Collett v. Frederiksen

18 N.W.2d 68, 144 Neb. 915

• Court: Nebraska Supreme Court
• Decided: March 9, 1945
• Docket: No. 31720
• Status: Published

Opinions

Wenke,, J.

Motion for rehearing denied, supplemental opinion filed December 1, 1944, withdrawn and the following supplemental opinion filed:

On re-examination of the record in this case on motions for rehearing no reasons appear for a departure from the conclusions arrived at in the original opinion, reported ante, p. 887, 15 N. W. 2d 80, except that the paragraph remanding the case for retrial solely on the question of undue influence should be modified.

With regard to the issue of testamentary capacity the following appears in the body of the opinion:'“We deem the evidence sufficient to disclose that the testator possessed testamentary capacity to make the will and codicils thereto.” This statement is sustained by the record but it may tend to imply that in the circumstances it was a function of this court to weigh the evidence on this issue. The only function of this court was to ascertain whether or not there was sufficient evidence adduced by the contestants to overcome the presumption flowing from the prima facie showing of the proponents that the testator was competent to make a will. See In re Estate of Witte, decided November 3, 1944, 16 N. W. 2d 203.

Accordingly this portion of the opinion is withdrawn and the following shall be considered as a substitute statement therefor: We conclude that the evidence of contestants was insufficient upon which to justify a submission of the issue of testamentary capacity of the testator to a jury. There was no evidence to support a verdict finding a lack of testamentary capacity.

By the pleadings the contestants raised two issues: (1) Lack of testamentary capacity; and (2) undue influence. Both issues were submitted to the jury and a general verdict returned finding that it was not the will and codicils thereto of Fred George and that they should be denied admission to probate. From this verdict and judgment thereon the proponents appealed and it is this verdict and judgment thereon which our opinion vacates and sets aside. Our reversal, however, limits the question on retrial to undue influence.

With reference to our authority on vacating and setting aside a verdict and ordering a retrial of the case, we held in Cerny v. Paxton & Gallagher Co., 83 Neb. 88, 119 N. W. 14: “ * * * the practice has been to regard the setting aside of a general verdict by a jury as necessitating a re-examination of all the questions submitted to the jury in the trial which resulted in such verdict. * * * When a case brought to this court is sought to be reversed for any of the errors which are specified in section 314 of the code (now section 25-1142, R. S. 1943) as ground for a new trial, the making of a motion in the district court for such new trial in the time and manner required by the statute is an essential prerequisite to the right of the party appealing to have such error considered in this court. In such cases the appeal is in effect an appeal from the order refusing a new trial. Under section 594 of the code (now section 25-1926, R. S. 1943) which provides that, when a judgment or final order shall be reversed either in whole or in part in the supreme court, the court reversing the same shall proceed to render such judgment as the court below should have rendered, or' remand the cause to the court below for such judgment, it logically follows that, since, when a cause is reversed for any of the errors specified in section 314 (section 25-1142, R. S. 1943), the court below should have rendered a judgment awarding a new trial, it is the duty of this court to either render the judgment granting a new trial, or remand the cause to the court below for such judgment.” This is stated in Winterson v. Pantel Realty Co., 135 Neb. 472, 282 N. W. 393, as follows: “ ‘If the trial court is of the opinion that it erred in submitting- the case to- a jury and should have directed a verdict for the defendant because of the insufficiency of plaintiff’s evidence to make a case, the proper remedy is to grant a new trial.’ Barge v. Haslam, 65 Neb. 656, 91 N. W. 528.”

In this case where the jury returnéd a general verdict, under the provisions of section 25-1926, R. S. 1943, we can do no more.

Upon retrial, if the proponents make a prima facie case as to testator’s testamentary capacity and the evidence of contestants again proves to be insufficient upon which to justify a submission of that issue, the court should not submit it to the jury but should direct a verdict thereon for the proponents.

Therefore, in accordance with the supplemental opinion in In re Estate o f Witte, decided February 2, 1945, 17 N. W. 2d 477, we withdraw from the opinion the last paragraph and substitute therefor the following: For the reasons given in this opinion, the cause is reversed and remanded for retrial.

With this supplement to the original opinion the motion for rehearing is denied and the original opinion adhered to as modified.

Original opinion adhered to as modified.