*1 45,437 No. Mary Bernatzki, Deceased. of the Estate of Matter Will, Appellant, of the Last Proponent Veach, Elizabeth Clyde Margaret Mulford, J. Bernatzki, Stiebe, Richard Will, Appellees. Contestants Last Howerton,
(460 527) P. 2d *2 Opinion filed November 1969. Nuss, cause, Pringle, argued Bend, William H. Melvin O. of Great and Bend, Nuss, Gary Kaufman, Vernon L. Leonard A. Birzer Lee all of Great and appellant.
were with him for the on the brief Batt, argued cause, Meeks, Byron }. Rae E. and also of Kinsley, appellees. was on die Kinsley, with him brief for the The opinion of the court was by delivered Mary validity This case a will. involves Fontron, J.: Veach, to by whom will refer either plaintiff we hereafter as name, is the last will and testament of proponent purported brother, children, Stiebe, her Bernatzki. three Elizabeth Joe Joe’s Richard will Bernatzki and Mulford are Margaret contesting testamentary on the basis undue and lack of of both influence de- We to contestants as capacity. collectively shall refer these The trial court found will to be void and that probate fendants. from that decision. plaintiff appealed should denied. The has In 1954 background case is somewhat depressing. charges against Bernatzki was convicted three of crimes Joe and to nature was sentenced three consecutive terms of one ten in the Kansas was years Penitentiary. paroled to State was revoked some un- following year 1958 but his for parole to and he recommitted the penitentiary, disclosed infraction was his May until death on 1966. where he remained a will which notarized but On February this will his sister witnessed. sent for Mary safekeeping, He it has ever been made to have admitted to probate. and no attempt later, 30, 1964, on December Nearly years three executed a will, signed witnessed. This was properly prepared second Burnett, a attorney Larned whom Veach Mary Mr. Donald L. for In this brother will purpose request. consulted Joe’s children, $2,500 of his $1 devised and to each three bequeathed $2,000 brother to his sister and the re- Raymond, Maggie to his an account in the Inter-State including mainder his property, Kansas, to his Federal Loan Kansas City, & Association of Savings sister, Its Mary. for Mary proffered probate. provisions will with this one same as those in notarized will of $1,000 exception: Margaret, contained daughter bequest will, in the 1962 to the sum of $1. reduced After court district court being transferred from probate trial, the A case was heard amount Wildgen. large before Judge of evidence oral deposition introduced court, fact, after concluded findings extensive making that the will was invalid two grounds: (1) That Joe was not of mind his last sound at the time of will signing testament on December will was the that said (2) result of beneficiary, undue influence on the part principal Veach. Mary plaintiff’s directed primary argument on appeal
sufficiency of that the evidence. In ourselves to addressing question, we again rule, age, reiterate the grown hoary venerable now with that findings of the trial by court which are substantial supported competent evidence are not to be overturned review. appellate (See Error, cases in 1 Hatcher’s Kansas & Digest Appeal [Rev. Ed.] This 507.) is principle who seriously disputed by plaintiff § takes the and position with much of urges that the evi- emphasis dence introduced was with- incompetent, leaving findings thus out substantial support.
No good would purpose summarizing testimony be served of the individual witnesses. Some in twenty-two testified persons all, doctors, including and it is sufficient us state at this time that there is in evidence to the following record effect: death, For at least 12 years before his which occurred at about 75, age Bernatzki suffered from diabetes and in syphilis; April, Joe 1965, a medical examination disclosed that in addition to those two diseases was arteriosclerosis, also afflicted with dis- heart Joe 1965, ease and emphysema. In June, failed to recognize friends Joe whom he had known for years, even when identified they them- him; selves the will of December described property no e., owned longer Joe, i. the account in a Kansas City savings and loan had company withdrawn July Joe in placed the prison inmate fund. fellow inmates would Joe’s often take advantage of him. doctor had who treated him Joe’s
134 was his opinion that in testified to his incarceration prior will was executed. when the unsound mind on December mentally incompetent second doctor signed. will after the some four months June, testator, at the whether testamentary capacity test knew will, possessed, he property knew what time of making who were go understood where he wanted his property Walter, Kan. re Estate bounty. (In natural of his objects time, capacity where mental 262.) 2d The focal point P. execution, but evidence issue, of the will’s is in is the actual date date, that is admissible before and after both capacity incapacity, re (In competency. mental into investigation relevant Walter, Estate supra.) standards, we believe evidence elementary these Judged by finding trial court’s support is sufficient heretofore outlined will at time the testamentary lacked capacity 30, 1964. was executed on December in- however, admitted that the court strenuously argued, It is Ber- finding it considered in evidence which competent the will. The time executed mind at the natzki was unsound Prison types: was of two (1) been challenged evidence which has Crouse, and Warden identified by medical records which were for the defendants medical doctors appearing of two (2) based, the records identified part, whose least opinions Crouse. medical records consisted records primarily (1) Joe’s to and number prison admittance treatment on a hospital incarceration, his long reports of occasions during (2) Center, Diagnostic the Kansas where *4 2,1965, to from 1965. One of the patient April April reports latter Summary Case physical was Medical examination at Joe’s Nabours, D.; Richard D. the other signed by Center which was M. the Center was a Psychiatric Diagnostic Report over the D., of Karl K. M. Clinical Director of the signature Targownik, Center. view, the objections
In our to the medical records are unsound. Under the K. S. A. 60-460 business provisions entries (m), in constituting exceptions admissible evidence as to hearsay rule, statutory rule. This for all same as practical purposes, is the that embodied the Uniform Business Records as Evidence Act. this Although are not decision of court any squarely we aware statutes point, jurisdictions having our research that in reveals ours, similar to held to be admissible records are hospital generally Anno., 1033-1036; S., Evidence, 728b, evidence. (32 C. pp. § J. Anno., A. 2d Evidence; 120 L. R. A. L. R. Hospital Record as 553, Evidence—Hospital Records.) medical records of and treatment hospitalization Joe’s itself, the business
penitentiary are admissible under hospital, clearly entry statute, and that the medical records we entertain the opinion and fall within Reception Diagnostic essentially Center same enactment category. by legislative Center was established as a public institution control general under supervision, A. management of institutions. S. (K. the state director of penal 76-24a02, function, S. as set forth in K. A. 1968 24a04.) primary Its 76-24a03 is to offenders sen- Supp. study felony examine male tenced to may assigned courts this state so each be addition, appropriate penal may institution. director make on requisition any the warden of the transfer penitentiary may to the 76- prisoner Center for S. study. examination A. (K. 24a07.) study When the examination and is concluded prisoner shall be to a for confinement in man- assigned penal institution like ner as new prisoners.
We have held the Kansas Diagnostic Center to be institution, penal state and a transfer from the penitentiary to the center to simply an administrative transfer within the penal sys- Gordon, tem. v. (State 203 Kan. 453 P. 2d 80.) The record examination and made diagnosis by a doctor of a patient medical transferred to the Center from the penitentiary examination and is, and then to study returned in our penitentiary judgment, included in the properly penitentiary as a records part pa- tient’s record and hospital is admissible in evidence as such. claim appears
No be made that the doctors who testified behalf of the defendants were qualified in field of medicine. entitled, Being experts they virtue of the provisions of K. S. A. 60-456 (b) (1), express opinions facts personally known them or made to them at the known trial. In Casey Co., Phillips Pipeline court, 199 Kan. 431 P. 2d this statute, considering declared: import requires expert . “. . The statute witness base his personally perceived facts or known him known to him *5 136 through hearing. knowledge acquired one’s own ‘Perceived’ means put (K. [c]), in evidence. known’ refers to facts senses S. A. 60-459 and made by it is A. 60-458 with K. S. The rule must be considered in connection opinion.” expressing unnecessary specify data before for witness (p. 546.) of her in support of this court
Plaintiff cites two recent decisions admitted. We erroneously contention that opinions the doctors’ District, Common School Love v. controlling. think neither case is 780, employed 152, 192 that an appraiser Kan. 391 P. 2d we held value the fair market testify assessor’s office could county firm an out-of-state by made of real based the assessment estate can readily That case for tax purposes. to fix employed values distinguished from the one. present 213, 329, Trinkle, 343 P. 2d 185 in Kreh v. Kan.
The situation was offered one doctor this: An X-ray report simply obvious identification of doctor. For through evidence another the exhibit inadmissible. reasons we held court testimony Inasmuch as heard portions we invoke the deposition, urges that plaintiff were offered form, by way is or documentary written rule where evidence an court will appellate decide deposition, stipulation transcript, established, as in substantially for itself facts have been what 727, 2d Kemper, Estate 157 145 P. re Kan. original (In action. 659, 200; Turner, 192 North River Ins. 103; v. 164 Kan. P. 2d White Co., 758, 1066.) 352 2d v. Aetna Finance 186 Kan. P. Co. its However, not without limitation. In discussing rule is Crane, 777, court, 324 2d in Boese v. 182 Kan. P. application, follows: as spoke rule, however, universally applied is not ". . . This under all conditions. Turner, applied (White is all evidence It been where written form v. has testimony only little, any, supra); bearing upon has where the oral adduced if question presented (In principal and all other evidence in written form applied Kemper, supra); testimony has not been re Estate but written in disregard testimony the court would be called of one form where (Bolin County accept as true others v. witness and Johnson [deposition testimony]; Bank, 2d 477 Karlan Furni Nat'l 160 Kan. 159 P. Richardson, 40,871, April Co. 324 P. 2d No. decided ture 182 Kan. testimony]; see, also, [stipulated Akins v. Illinois Bankers 1958 Life Co., 180).” (p. 780.) 2d 166 P. Assurance Kan. case, record, do not The facts of this as revealed call thing, of the rule. For one much of the evidence application pro- Furthermore, the defendants’ duced at the trial oral. while *6 medical testimony presented by deposition, one of tbe plaintiff’s own medical also, experts testified a by deposition basing contrary in opinion large part the same medical records relied on the by defendants’ No experts. challenge was made to the qualifications, competence or medical proficiency experts either side. We find little here which would this court in justify disregarding the testimony one set at the experts expense of the other. That responsibility lay with the trial court which could assess the relative worth of the conflicting medical against evidence backdrop oral testimony given at hearing.
We obliged conclude court’s finding to the effect that Bernatzki’s will void because of mental unsound- ness was based on substantial competent evidence even though the evidence, whole, on the was highly conflicting. Due to this con- clusion on our it would part, gesture be useless to consider whether the will was procured by undue influence.
Reversible error does not appear judgment is affirmed. J., dissenting: There is no arbitrary rule of law that Schroeder, the children of a deceased inmate at prison Lansing are entitled to his property, a the contrary will to notwithstanding.
The legal in in point my this case which opinion requires a re- versal cannot be garnered from the court’s opinion. Bernatzki, trial court found inmate, the deceased prison
be mentally incompetent on the 30th December, 1964, day date he executed his last will and testament. Among the evidence considered by the trial in court making this finding was the opinion one expert medical doctor based upon the opinion
another expert, psychiatrist. The psychiatrist’s opinion was form of a from the Kansas Reception and Diagnostic Center contained in the Kansas state files at prison Kansas. Lansing,
Rule No. 116 of this court Kan (201 xxxi) provides part: proper “. . . If objections, evidence was admitted over and in his rea- judge evidence, sons for the decision the does state that such specifying particularity, considered, presumed same with was not then it shall be in all subsequent proceedings judge that the evidence was considered and did enter into his decision.” In the instant case the matter heard the trial judge who facts, determined the and he overruled the proponent’s objection to the which was prejudicial evidence inadmissible under Kansas law. decision I is material and controls the think point entire apart
herein cannot be considered isolation presented. record case, including testified in this twenty-two persons
Of who doctors, Ber- their only two testified natzki was his last will and time executed incompetent medical doctors the name testament. witnesses These two of Dr. Walter L. M. Dale Atwood. McKim and Dr. regularly
The medical doctor who attended Bernatzki Moore, at the was Dr. Robert the medical director penitentiary H. Kansas state He saw penitentiary. frequently ailments, attended Bernatzki was com- and in his opinion Joe *7 at petent day the he on the 30th of Decem- time executed his will ber, 1964. doctor, Shivel, a testified did not G. also medical he
Dr. David Bernatzki, and medi- reviewing depositions but after know Joe records, have had the felt could well presence cal he Bernatzki of December, objects know the his during bounty, of mind to and the extent of the property, he wanted inherit his people He he lean on the judgment he owned. stated would of property counsel. legal Leavenworth, attorney who took last Murray, H. John to him in penitentiary and of Bernatzki testament
will Joe day December, 1964, testified he first met execution on 30th him having Bernatzki on November at represented matter; a he had that time in connection with consider- parole and next with him saw Bernatzki on April correspondence able Bernatzki legally was Murray’s competent 1956. and time he executed last will testament. a will at the He make Bernatzki, to which Bernatzki it was responded read will it be drafted. He asked Bernatzki if he was he asked way children, he fact was out his Bernatzki cutting aware this, and Bernatzki the reason for Bernatzki was. He asked said he had more or less to with him at the nothing him his children do told tried, and made no get effort to him apparently help time out of penitentiary. all medical is to be noted the doctors and H. It John by deposition.
Murray a included Lansing penitentiary files of the Kansas state The and Diagnos at the Kansas while report Kansas, 1965. Center, April from April tic Topeka, the will in con he executed four months after was a little over This admissible in evidence under held to be This troversy. report entries exception the business of K. S. A. 60-460 (m), provisions summary a medical case contained report to the rule. hearsay rec Bematzki’s examination physical the results of showing Nabours, D.,M. 1965. April Richard D. dated ommendations showing diagnostic report also contained a psychiatric with his conclusions together of a findings psychiatrist are stated as follows: organic char- syndrome a condition brain disorder is basic mention “The any impairment These diffuse of brain tissue function from cause.
acteristic of impairment syndrome consisting of characterized disorders are basic orientation, impairment memory, impairment functions of all intellectual impairment judg- calculation, knowledge, learning, etc.), (comprehension, ment, liability of affect. and shallowness present may only be syndrome may mental disturbance “This be manifestations, manifestations, psychotic neurotic or behavioral associated with disturbance. psychotic prisoner definitely from such a disorder with “The suffers disturbances. behavioral Recommendations psychiatric point of this man needs an environ- “From medical and view strong indication from a can be met. There is a ment where his needs point diet and on a diabetic that this man be on salt free view depression anxiety worrying moods mild can diet. His moderate with
very easily Since there are with tire modern managed tranquilizing drugs. syndrome deterioration, organic he symptoms senile of an brain with definite guidance. is an must that this man There absolute structure will need supervision least a a medical doctor at once week.” under and seen will be 7, 1965, and was Karl signed by is dated K. April
This the diagnostic as clinical director of a Targownik, psychiatrist, center. he ac- remotely that was by deposition
Dr. McKim testified Bernatzki; had through with that he thumbed quainted Joe in the same Dr. of and had Kinsley, practiced records of Atwood with Dr. Atwood. also testified had examined the building He he Sherman H. medical records contained of Crouse deposition and the evaluation. psychiatric evalua- psychiatric medical records and the total
Based access, that stated had he tion which the witness to No October, 1964, mind. hypo- was of unsound in his opinion concerning to this witness basis put was question thetical of his opinion. continuously counsel if Bernatzki was unsound asked by
When McKim Dr. answered: mind put way: say probably have to of unsound “I would it this You he may minutes, hour, there; time; here; a few that it have been mind at there, you might say fairly day,
a here and this man is sound mind— where got this; things [times] he’s and so on like at other there he remembers what big memory.” would holes in his On further examination Dr. McKim said: something higher involving processes, “In transactions or business mental gentleman may competent. essentially this never have been He had no education.” Atwood testifying by Dr. said Bernatzki was his deposition 16, him patient February identified records of visits with on 3, 1954, February and on 1958. On March 1954, March him for but there is no record that Dr. syphilis, he started treating Bernatzki at time after 1959. any saw Atwood June Atwood medical records deposition Dr. reviewed the Crouse, consisting H. medical case Sherman summary report contained in the Kansas psychiatric Dr. Nabours report. No hypothetical question Center Diagnostic Atwood, was permitted but he testify Dr. in his put Bernatzki was of unsound December mind He person. acknowledged that a incompetent competent and an could competent opinion perhaps have giving influence physician on his opinion. he testified: examination
On cross going your reputation you medical to base If that Mr. Bernatzki “Q. neurological examination, you this unsound mind would base it report? on this course, you Well, report. form a wouldn’t conclusion on one “A. After patient period all, patient over sees a time and he a doctor knows that gets somebody opinion. patient and else’s else refers reputation ready your you base medical fact Are Mr. Ber- “Q. April report? on this unsound mind based natzki was Yes, say that. I would “A. you willing your reputation Now, you say stake on that? “Q. *9 “A. Yes.”
It is as to to be noted the appellant objected counsel for and Diag- of the admissibility report from the Kansas Reception nostic objected Center. Among other things, specifically conclusions stated therein these docu- to the prior acceptance ments in evidence. opinions both Dr. and Dr. were based in McKim Atwood
part upon the report Diagnostic from the Kansas Center which contained the conclusions without quoted heretofore any indication in the record use by as to a limitation of their such witnesses.
The court admissibility of this kind approved opinion testimony based of K. S. A. provisions 60-456 (b) (1), which states: “(b) testifying expert, If the is witness as an of the witness opinions opinions judge
the form of or inferences is to such limited as finds (1) perceived personally based on or data known or made facts added.) hearing. (Emphasis known to the witness at the . .” . It may be said Dr. McKim Dr. Atwood testified concerning matters known to them at the but hearing, to the extent that these matters consisted the conclusion in a opinion psychia- trist’s report, they go the authorization beyond in the statute.
If it be assumed the psychiatrist’s opinion concerning the mental condition fact, Bernatzki on 5th day is a April, then there is in the conflicting evidence record on this matter. Under these circumstances a hypothetical question is necessary lay foundation for such proper K. S. A. opinion testimony. 60-456 and 60-458 effect a intended to change prior law of Gard, Annotated, this state. Kansas of Civil Code Procedure 60-458, 453, 454, it is said: pp. § is “. . . But it the established Kansas and rule elsewhere that where disputed opinion personal
the facts are
and the
based on
is
facts outside the
witness,
question
hypothetical
present
necessary
observation of
is
theory upon
opinion
46;
Wilcox,
See Tefft v.
based.
6 K
Shouse v.
Consolidated Flour Mills Co. 132 K
367 E. 2d To extent 801.) Ill. 10 N. of trial court. province McKim and Dr. Atwood invaded the District, 192 Kan. is v. School Squarely Love Common point that the of opinion 391 P. held in substance 2d upon be valuation expert witness could not based appraisal from such a though figures made third even property party in a office. public a document filed appraisal recorded on law torts where analogous presented An situation based an in- upon on an inference liability predicated cannot be ference, (Emigh a a presumption. based presumption Andrews, 2d 901.) Kan. 191 P. Stiebe,
It of the children is of interest note Elizabeth one testament, a Bernatzki and his last will and contestant of testified that if her had all his property father left a will giving brother, to her and sister and he have been competent her would to make this will. of fact was the trial court in its findings made point
Another Bernatzki without the assistance December that on counsel, clerk the district court of caused to be filed with the 60-1507, for relief S. A. petition pursuant his K. County Edwards When the suggested by Supreme the form Court Rules. using court eventually day heard in district on the 23rd petition in court. While personally present Bernatzki June, motion, his 1507 testifying person support Bernatzki was heard the instant case on his own trial who motion made judge did not know he why Bernatzki was in court and finding dismissed but prejudice. forthwith his without court petition, however, stated, it would entertain similar until petition and the court assured had had examined sufficient been his position prosecute to comprehend peti- mental capacity therein. In stated view of grounds finding tion on the herein, should have perhaps judge the trial court disquali- this case. In re (See Hupp, himself in Estate Kan. fied 2d 428.) 291 P. the judgment submitted respectfully
It is trial court should and remanded for a new trial on the ground reversed that it evidence erroneously considered admitted in the trial of the case to the prejudice appellant.