to be the will of Frank M. Gunderman, deceased, was filed in the probate court of Boone county, and Aubrey A. Smith, who was named therein as executor, filed his petition in that court for the probate of the same as the will of Frank M. Gunderman. The probate was contested by Raymond Gunderman, a son of the deceased, and upon the hearing that court found that it was the will of Frank M. Gunderman and admitted it to provate as such. The contestant appealed to the district court for that county, and upon trial therein the jury found in favor of the contestant. From a judgment thereon, the proponent, Smith, appealed to this court. A motion was filed in this court to dismiss the appeal, on the ground that the appellant as executor had no appealable interest in the controversy. This court, upon consideration, overruled that mo

tion.

The proponent quotes paragraphs 3 and 16 of the court's instructions to the jury and assigns error thereon. We do not find that any question as to these instructions was submitted to the trial court in the motion for new trial, and therefore these objections will not be further considered.

"A nonexpert witness cannot give her opinion as to the mental capacity of testatrix, unless such opinion is based solely on facts relating to the conduct and action of the testatrix as detailed in the evidence of the witness." 7. APPEAL AND ERROR 1050(1) ADMISSION OF OPINION EVIDENCE-PREJUDICE. [1-4] it is further contended that the only In contest of a proposed will, if it is alleged objection in the pleadings to the probate of that the testator was intoxicated when the will the will was "general incompetency or mental was executed, and that it was procured by underangement," and that therefore this judgdue influence, the fact that a witness, who was familiar with his condition at the time, was ment can be sustained only upon that ground; allowed to state her opinion as to "whether he and it is further contended that upon the was competent or incompetent to transact important business," will not require a reversal, if trial it was conceded by the contestant that it appears that the witness was testifying solely the deceased was not generally incompetent.

[5] The courts are not called upon to say what their decision would be upon this conflicting evidence, if the law required them to determine upon which side of the question it preponderates. It is for the courts to determine whether there is such a failure of evidence to support the verdict that all reasonable minds must on consideration of the evidence alone conclude that it is clearly wrong. Upon the question whether the verdict of a jury can be sustained, the judges sometimes disagree; but that is no indication that they would disagree as to the preponderance of the evidence, if that question were submitted to them. We cannot find that the evidence is so clear and conclusive in this case as to require the court to interfere with the province of the jury.

The conclusion in the brief seems to be that, | hand, there are circumstances indicating exas the only ground of contest alleged and re-actly the reverse. lied upon was conceded not to exist, the judgment must be reversed for that reason. The record shows that counsel for contestant upon the trial asked a witness: "What would you say as to his being intoxicated frequently, and about how often, during those later years?" This question being objected to as "incompetent, irrelevant, and immaterial," contestant's counsel stated: "We admit that at times this man was competent, but when he was drinking he was incompetent." The court then remarked: "If it is admitted that the man was mentally capable when reasonably sober, and only when unreasonably drunk was he mentally incapable, then we might as well confine ourselves to the immediate fact we have in hand at the time of the execution of the will." Whereupon counsel for contestant said: "Now, we will take just a moment for consultation." The court thereafter remarked: "We will proceed on the theory that he was mentally incapable to transact business." Thus it appears that the contestant's counsel had made an admission, which, when his attention was called by the court to the full effect of it, he desired to qualify, and asked for time to consider it. What the result of his considering the matter was is not shown from the record, unless we infer it from the remark of the court. This language of the court in regard to the theory on which they would proceed is perhaps a little indefinite; but it must mean that they would proceed on the theory that the question was whether he was generally incompetent, and the subsequent evidence shows beyond question that that was the theory upon which the trial proceeded.

The original brief of the proponent is devoted almost entirely to a discussion of the sufficiency of the evidence to support the finding of the jury. The contestant, Raymond Gunderman, is the only child of the deceased, and it appears that when this child was quite young the deceased was divorced from his wife, and the care and custody of the boy was given to the wife, whose residence was so far from that of the deceased that there was little intercourse between the father and son for several years. The son, however, visited his father on several occasions, and, when the father supposed that he was about to die, he sent for the son, who promptly came to his father and assisted him as he could. The deceased had no other relative in whom he was interested, except a sister, who had cared for the deceased in his youth. By the proposed will, the property of the deceased was substantially given to this sister, who was in poor circumstances, and the son was practically disinherited. There are circumstances, shown in the evidence, indicating a strong attachment on the part of the deceased for this sister, and also indicating to some ex

[6, 7] A serious question is presented by the objection that "it was error to receive opinion of witness Minnie Burns touching competency of deceased." That witness was asked the question, "Mrs. Burns, basing your opinion on your knowledge and acquaintance with Frank M. Gunderman, what would you say as to whether he was competent or incompetent to transact important business on the morning of the 22d day of September, 1914, at the time this will was written?" which was objected to as incompetent, irrelevant, and immaterial, and no proper foundation laid. The objection was overruled, and the answer was, "I don't think he was competent; he realized that fact himself." Upon motion, the last part of the answer, "he realized that fact himself," was stricken out, as not responsive to the question. The rule that "a nonexpert witness cannot give her opinion as to the mental capacity of testatrix, unless such opinion is based solely on facts relating to the conduct and action of the testatrix as detailed in the evidence of the witness," is almost, if not quite, universally applied in such cases. Furlong v. Carraher,, 102 Iowa, 358, 71 N. W. 210. This, of course, relates to the mental capacity to make a will, which is generally the issue presented. In the case at bar, the objections to the will alleged the mental incapacity to make a will, and also alleged the continual use of intoxicating liquors to the very time of executing the proposed will as a cause of such incompetence, and also that the will was obtained by Indue influence. This witness had been his nurse for several years, and had ample opportunity to know his drinking habits, and especially his condition in that regard at the time of making the will. She testified at large as to his habits of intoxication for the several years immediately prior to the execution of the will, and then fully in regard to his condition in that respect when the will was made. dinarily, where the question is as to his gen

Or

to be incompetent. One may be competent OTTO et al. v. GUNNARSON BROS. et al. mentally to make a will, and yet not be in a (No. 19905.) condition to transact important business gen-(Supreme Court of Nebraska. June 26, 1918.) erally. This question could only be considered proper upon the theory that it was understood by all parties to relate to the degree of intoxication of the testator at the time the will was made.

for defendant the money he paid for the land with interest and costs. Wertz was the only answering defendant. He pleaded that he bought the land in good faith, and asked that plaintiff be denied any relief. The action was dismissed, and plaintiff appealed.

to give notice of the defects, or of unsatis-, wherein plaintiff, not having appeared, was factory work, we will consider the evidence defaulted. Plaintiff offered to pay into court in support of plaintiffs' allegations. On these points there is a sharp and decisive conflict in the testimony. A number of witnesses testify on either side of the controversy. According to plaintiffs' witnesses, the engine failed miserably. Defendants, on the other hand, deny the making of the oral agreement, testify in detail as to what they claim the agreement was, and also offer testimony to show that the engine worked satisfactorily; that it was able to give, and did give, the service which might be expected and required under all the circumstances; and that there was no breach of warranty.

The witnesses testified in the presence of the trial judge. He made a personal inspection of the engine, saw it in operation, and had a better opportunity to determine the disputed questions of fact than we can have from the record before us. The case is here

de novo, and we are free to pass an independent judgment on the evidence; but we do not

find that the evidence preponderates in favor of plaintiffs, or that we ought to disturb the finding of the trial court, and the judgment is affirmed.

HAMER, J., not sitting.

(No. 20053.)

The first-mortgage foreclosure action under which the land was sold to defendant was begun by A. Benzen, and prosecuted to decree and sale and confirmation. Plaintiff contends that no summons was ever at any time served upon it, and that none of its officers or employés ever at any time had any knowledge that the Benzen mortgage was in process of foreclosure, or that it was fore the land to Wertz was confirmed, and that immediately upon making such discovery, or as soon as it could reasonably do so, it commenced this suit. The return by Cassidy, the deputy sheriff of Douglas county, that is in the usual form, recites, in substance, that on February 24, 1913, plaintiff was served by

closed until about a month after the sale of

delivering to Joseph C. McConney, managing agent, a certified copy of the writ.

At the trial there was only one witness who testified respecting the value of the land. On this point Mr. Epperson, who is the county treasurer and a long-time resident of the county, testified that the land in question was worth from $25 to $40 an acre, at the time

RACINE SATTLEY CO. v. POPKEN et al. the sheriff sold it to Wertz for a trifle over $7 an acre. The discrepancy between the actual (Supreme Court of Nebraska. June 26, 1918.) value and the amount realized at the sheriff's

(Syllabus by the Court.) PROCESS 149-SHERIFF'S RETURN-SUFFICIENCY OF EVIDENCE.

When a sheriff's return of summons is attacked and the testimony of the officer who made the service is taken soon after the alleged service was made, and he relates in detail the facts connected with such alleged service, and there is a substantial conflict in the evidence as to the facts of the service, such issue must be determined from a preponderance of the evidence under all of the facts and circumstances. Janous v. Columbus State Bank, 101 Neb. 393, 163 N. W. 327, 164 N. W. 1053.

Appeal from District Court, Deuel County; Grimes, Judge.

Action by the Racine Sattley Company against Frederick Popken, one Wertz, and others, with answer only by defendant Wertz. From a judgment dismissing the action, plaintiff appeals. Reversed, and cause remanded.

sale is so great as to shock the conscience. It raises a presumption of mistake or error of some kind notwithstanding the land was twice appraised, as defendant points out, at only about $1,000 more than it brought at the sheriff's sale. With the exception of the county treasurer and G. E. Hendricks, who testified solely to identify the two letters from plaintiff, all of the testimony was in the form of depositions so that we have the same opportunity as that of the trial court to pass on the probative value of such testimony.

Deputy Sheriff Cassidy testified on the part of defendant respecting service. He said that plaintiff was located in a large eight-story building in Omaha that was occupied by several implement machinery firms besides plaintiff. He entered the building, and, speaking to some person that he did not know, he asked for the officers of the company. From what this stranger said he concluded that a man in one of the offices, who subsequently said that his name was McConney, and that he was manager, was the person to serve, and he gave him a copy of the writ. DEAN, J. Plaintiff began this action to He said that he never saw the man whom he foreclose a second mortgage for $4,800 and served before nor after the time of the serv accrued interest, and to set aside a sheriff's ice. The testimony of Cassidy shows that deed to 320 acres of land that was issued to under the peculiar circumstances that are defendant Wertz, who purchased the land detailed by him he might easily have been misunder a first-mortgage foreclosure proceeding taken about the identity of the person he

Hoagland & Hoagland, of North Platte, for appellant. L. O. Pfeiffer, of Chappell, for appellees.