201 P.2d 1052 | Kan. | 1949
The opinion of the court was delivered by
This was a proceeding to probate a will. Objections were filed by some of the heirs of testatrix. The probate court admitted the will to probate. On appeal, the district court ordered it admitted. The protesting heirs have appealed.
The petition to probate was in the proper form. Some cousins of testatrix in one group and some half-brothers and half-sisters in another group each filed objections to the probate and alleged that at the time of executing 'the alleged will testatrix was of unsound mind and incapable of knowing or understanding the contents of the will and it was executed under undue influence of the devisees named therein. The two objections were heard together.
Throughout the hearing in the probate and district court and in this court a great deal of emphasis is placed upon an attack which Addie Cross sustained in the latter part of November, 1939. Her trouble was diagnosed by the doctors as hardening of the arteries and thrombosis. On December 12, 1939, she entered Major Clinic, a mental hospital, in Kansas City, Mo. She remained there until February 14, 1940, when Zelma Cross took her back to Jewell City. On April 25, 1940, Addie made the will which is the subject of this litigation. She died of a cerebral hemorrhage on February 17, 1944. On March 10, 1944, Roy Cross petitioned the probate court for the probate of the will and the objections were filed, as already noted. The case was heard in probate court on June 1,1944. Honorable Miles Elson, a practicing attorney at Smith Center, was named judge pro tern because Honorable A. Teeple, a lawyer at Mankato, who was the probate judge, had drawn the will and it became apparent that he would be a witness for the proponents. He did
The case was heard in district court on July 10,. 11 and 12, 1946. A transcript of evidence was filed on January 27, 1947. After the transcript was filed the parties filed written abstracts and briefs and it was orally argued November 7, 1947. On June 12, 1948, the trial court filed its findings of fact and conclusions of law in which the will was ordered admitted to probate. Motions to set aside findings and for a new trial were heard January 17, 1948. They were overruled, judgment entered and the case has been appealed to this court.
The objectors point out-here that the trial judge remarked at the time, he made his findings of fact and conclusions of law that he had read the transcript carefully and had reached a conclusion. They argue that since the court read the transcript and reached the conclusion as to facts that we should do the same, and examine the abstract and weigh the evidence as the trial court did. We shall pay some attention to that point later in this opinion.
The real burden of the appellant’s argument is that the medical testimony they furnished showed that when Addie had her attack in November of 1939 her mentality was so impaired' that she never after that possessed the required mental capacity necessary to make a valid will. The proponents furnished several witnesses who testified she was able to carry on ordinary business transactions." At the outset we shall take note of the evidence of a witness, Irma Nixon, who was an employee of the bank where the trust fund was kept and with whom Addie did most of her banking business. She had known Addie for many years and had been an officer at the bank with whom Addie came most in contact. She did not know much about the stroke Addie was alleged to have suffered; she did know, however, that she went to Kansas City, but did not know for sure when she returned. She testified .that Addie talked to her about making a will in the directors’ room of the bank when no one else was present and she said she wanted to make a will like her father had done so that when she was gone she would know her property would go where she wanted it; that Addie talked to her a number of times about the matter; she told Addie the bank did not write wills, but she should secure the services of an attorney, and Addie asked her to call Mr. A. Teeple, who was an attorney
“Q. Now, did my father ask her anything about who her relatives were, other relatives? A. Yes.
“Q. All right, what did she say? A. She said she had, she named these cousins, and that she had these half brothers and half sisters, but she said, ‘I have helped them.’ ”
This witness was also asked what her opinion was as to Addie’s ability to transact ordinary business and she testified she thought she had that ability.
Several other lay witnesses were called, and testified as to her ability to transact ordinary business.
The first point argued by the objectors is that the court erred in the admission of testimony and in refusing to strike out testimony.
The first point argued here by them is that the court erred when it permitted Irma Nixon to testify that in her opinion Addie had the ability to transact ordinary business and that she had the mentality to know her relatives. Objectors argue that this information was given by the witness without her having had contact enough with Addie to be able to form such an opinion. They cite authorities where we have held that the opinions of this sort of a witness must be based upon facts sufficiently definite to permit the witness to be able to give a correct opinion. (See Fish v. Poorman, 85 Kan. 237, 116 Pac. 898, and Gorman v. Hickey, 145 Kan. 54, 64 P. 2d 587.) There is no doubt about that being the rule.
The rule is that the test of mental capacity to make a will is—
“The test of mental capacity to make a will is that the testator know what property he has, know those persons who are the natural objects of his bounty, and be able to make a reasonable and understandable disposition of such property.”
(See Anderson v. Anderson, 147 Kan. 273, 76 P. 2d 825, syl. ¶ 1.)
Also
“The test of competency to make a will is that the testator know and understand what property he has, know about his relatives and others who may be the objects of his bounty and be able to direct and make disposition of his property with understanding and reason.”
(See In re Estate of Gereke, 165 Kan. 239, 195 P. 2d 323, syl. ¶1.)
Counsel for the objectors state in their brief:
“In the present case there is no testimony that would indicate that Addie Cross knew or understood the objects of her bounty, particularly her destitute half brothers and half sisters, or that she knew and understood the nature and extent of her property, or that she knew and understood the disposition which she purported to make.”
It is difficult to understand why such a statement is made in a brief when the record discloses the testimony such as that given by witness, to which reference has just been made.
“The most serious objections to the admission of hearsay evidence in general arei that noi opportunity has been given for the cross examination of the declarant, and that his statements were made without the sanction of an oath. In those cases where these objections are removed, there is good reason for the relaxation of the strict rule forbidding hearsay testimony. It has long been settled, as one of the exceptions to the general rule, excluding hearsay that the testimony of a witness given in a former action or at a former stage of the same action is competent in a subsequent action or in a subsequent proceeding in the same action where it is shown that the witness is dead or that a valid legal reason exists for his nonproduction, that the parties and questions in issue are substantially the same, and that such former testimony can, be substantially reproduced upon the second hearing.” (2 Jones on Evidence, 1913 ed., sec. 336, p. 780.)
See, also, Gannon v. Stevens, 13 Kan. 447; also Solomon Rld. Co. v. Jones, 34 Kan. 443, 8 Pac. 730, 22 C. J. 442.
We hold it was proper for Judge Elson to be permitted to testify as to the testimony of Mr. Teeple when the case was tried before him as probate judge.
What has already been said disposes of the objectors’ argument that the court erred in overruling the demurrer of appellants to the evidence of appellees.
There are further arguments made as to motions of the objectors for particular findings of fact. We hold they are without merit.
Objectors also argue that the testatrix was limited, on account of her father’s will in the disposition she could make of the trust fund, to what was equitable and right in the premises. They argue the probate court and the trial court and now this court should hold that Addie was limited in her disposition of the trust fund by the language of her father’s will and we should examine whether the disposition she made of her property was equitable and right in the premises. As a matter of fact, under her father’s will she could make whatever disposition she thought was equitable and right.
When we hold that she had sufficient mental capacity to make a will, we hold that whatever she thought was equitable and right was equitable and right as far as the will was concerned.
The court made the following findings of fact:
“1. On April 25th, 1940, when the will in question was made and signed Addie Cross knew what property she owned and that she was given by the will of her father the right! to dispose of the property left to her in trust by her father’s will.
“2. On April 25th, 1940, before the will was drawn Addie Cross told Judge A. Teeple, the scrivener who drew her will, of her property and how she wanted to dispose of it.
“3. Judge A. Teeple drew the will disposing of the property of Addie Cross as requested by her.
“4. Addie Cross on April 25th, 1940, when the will in question was made, signed and acknowledged by her, had sufficient mental capacity to make the will.”
These findings were supported by the evidence and the will was properly ordered admitted to probate.
The judgment of the trial court is affirmed. ■