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Home > Journals > Michigan Law Review > MLR > Volume 41 > Issue 4 (1943)

 

Abstract

The sixth clause of testator's duly executed will was as follows: "I have already deeded to my niece, Alta J. Pullman, the southeast quarter (SE¾) of section eight (8), township twenty-four (24), north, range four (4), east of the 6th P. M. in Cuming county, Nebraska, and for that reason I do not devise any real estate to her in this Will." About thirteen months prior to the execution of this will, testator and his wife executed a deed conveying this tract of land to Alta J. Pullman. The deed was never delivered, and was not executed in accordance with the requirements for the execution of wills. In the court below it was admitted to probate, as a part of testator's will, on the ground that it had been incorporated in the will by reference. It appeared that testator's only heirs were two sisters and certain nephews and nieces; that Alta J. Pullman, a niece of the testator's wife, had been brought up in testator's home from the age of three years as his child, and was regarded by him as a favored object of his bounty. Evidence was also introduced showing the testator's constant purpose in the later years of his life to make a gift of the real estate in question to her, and also indicating that he had no clear understanding of the appropriate legal devices to be used to accomplish this end. Thus, at one time testator sought to manifest the gift by giving Alta J. Pullman the key to the door of the house on the premises; and at a later time he told a friend that he had willed the land to her. On appeal from the order admitting the two instruments to probate, the decision of the court below was affirmed, on the ground that the intent to incorporate the deed in the will sufficiently appeared. Three judges dissented. In re Dimmitt's Estate, (Neb. 1942) 3 N.W. (2d) 752 (1942) rehearing denied, November 14, 1942.

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