122 Kan. 291 | Kan. | 1927
The opinion of the court was delivered by
The action was one to contest a will which made nominal bequests to the testator’s children, and devised and bequeathed his property, real and personal, to his grandchildren. The plaintiffs were children of the testator. They were defeated, and appeal.
The petition alleged the will was void on its face for indefiniteness and uncertainty, for impossibility of execution because of its vagueness, and as violative of the rule against perpetuities. The petition also alleged the testator lacked testamentary capacity. The answer
In April, 1925, the issue of fact was tried before the court and a jury. The jury returned findings of fact which the court declined to approve, and on August 28, 1925, at the request of plaintiffs, the court stated findings of fact covering in detail the issue relating to testamentary capacity. In reciting the history of the case, the court referred to findings of July, 1924, holding the will to be valid and effectual,, and the last paragraph of the findings of fact stated that the findings and conclusions of July, 1924, were reaffirmed, since they interpreted the will paragraph by paragraph. Two conclusions of law were stated. The first was that plaintiffs should take nothing, and defendants should recover costs. The second was stated for the purpose of providing the basis of a judgment relating to the manner in which the will should be executed.
Plaintiffs filed a motion for new trial in the usual form, which was denied on August 31,1925. On February 4,1926, plaintiffs appealed from the order denying the motion for new trial.
A new trial is reexamination of an issue of fact (R. S. 60-3001). The only issue of fact involved was'whether the testator possessed testamentary capacity, and the motion for new trial stated grounds for reexamination of that issue. The trial of that issue had nothing to do with any one of the challenges of validity of the will presented in the motion for judgment on the pleadings. No appeal was taken from the order denying the motion for judgment on the pleadings, and a new trial would have nothing to do with the subject of that motion. The result is, the question whether the district court
The conclusion just stated is inevitable for another reason. The question whether the will was invalid on its face was not a question of fact. The general denial did not raise an issue of fact relating to that subject. The motion for judgment was equivalent to a demurrer (Smith v. Lundy, 103 Kan. 207, 173 Pac. 275), and the decision on the motion was a final determination of the issue of law which it raised. No appeal was taken within six months from the order denying the motion, and the court’s interpretation of the will became incontestable.
Plaintiffs contend the findings relating to testamentary ‘ capacity are not sustained by evidence, and are contrary to the evidence. Oral testimony favorable to plaintiffs is confidently quoted, which the district court' may have discredited, or may not have believed at all. Inferences of the district court are questioned, in disregard of the rule that, when testimony is open to different inferences, this court is bound by the district court’s findings. At the oral argument in this court, it was stated this is an “equity case,” apparently implying that the nature of the case affects in some way the function of this court in reviewing oral testimony. In other respects, the case is the usual one of dissatisfaction with findings sustained by evidence.
The judgment of the district court is affirmed.
