No. 19,745 | Kan. | Dec 11, 1915
The opinion of the court was delivered by
From a judgment in favor of plaintiffs setting aside a deed to certain property located in the city of Harper and awarding damages and costs defendants appeal. At the trial the court, among other things, found that plaintiffs, Walter A. Munger, Tilda E. Barney, Stella C. Robertson and Ida C. Pettengill, are the only heirs at law of J. C. Munger, deceased, who at the time of his death on March 21, 1913, was
On their appeal the defendants complain that the court erred in the admission of evidence and that the evidence does not support the findings and judgment.
One complaint is that Doctor Muir was allowed to testify as to the mental condition of Munger without sufficient knowledge of the man to qualify him to testify as an expert. The witness is a graduate of a medical school, had practiced medicine about thirty years and to some extent in the family of Munger. He had observed the condition and actions of Munger about the time in question and had given special attention to his mental state, and he stated that he discovered him to be in a very nervous condition, and, in his opinion, his mind had weakened and he was afflicted with a softening of the brain. The witness had the necessary skill and training and was sufficiently acquainted with Munger to be able to form an opinion as to his mental condition. Of course, the value of his opinion depended on the extent and intimacy of his acquaintance with Munger, his opportunity to observe and know the former as well as the present condition of his mind.
Several witnesses testified as nonexperts and-these had an acquaintance with Munger about the time of the conveyance and described his habits and peculiarities as well as some ab
Objections were made to the admission of letters written by Munger to his son about the time of the execution of the deed. In one of the letters, among other things, Munger spoke of his infatuation for Mrs. Myers, described her as a half-breed Cherokee Indian and a beauty, and also spoke of her love for him. Another of the letters was written to the son the day the deed to Mrs. Myers was executed, in which Munger appears to chide his son for attempting to exercise a guardianship over him and insisting that he was able to attend to his own business, also saying that on that day he would place his money and property with persons who loved him better than did his only son. In a lengthy, rambling letter written to his son shortly after the execution of the deed Munger tells of many circumstances attending its execution and describes the wiles and influences that were used to induce him to make the deed, that it was obtained without consideration, of his tardy attempt to keep the deed from the record and how he was induced to give her other money which he had on hand. He derided himself and said, in closing, “Your loving dam Phool of a Pa.” The last letter was a brief one to the effect that he did not think there was any chance to get his money and property back as everything had been done secretly and there were three of them to swear against him. The testimony was received, not to prove that Munger was overreached or defrauded by Mrs. Myers in the transaction nor to show that she had not paid the
There is a contention that the letters should be regarded as communications or transactions between the deceased and his son, who is a party to the litigation, and therefore fall within the prohibition of section 320 of the civil code. The letters were identified by the son to whom they were addressed without objection. The defendants made a general objection to the letters, and further that they were hearsay, but the objection now made, that they constituted prohibited communications or transactions between the deceased person and a party to the action, was not brought to the attention of the trial court. To make the admission of such testimony available as error a specific objection should have been made. However, if the objection as made were treated as sufficient the admission of the evidence for the purpose for which it was received would not afford ground of reversal. It has been determined that a party to an action, if otherwise qualified, may testify as to the mental capacity of the deceased person with whom he had the dealings that are involved in.the action. (Grimshaw v. Kent, 67 Kan. 463" court="Kan." date_filed="1903-07-10" href="https://app.midpage.ai/document/grimshaw-v-kent-7894066?utm_source=webapp" opinion_id="7894066">67 Kan. 463, 73 Pac. 92; Harper v. Harper, 83 Kan. 761" court="Kan." date_filed="1911-01-07" href="https://app.midpage.ai/document/harper-v-harper-7900112?utm_source=webapp" opinion_id="7900112">83 Kan. 761, 113 Pac. 300.) The code restriction, it-will be observed, is not directed against the transactions or communications but is- a disqualification of certain witnesses to testify to certain things in certain cases. In one case a transcript of testimony given on a first trial when both parties to the transaction were living was received in evidence at a subsequent trial although one of the parties was then deceased, and it was held that no error was committed in admitting it. (New v. Smith, 94 Kan. 6" court="Kan." date_filed="1915-01-09" href="https://app.midpage.ai/document/new-v-smith-7902312?utm_source=webapp" opinion_id="7902312">94 Kan. 6, 145 Pac. 880.) In Garten v. Trobridge, 80 Kan. 720" court="Kan." date_filed="1909-10-09" href="https://app.midpage.ai/document/garten-v-trobridge-7899004?utm_source=webapp" opinion_id="7899004">80 Kan. 720, 104 Pac. 1067, a letter of a deceased person was held to be admissible, and it was there declared that the disqualification of the code prohibition applied to witnesses and not to evidence. ■ In a later case a witness was permitted to testify to the steps taken towards registering a letter with money enclosed which was
The letters in question, when identified, revealed their own testimony. The statements therein were not personally made to the witness, that is, they were not made face to face nor in the presence and hearing of the witness. No testimony concerning the statements in the letters was given by the witness, but the evidence was derived from another source and does not fall within either the letter or spirit of the code restriction which, as we have seen, is directed against the witness as a witness and not to the testimony as evidence. Testimony of the acts and sayings of Munger tending to show his mental condition, such as is shown by the letters, was competent evidence for the purpose for which it was received since it was obtained from legal sources and not from disqualified witnesses.
Some other objections were made to rulings upon the admission of evidence but we find nothing substantial in any of them.
It is finally contended that the evidence does not support the finding of the trial court. It is impractical to set out the testimony at length, but we conclude that it is sufficient to support the material findings of the court. It tended to show that Munger, who was about seventy-six years of age when the deed was made, was feeble in body and mind some time before the deed was executed and up until his death. It sustains the finding, too, that Mrs. Myers approached him with a proposition to buy his property, and presently took him into her home to care for him and soon had him apparently under her influence and control. While there is testimony to the effect that the consideration named in the deed was paid, other testimony warrants the inference that no consideration was ever received by Munger. There is a finding based upon evidence that Mrs. Myers, who claimed to have paid $950 for the property, offered it for sale within a few days after the deed was made for two-thirds of the specified consideration. There is testimony, too, to support the finding that she not only procured the property
The judgment is affirmed.