Chaffee v. Chaffee

• Decision Date: 07 April 1923
• Docket Number: 24,154
• Citation: 214 P. 618,113 Kan. 254
• Parties: THOMAS LEROY CHAFFEE et al., Appellees, v. (CHARLES CHAFFEE, Appellee), WANEDO CHAFFEE KAUFMAN, WALTER M. NEWMAN et al., Appellants
• Court: Kansas Supreme Court

214 P. 618

113 Kan. 254

THOMAS LEROY CHAFFEE et al., Appellees, v. (CHARLES CHAFFEE, Appellee), WANEDO CHAFFEE KAUFMAN, WALTER M. NEWMAN et al., Appellants

No. 24,154

Supreme Court of Kansas

April 7, 1923

Decided January, 1923.

Appeal from Rush district court; ROSCOE H. WILSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WILL--Action to Set Aside--Mental Incapacity of Testator--Competent Witness. The rule which prevents a person from attacking the validity of a will when he has accepted and has not returned a partial distribution of property pursuant to its terms, does not render such person incompetent as a witness to testify on behalf of parties who have a lawful right to contest the validity of the will.

2. SAME--Incapacity of Testator--Evidence of Physicians. Objections to the testimony of a physician touching the mental incompetency of a testator, when such physician's information was acquired through his professional attendance on the testator, is waived when the defendant who objects to such testimony introduces as witnesses on his own behalf other physicians who similarly acquired their information and who likewise testify as to the mental capacity of the testator.

J. E Andrews, J. W. McCormick, both of LaCrosse, and Harry Brice, of Cimarron, for the appellants.

F. L. Martin, John M. Martin, and James N. Farley, all of Hutchinson, for the appellees.

OPINION

DAWSON, J.:

This was an action by the grandchildren of the late Samuel Chaffee, of Rush county, to set aside his will.

The defendants were Charles Chaffee and Wanedo Chaffee Kaufman, son and daughter of Samuel; also the executor, and a lodge of Odd Fellows to which the will gave a bequest of a thousand dollars.

The will made no mention of the plaintiffs, who were the children of a son of Samuel, who died in 1893. The plaintiffs alleged that when the will was made, about eighteen days before the death of Samuel, the testator was about 92 years of age, feeble, sick, senile, and incompetent to make a will. They also alleged undue influence.

The answer of Charles admitted that the testator was not of sound and disposing mind when the will was made and for long prior thereto, and that he was not competent to make a will.

The answers of the other defendants were general denials.

There was plenty of testimony pro and con, so that the issues of fact might have been determined either way.

An advisory jury specially found that when the will was signed Samuel was not of sound and disposing mind, and that he was under undue influence at the time he signed it. On motion of some of the defendants the trial court refused to set aside the first finding but did set aside the second; and made findings of its own--

"1. That Samuel Chaffee did not have sufficient mental capacity to make a will at the time the will in question was executed.

"2. That no undue influence was exercised on Samuel Chaffee at the time of the making of the will."

Judgment was accordingly entered, setting aside the will. Some of the defendants appeal.

The first error urged relates to the admission of the testimony of Charles Chaffee. It seems that the executor had made a partial distribution under the will before this action began or before it was tried, and that Charles had received his portion of such distribution. Because of this, it is argued that he was an incompetent witness. While there is a rule of law that a party who takes under a will cannot attack the will without first surrendering whatever he has received under it, yet such rule is inapplicable here. It was the grandchildren who are entitled to their deceased father's share of Samuel's estate who were attacking this...