95 Kan. 337 | Kan. | 1915
The opinion of the court was delivered by
Lewis Pyle was reared by his parents in Kansas. He removed to Wyoming, where he resided for some years. In November, 1909, he went to Denver, where he received medical treatment. About January 11, 1910, he came to the home of his mother, in this state, where he remained until he died intestate a month later, owning considerable personal property. He was survived by his mother, two brothers and three sisters, his father being dead. Two of the sisters brought action against the mother, the two brothers, and the other sister, alleging the wrongful conversion of all the personal property, and asking a judgment in behalf of each for one-sixth of its value. The title to the property depends upon the question — Of what state was Lewis Pyle a resident at the time of his death? If of Wyoming, one-sixth of it descended to each of the parties named; if of Kansas, the mother became its sole owner. The defendants maintain that he came to Kansas intending to make this state his permanent home, thereby becoming a resident here. The plaintiffs deny this, and assert that before he entered this j urisdiction his mind was so far impaired by disease that he had no capacity to make a change of residence in a legal sense. The court found for the defendants, and the plaintiffs appeal.
“If it were admitted that idiots, and persons wholly bereft of understanding, are incapable of changing their domicil, it would not follow that the same incapacity would attach to all degrees of mental imbecility. There are those, and not a few, who may be unable to manage their property and other concerns with good judgment and discretion, and may need guardians to protect them from imposition, and who nevertheless have sufficient understanding to choose their homes.” (P- 26.)
“The mere fact that a person is of unsound mind does not necessarily preclude him from establishing his domicile, as the question must depend entirely upon the extent to which his reason has been impaired. In general it may be stated that but a comparatively slight degree of understanding is required in order that his action may be recognized.” (14 Cyc. 848.)
The expert evidence regarding Lewis Pile’s condition was given in very general terms. The specific statements regarding his conduct after coming to Kansas had considerable persuasive force. Whether he was capable of an intelligent design to abandon his old home and acquire a new one is a question of fact upon which there was sufficient conflict of testimony to render the decision of the trial court final.
C. H. Pyle, one of the defendants, testified to communications between himself and Lewis Pyle, with regard to the intention of the latter to make Kansas his permanent home. The testimony is objected to on the ground that its reception violated the statute which now reads:
“No person shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with a deceased person, where either party to the action claims to have acquired title, directly or indirectly from such deceased person.” (Laws 1911, ch. 229, § 1, amending Gen. Stat. 1909, § 5914, Civ. Code, § 320.)
The defendants maintain that the witness was not testifying in behalf of himself, but of his mother, who according to their view was entitled to all the personal property owned by Lewis Pyle at the time of his death. But the plaintiffs were contending that the defendants had joined in wrongfully converting the property, and, were all liable in damages, so that C. H. Pyle was a witness for himself as well as for his mother. The contention is also made that the plaintiffs had rendered the witness competent to give the testimony referred
A purpose on the part of Lewis Pyle to change his residence could perhaps be inferred from the circumstances testified to by wholly disinterested witnesses. Important evidence on that subject was given by the husband of one of the defendants. He testified that he had several conversations with Lewis Pyle, who talked with him about wanting to buy land in Kansas,, saying that he would like to have an alfalfa farm here; that he was tired of the life he had been living. The point is made that this witness also was' incompetent, because as the husband of a defendant he had an interest in the controversy, although not himself a party. Prior to 1911 the statute began with the words “No party shall be allowed to testify,” and was held not to affect a witness who was not actually a party to the litigation, no matter how much he might be interested in, or affected by, the result. (Mendenhall v. School District, 76 Kan. 173, 90 Pac. 773.) As shown by the quotation already made the amended statute substitutes “person” for “party,” where that word first occurs. This change,
Complaint is also made of the rejection of an offer to prove that some of the defendants, who gave notes to their mother for the part of the estate they received, had at the time no property, the purpose being to show that the transaction amounted to a division of the property, the notes being given as a mere form. The ruling was not material, because if Lewis Pyle died a resident of Kansas — as the trial court found — the plaintiffs had no interest in the property and were not legally concerned as to what was done with it.
The judgment is affirmed.