93 Kan. 60 | Kan. | 1914
The opinion of the court was delivered by
The action in the district court was one to contest the will of Mattie J. Adams. The grounds of invalidity relied on were mental incapacity of the testatrix and fraud and undue influence practiced on her by Ralph L. Funk. The court sustained the will except as to certain provisions in favor of Funk. These were set aside as having been induced by his undue influence and fraud, and he appeals.
Funk was the physician of the testatrix for several years before her death, and was also her attorney in fact for the transaction of her business. He selected the attorney who drew the will and paid for drawing the will, but it does not appear whether out of his own
To forestall the inference of undue influence, Dr. Funk produced the testimony of the attorney as to what occurred in connection with the preparation of the will. After this testimony was given the court struck it out, believing, no doubt, that the rule of privilege forbade its consideration.
The testimony was very material if the witness were competent.
The will disposed of an estate valued' at $43,000. It contained ten specific bequests, amounting to $33,000. Several of these bequests involved the investment and management of funds, some were for life with remainders over, and some were on condition. Whenever
The court is of the opinion that the testimony should not have been stricken out.
When pressed to answer for whom he was attorney in the preparation of the will the witness gave it as his opinion that he was attorney for the testatrix. Perhaps the conclusion was one for the court to draw, and doubtless the court’s opinion coincided with that of the witness, but the witness’s description of the office which he performed indicated that he was a mere scrivener, and the fact that he was an attorney at law did not affect his capacity. Beyond this, the court has held that an attorney who drew a will was competent to testify who gave him the data for the will and whose
Communications received from the testator not being privileged, it is manifest that the attorney may relate the facts and circumstances surrounding the preparation and execution of the will to show that the testator was not under any improper restraint.
It is argued that the provisions of the will in favor of Dr. Funk were commingled with others in such a way that the court could not in reason say that one class •was the result of undue influence while the other class represented the free will of the testatrix. It is a fair inference that the testatrix asserted her own will with considerable vigor up to a certain point and then yielded to the pressure of Dr. Funk’s influence. This being true, the unconstrained portions of the will will stand.
The court having duly determined that the testatrix possessed the requisite mental capacity to make the will it is not necessary to reinvestigate that subject.
The judgment of the district court is affirmed except that the cause is remanded for a new trial of the issue of undue influence and fraud on the part of Dr. Funk with respect to the provisions of the will beneficial to him.