25 Kan. 7 | Kan. | 1881
The opinion of the court was delivered by
This was an action under the statute, brought by plaintiffs Emily J. Grover, Alice F. Rich and Edwin Bowker, children of Caroline E. Bowker, deceased, against William- H. Bowker and Henry H. Bowker, and also against Henry H. Bowker as executor of the last will and testament of Caroline E. Bowker, deceased, to have her will, which had been probated, set aside, and the probate thereof vacated.
No brief has been filed in this court on the part of the defendants, although the additional time allowed therefor has long since expired; but as we cannot longer delay the disposition of the case, we are compelled to pass upon the questions on the presentation made to us by plaintiffs, without the aid of argument or suggestion from the opposing parties. On the trial, Henry H. Bowker, one of the defendants, testified “That he went to Lane on the 4th day of July. When he returned she [Mrs. Caroline E. Bowker] was in an excited condition; that she told him she had had a conversation with Frank Bowker [one of her sons], and that he had become violent and abusive in his language toward her with reference to the disposition of her property.” The plaintiffs objected to the witness testifying as to any communications had personally with the testatrix, on the ground that he was incompetent to testify to such communication under §322 of the code, which objection the court overruled, and permitted the evidence to go to the jury. The plaintiffs then moved the court to withdraw the evidence from the jury, on the ground that it was irrelevant, incompetent and immaterial, which motion was also overruled. Sec. 322 reads as follows:
Under the provisions of this section, the court committed error in admitting the evidence of communications with the deceased. The witness was not merely an executor, but also personally interested as a defendant. Under the will contested in the action, the witness and his son, William Henry, were the sole devisees. It does not appear that the testatrix left any personal estate. The plaintiffs, although not named in the will, were heirs-at-law of the testatrix, while the witness can only claim title to the real estate by virtue of the will. The witness acquired his title, if he had any, to the subject-matter underlying the cause of action immediately from the deceased. While the action was a contest over the will, the purpose of the proceeding was to defeat the title of the witness and hisp son given by the will, and thereby have the real estate apportioned among all the heirs-at-law in accordance with the provisions of the statute relating to descents and distributions. Within the spirit of § 322, the defendant ought not to have been permitted to prove by his
After the instructions were given, the court delivered to the jury two special questions of fact, and directed them to return, as their verdict, answers to the same. The questions were: “Was the deceased, Caroline E. Bowker, on the 24th day of July, 1878, at the time the instrument propounded as her last will and testament purports to have been made, of sound mind and memory? If you answer the above interrogatory in the affirmative, then you will answer: ‘Did Caroline E. Bowker then execute said instrument as her last will and testament, and was the same then and there in her pres
The instructions seem to have been properly given, and no error appears in the other proceedings, except in the order allowing the defendant to open and close the case. Under our practice, the party on whom rests the burthen of the issues is to first produce his evidence. (Code, § 275.) In this case the burthen was on the plaintiffs, and they ought not to have been deprived of the affirmative. We need not make further comment.
The judgment of the district court will be reversed, and the case remanded for a new trial.