Goode v. Cummings

• Decision Date: 09 February 1924
• Docket Number: 25,045
• Citation: 115 Kan. 516,223 P. 317
• Parties: MRS. GEORGE GOODE et al., Appellants, v. DR. J. C. CUMMINGS et al., Appellees
• Court: Kansas Supreme Court

223 P. 317

115 Kan. 516

MRS. GEORGE GOODE et al., Appellants, v. DR. J. C. CUMMINGS et al., Appellees

No. 25,045

Supreme Court of Kansas

February 9, 1924

Decided January, 1924.

Appeal from Sumner district court; OLIVER P. FULLER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

WILL--Action to Set Aside--Undue Influence--Unsound Mind--Will Upheld.In an action to set aside a will on the ground of undue influence and that the testatrix was of unsound mind, the evidence held to support a general finding upholding the will.

Ed. T Hackney, of Wellington, for the appellants.

W. W. Schwinn, E. J. Taggart, and John Bradley, all of Wellington, for the appellees.

OPINION

HOPKINS, J.:

The action was one to set aside a will on account of undue influence and because the testatrix was of unsound mind.Defendants prevailed and plaintiffs appeal.

Complaint is made that the court erred in rejecting evidence, in finding generally for defendants and in overruling plaintiffs' motion for a new trial.What the rejected evidence was is not shown.It was not offered on the motion for a new trial, and, therefore, forms no basis for reversing the judgment.(R. S. 60-3004;Martin v. Ott,114 Kan. 419, 424, 219 P. 275.)No new evidence was introduced at the hearing of the motion for a new trial.The trial court simply adhered to the judgment previously rendered.There remains, therefore, only the question whether the findings and judgment of the trial court are supported by sufficient evidence.

The will reads:

"Last Will and Testament of C. A. Davis, A Widow.

"Be it known that I, C. A. Davis, a widow, being on this 25th day of January, 1922, of sound mind and infirm of body, do make, publish and declare this as my last will and testament.

"After payment of expenses of my last sickness and funeral expenses, I will and bequeath all property of every kind, wherever situated, to my friend who has been most kind, to Dr. J. C. Cummings, and I appoint A. L. Miller as my executor.

"In Witness Whereof, I have hereto signed my name in the presence of F. A. Dinsmoor and Ethel Miller whom I have requested to witness this my last will.

C. A. DAVIS."

There was testimony showing that the testatrix, Mrs. Clarisa Davis, was a very aged woman, something over eighty years old; that she had, four years previous to her death, suffered an injury in an explosion of natural gas, and that she was never afterwards competent to do any business; that she stated that she had never been right in her head since the explosion; that about three weeks prior to her death, she fell and suffered an injury; that she was not, after that time, competent to make a will; that she was nervous and could not sleep nights; that she suffered a great deal during her last illness; that she did not have capacity to do business; that the will was written on Wednesday about noon, and that she died on Thursday night.

On the other hand there was testimony showing that she had capacity to make a will; that she said that Doctor Cummings had been kind to her and she desired to leave her property to him.

James Lawrence, a witness for defendants, stated that he had known Mrs. Davis since 1883; was her attorney; that she told him once she wanted him to draw her will and did not intend to give her property to her relatives."Concerning a division of her property, I asked her if she had relatives in the East and if she had become reconciled with them.She said no, she would never give them a cent.She told me that more than once."

F. A. Dinsmoor, a witness for defendants, who drew the will for testatrix, stated among other things, that he arrived at her house on the morning of January 25; that he spoke to her, and then said, "'Well, Mrs. Davis, I understand you wanted me to come over here and write your will.'She said, 'Yes, if there won't be any trouble about it.'I told her there never had been any way devised to keep people from litigation, 'but,' I says, 'my understanding of your condition, this is your property and you have a perfect right to give it anywhere you want to--make any disposition of it.''Yes,'she says, 'it is my property.'I says, 'You have no living husband, have you?'She said, 'No.'I says, 'No children?'She said, 'No.'I said, 'Have you any near relatives, such as brothers and sisters?'She says, 'No one that I care anything about, and no one that cares anything for me.'"

"Q.Did you ask her about what she wanted to do with the property--what provisions she wanted in the will?A.Yes, I asked her to whom she wanted to leave her property when she was done with it.

"Q.What did she say to that?A.She said, 'To him that has been good to me.'I says, 'That is indefinite.'She says, 'Doctor.'I says, 'Doctor Cummings?'She says, 'Yes, he has been good to me.'"

Witness testified Mrs. Davis talked rather low and that his hearing is not acute, and that he had to get close to her in order to hear her distinctly, but that she appeared to hear him all right.Deceased stated she owned no other property than her home, also said she had money and that it was in Derrington's bank.She said she wanted Luther Miller for executor.Witness, after writing will, read it over to her, and she said that was what she wanted.She signed the will without any assistance.Witness thought her mind was all right, but she was sick, but complained of no pain.Answered all questions intelligently and talked rationally, made no irrational statements.No person suggested anything to put in will."Was there at the house about two hours, finished writing the will about dinner time and got up to put on overcoat and Mrs. Davis said, 'You better stay for dinner, they are getting dinner out there.'On her request I took the will to the bank and put it in an envelope and left it.Think testatrix knew what property she had, what she was doing with it, and that she knew her relatives and that she intended to do what she did."

It would serve no useful purpose to further detail the evidence of a large number of witnesses for both parties whose testimony was heard and whose attitude on the stand was observed by the trial court.The general finding and judgment in favor of the defendants implies a consideration by the trial court of all competent evidence, and that the defendants met all burdens imposed upon them.It has been repeatedly held that where there is substantial testimony to support the finding or verdict of the trier of the facts, the finding or verdict will not be set aside.

From a general finding of the trial court it must be presumed that all controverted matters are established in favor of the party for whom the court finds.(Mason v. Harlow,92 Kan. 1042, 142 P. 243;Glenn v. Railroad Co.,94 Kan. 83, 145 P. 865;Horine v. Hammond,94 Kan. 579146 P. 1144;Samuel v. Thomas,95 Kan. 742, 149 P. 395;Allen v. Snodgrass,95...