60 P. 318 | Kan. | 1900
The opinion of the court was delivered by
In this action the validity of a will was involved. It was attacked for want of mental capacity in the testator, undue influence, and uncertainty in the description of real estate devised.
Much testimony was introduced, given by non-expert witnesses who were acquainted with the testator, who gave their opinions as to his sanity and mental capacity. In the admission of such testimony the court required that the opinion given should be based upon the facts which each witness had detailed on the stand, and confined their conclusions to such specific facts. This ruling is alleged to be erroneous. As we understand the argument for plaintiff in error, it is claimed that such witnesses should have been permitted to give opinions as the result of their observations, without stating any of the facts upon which they were based. This certainly would be unsatisfactory and of doubtful aid to the court or jury trying the question of mental capacity. There would be nothing to indicate the extent of the witnesses’ knowledge of the habits, manner or peculiarities of the person regarding whose capacity they expressed an opinion. The authorities are in accord with the ruling made by the trial court. The giving of such opinions at all by non-experts is a rule of necessity. If all the facts on which the opinion is based could be placed before the jury, the latter
The devise to Maryetta Leonard is in the following language : “All the land I now have in the northwest quarter of section twenty (20), township thirteen (13), range seventeen (17), containing about seventy-two (72) acres more or less. Also one rod on the north side of section twenty (20) not heretofore willed or deeded to any one.” The testator did not own sev'enty-two acres of land in the northwest quarter of section 20, mentioned in the will, but did own a tract of that size in the southwest quarter of section 20. Counsel for plaintiff in error contends that this erroneous description cannot be aided by any rule of construction which looks beyond the expressed description
In the case of Cleveland v. Spilman and Another, 25 Ind. 95, a devise was made as follows: “My land, being the south half of the northeast quarter of section 36, township 3 south, of range 12 east.” The testator never owned the tract described, but did own the south half of the northwest quarter of the section. It was held that by the use of the words “my land” a particular description was added which satisfied the court as to the intention of the testator. In Judy et al. v. Gilbert, 77 Ind. 96, the testator employed the words “my land.” It was held that an erroneous description following did not make nugatory the devise. See, also, Funk v. Davis et al., 103 Ind. 281, 2 N. E. 739. In this case the language of the will itself furnishes the basis for determining the particular real estate which the testator intended should go to Maryetta Leonard at his death.
The one rod described as being on the north side of section 20 was referred to in the devise to Mrs. Leon