73 P. 92 | Kan. | 1903
The opinion of tlie court was delivered by
This action was brought by I. L. Kent, administrator of the estate of Elizabeth O. Grimshaw, deceased, a,gainst Howard L. Grimshaw and Olive A. Grimshaw, his wife, son and daughter-in-law of Elizabeth O. Grimshaw, to recover the sum
“This agreement, made and executed and entered into this 3d day of May, A. d. 1901, by and between H. L. Grimshaw and Olive A. Grimshaw, his wife, of the town of Winslow, Navajo county, territory of Arizona, the parties of the first'part, and Elizabeth C. Grimshaw, widow, of Paola, Miami county, state of Kansas, the "party of the second part:
“Witnesseth, That the parties of the first part, for and in consideration of the sum of nineteen hundred dollars, lawful money of the United States, to them in hand paid, the receipt whereof is hereby acknowledged and confessed, do hereby contract and agree that they (the parties of the first part), and each of them, jointly and severally, their heirs, executors, and administrators, shall and will pay, in lawful money of the United States, to the party of the second part, during her natural life, the sum of twenty dollars per month, payable each and every month at such place as the party of the second part may be located.
“It is hereby expressly understood and agreed that this is a contract wherein the parties of the first part bind themselves, their heirs, executors, and administrators, to pay to said party of the second part an annuity in the sum of two hundred and forty dollars per annum, payable monthly in instalments of twenty dollars for each and every calendar month during the life of the beneficiary, the said party of the second part.
“In the event of the failure of the said parties of the first part to faithfully carry out the conditions above set out and for a period of two months, then and in that event the parties of the first part contract*465 and agree that the full sum of $1900 shall, at the option of the party of the second part, become immediately' due and payable to the said second party, and the said sum of $1900 is hereby stipulated and agreed to between the parties hereto as fixed, settled and liquidated damages for such default, and proceedings may immediately be had by the said second party against said parties of the first part, their heirs, 'executors, or administrators, for the recovery of said sum.
“In Witness Whereof, We have hereunto set our hands and seals, the day and year above written.
Mrs. E. C. Grimshaw. (seal.)
H. L. Grimshaw. (seal.)
Olive A. Grimshaw. (seal.)”
This contract and compliance with its terms were pleaded by defendants in answer to the action brought against them. In reply, plaintiff put in issue the making of the contract. He. specially pleaded the mental incapacity of deceased to enter into such contract ; that defendants procured the possession of the funds and the execution of the contract by fraud and undue influence, and non-compliance by defendants with the terms of the contract. At the trial there were verdict and judgment for plaintiff. Defendants bring error.
The only questions of merit arising on this record relate to the rejection of testimony by defendant in the form of depositions. In response to the issue raised as to the mental capacity of deceased at the time of the execution of the contract, after proof of the execution of the contract by deceased had been made, and after it had been shown by defendants that deceased had lived for some time prior to the execution of the contract at the home of defendants, defendant Olive Grimshaw was asked : “What can you say from your association with her, your observation of her
An attempt is made to justify the ruling under that provision of the code which renders defendants incompetent to testify as to any transaction or conversation had personally with the deceased. We do not think this position tenable. These questions were not propounded for the purpose of placing before the jury any transaction with, or conversation of, the deceased, but for the p rpose of apprising the jury of the mental condition of deceased at and before the execution of the contract. Nor was the ruling justified upon the theory that defendants were non-experts, and hence incompetent to express an opinion as to the mental condition of deceased. The deceased had lived in the home of defendants prior to the execution of the contract; they had thus been thrown in constant close and intimate relations with her, and had an opportunity to form, and were competent to express, an opinion as to her mental condition. (Baughman v. Baughman, 32 Kan. 538, 4 Pac. 1003; City of Parsons v. Lindsay, 26 id. 426 ; The State v. Beuerman, 59 id. 586, 53 Pac. 874; Connecticut Mid. Life Ins. Co. v. Lathrop, 111 U. S. 612, 28 L. Ed. 536.) The exclusion of this evidence was error.
Again, for the purpose of showing that deceased
Other assignments of error are made, but from an examination of the record we deem them unimportant. On account of the errors mentioned, the judgment must be reversed and cause remanded for a new trial.