Curtis v. Freden, 48884

• Decision Date: 28 October 1978
• Docket Number: No. 48884,48884
• Parties: Opal N. CURTIS and Noble E. Freden, Appellants, v. Dean S. FREDEN and Marion J. Freden, Appellees.
• Court: Kansas Supreme Court

Page 993

585 P.2d 993

224 Kan. 646

Opal N. CURTIS and Noble E. Freden, Appellants, v. Dean S. FREDEN and Marion J. Freden, Appellees.

No. 48884.

Supreme Court of Kansas.

Oct. 28, 1978.

Syllabus by the Court

In an action to set aside a deed to real property on the grounds of incapacity of the grantor, undue influence and breach of a confidential relationship by the grantees, and to bar the grantees from any share in grantor's estate due to an alleged breach by the grantees of the provisions of K.S.A. 59-618, the record is examined and it is Held : The trial court did not commit error in (1) refusing the admission of certain expert testimony, (2) finding the grantor competent at the time of the execution of the deed, (3) finding that no confidential relationship existed between the grantor and the grantees, (4) finding no breach of duty by the grantees under the provisions of K.S.A. 59-618 and (5) entering judgment for the grantee defendants.

R. Edgar Johnson, of Johnson, Bengtson, Waters & Thompson, Chartered, Junction City, argued the cause and Roger D. Thompson, Junction City, of the same firm, was with him on the brief for appellants.

Charles A. Chartier, Junction City, argued the cause and was on the brief for appellees.

HOLMES, Justice:

This was an action to set aside a deed from a widowed mother (Blanche Freden) to the defendants Dean S. Freden, her son, and Marion J. Freden, his wife, as joint tenants. The plaintiffs, Opal N. Curtis and Noble E. Freden, were also children of Blanche Freden and, together with Dean, constituted all of her heirs at law. The deed was executed by Blanche on April 30, 1971, and conveyed 80 acres of farm land in Oklahoma. Blanche died May 11, 1971, at the age of eighty, and the Oklahoma farm property constituted the bulk, if not all, of her estate. Blanche was a native of Oklahoma but moved to Wichita were she raised her family of three children. Opal married and moved to Missouri and Noble married and settled in Colorado. Dean and his wife, Marion, continued to live in Wichita close to Blanche until 1963 when Dean took a a job in Junction City. Shortly after Dean moved to Junction City, Blanche was swindled by a con artist in Wichita and lost most of her life's savings. In 1965, Dean and Marion prevailed upon Blanche to move to Junction City where she lived alone in an apartment until her death. Dean and Marion, being in the same city, saw Blanche regularly and did many things to assist her in her day-to-day living and in the handling of her farm property in Oklahoma. They provided her with transportation when she wanted to go to the doctor, shopping or other places. They assisted her in getting her income tax information together and in taking her to her accountants and attorney and did many things that one would expect a devoted child to do for an elderly parent. Opal and Noble, not living in close proximity to Junction City, visited their mother on occasion but not often.

Upon Blanche's arrival in Junction City she established a checking and savings account with Dean's name on both accounts. She also obtained a safe deposit box in the names of Blanche, Dean and Marion. The accounts and safe deposit box were not utilized by Dean or Marion during the lifetime of Blanche. In 1966, Blanche consulted Robert K. Weary, an attorney in Junction City, for the preparation of a will. Dean was named as executor and trustee in the will, which provided for an ultimate distribution equally to Dean, Opal and Noble. Mr. Weary continued to act as Blanche's attorney until her death although he never represented Dean or Marion.

On April 22, 1971, Blanche became seriously ill and was taken to the hospital by ambulance. Dean arranged for her admittance and she was placed under the care of Dr. M. L. Wisby, D. O., who was Blanche's regular doctor, and Dr. Maurice F. Priddy, D. O., a partner of Dr. Wisby. Blanche was suffering from cancer and remained in the hospital until her death on May 11, 1971. On April 30, 1971, Mr. Weary prepared a power of attorney naming Dean as attorney-in-fact for Blanche and a warranty deed conveying the Oklahoma farm land from Blanche to Dean and Marion. These instruments were picked up at Weary's office by Dean and executed the same day by Blanche in the presence of Donald E. Hamilton, a notary public and employee of Central National Bank in Junction City. At the time of her death, Blanche's 1966 will remained in her safe deposit box and was not removed by Dean until approximately one and one-half years after her death.

Plaintiffs contend that their mother was incompetent or incapacitated to the point that she could not legally execute the deed in question. In the alternative they contend the deed was executed as a result of undue influence exerted upon their mother by Dean and Marion. Plaintiffs also contend that Dean occupied a confidential relationship with his mother, that the deed was executed at a time when she was aged, weak and infirm, that under such circumstances there is a presumption of undue influence and Dean had the burden of proof to overcome such presumption and also had the burden to show Blanche had the benefit of independent advice. Finally, plaintiffs assert that as Dean had access to Blanche's original will and did not offer it for probate, he should be barred from any interest in the estate under the provisions of K.S.A. 59-617, Et seq.

The case was tried to the court which found in favor of the defendants on all issues. Plaintiffs have appealed, asserting several points as error.

This appeal was taken under our rules in existence prior to January 10, 1977. At the outset we feel constrained to comment that the briefs furnished to the court, by both parties, do not conform to the requirements of old rule 8(B ), subsections 2 and 4, 214 Kan. xxvi, in that the briefs are not keyed to the printed record, making it extremely difficult and time-consuming when reference to the record is required. In addition, the printed record was not keyed to the transcript. In view of the condition of the briefs and record, it was deemed necessary for the court to obtain the transcript of all proceedings and make an independent examination thereof.

We will consider plaintiffs' points on appeal in the order in which they were presented.

"1. It was error to deny the medical doctors treating Blanche Freden the right to express their opinions concerning her capacity and competency to execute a deed to real estate while under the doctors' care."

During trial the court heard testimony from Blanche's doctors concerning her physical and mental well-being during the period of her last illness. Dr. M. L. Wisby, D. O., had treated Blanche for several years prior to her death and during her stay in the hospital from April 22, 1971 to April 25, 1971, when he left on vacation. He returned May 7, 1971, and treated her until her death on May 11, 1971. During the time from April 25th to May 7, 1971, his partner, Dr. Maurice F. Priddy, D. O., treated Blanche. Although the trial judge permitted Dr. Wisby to present evidence of Blanche's general condition and state of mind, he refused, on direct examination, to allow him to state his ultimate conclusion as to his opinion of Blanche's mental competency on April 30, 1971, the date the deed was signed. On cross-examination, however, the following took place:

"Q. You did not see her until that time on the 23rd, until the 7th of May?

"A. I did not.

"Q. So you do not know her condition, mental state on April the 30th, 1971?

"A. No."

Dr. Wisby was examined at length and his testimony covers forty-two pages of the transcript. The court allowed a wide latitude in the questioning of the doctor and much of his testimony was based upon the nurses' notes and other hospital records. All of the hospital records were admitted in evidence, without objection, and were available to both doctors during their testimony.

Dr. Priddy, the attending doctor from April 25, 1971, to May 7, 1971, also testified. Again the trial court allowed wide latitude in the scope of the examination. The testimony covers thirteen pages of the transcript and Dr. Priddy indicated that, as his treatment of Blanche occurred some four years before, his memory was somewhat hazy. He also testified that he made no notations or any records concerning Blanche's mental condition during the time she was under his care. He was not allowed to testify as to his ultimate conclusion of Blanche's competency on April 30, 1971.

K.S.A. 60-456(D ) provides:

"Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact."

As a general rule, the qualifications of an expert witness and the admissibility of his testimony are matters for the determination by the trial court in the exercise of its discretion. Newton v. Hornblower, Inc., 224 Kan. 506, 522, 582 P.2d 1136 (1978); Plains Transp. of Kan., Inc. v. King, 224 Kan. 17, 21, 578 P.2d 1095 (1978); State v. Brooks, 217 Kan. 485, 487, 536 P.2d 1365 (1975); Ziegler v. Crofoot, 213 Kan. 480, 516 P.2d 954 (1973).

While the excluded testimony might very well have been admitted by the trial court, we cannot say it was an abuse of discretion to refuse the opinion testimony of Drs. Wisby and Priddy.

In Atkins v. Bayer, 204 Kan. 509, 464 P.2d 233 (1970), in considering the failure to admit opinion evidence, this court stated at page 511-512, 464 P.2d at page 236:

"However, the fact that it was not does not require reversal. One seeking reversal of a judgment because of exclusion of evidence has the burden of demonstrating prejudice as well as error in the ruling complained of. We think any error in the exclusion was rendered harmless because of other testimony given by the expert witness."

While Atkins...