Gorman v. Hickey

• Decision Date: 23 January 1937
• Docket Number: 33100.
• Parties: GORMAN et al. v. HICKEY. [*]
• Court: Kansas Supreme Court

64 P.2d 587

145 Kan. 54

GORMAN et al. v. HICKEY. ^[*]

No. 33100.

Supreme Court of Kansas

January 23, 1937

Syllabus by the Court.

In will contest, heirs contesting will held entitled to waive statutory privilege forbidding physician to testify to facts acquired professionally touching testamentary capacity of testator, notwithstanding that executor opposed such waiver (Rev.St.1923, 60-- 2805, subd. 6).

Rule that litigant is bound by answer of witness elicited on cross-examination does not apply where witness is adverse litigant.

In will contest, answer of executor on cross-examination by contestants held not to preclude contradictory testimony by one of contestants in rebuttal, since rule that litigant is bound by answer of witness elicited on cross-examination does not apply where witness is adverse litigant.

Nonexpert witnesses held entitled to testify to opinion on question of testator's mental capacity based on pertinent facts within their knowledge.

In will contest, opinion evidence of five nurses who attended testator in last illness, during which he made will, that testator did not have sufficient mental capacity to make will when admitted into hospital or at any time for several weeks thereafter, held admissible.

Evidence held to justify judgment setting aside will on ground of lack of testamentary capacity and undue influence.

In an action by heirs at law to contest a will on the grounds of testamentary incompetency and undue influence, in which the executor who was likewise the principal beneficiary was the defendant, the record examined, and held: (1) The plaintiffs as heirs were entitled to waive the statutory privilege which forbids a physician to testify to facts he has acquired professionally touching the testamentary capacity of the testator, although the executor opposed such waiver. (2) The rule that a litigant is bound by the answer of a witness elicited on cross-examination does not apply where the witness is the adverse litigant. (3) Rule followed that on the question of a testator's mental capacity nonexpert witnesses may give testimony and opinion evidence based upon pertinent facts within their knowledge. (4) The trial court's finding of fact that testator lacked testamentary capacity at the time the contested will was made was supported by sufficient evidence; and the finding of fact that the making of the will was effected through undue influence was a fair inference derivable from all the evidence including the evidential circumstances.

Appeal from District Court, Dickinson County; Cassius M. Clark Judge.

Will contest by Frank Gorman and others against Patrick M. Hickey as an individual, and as executor of the estate of William Hickey, deceased. Judgment for plaintiffs, and defendant appeals.

C. W Burch, B. I. Litowich, La Rue Royce, L. E. Clevenger, and E S. Hampton, all of Salina, for appellant.

J. V. Humphrey and A. S. Humphrey, both of Junction City, and Matt Guilfoyle and Thornton D. Scott, both of Abilene, for appellees.

DAWSON Justice.

This was an action to contest the will of the late William Hickey of Dickinson county, a single man, who died on January 12, 1935.

His heirs were his only surviving brother, Patrick M. Hickey, of Junction City, defendant herein, and the three children of his only sister, the late Catherine Gorman of Chapman, who prosecute this action as plaintiffs.

The late William had amassed an estate valued at over $80,000, about half in land and half in government bonds. Part of this estate had inured to him as heir of others of his family whom he had outlived.

The common ancestors of these litigants were Dennis Hickey and Bridget, his wife, who came to Dickinson county in 1869. They had seven children, Cornelius, William, John, Catherine, Patrick, and two others who names do not appear in this record. The family had the usual pioneer habit of land acquisition, and some of them died intestate leaving their properties to their surviving heirs. Cornelius and the two unnamed children died intestate, unmarried, and without issue prior to 1901. Dennis, the father, died in 1903. By that time the daughter Catherine had married a man named Gorman and resided on a farm near the Hickey homestead. Patrick M. Hickey, one of the sons of Dennis, married and settled in Junction City about 1900, where he has ever since engaged in business as a hardware merchant.

The mother, Bridget, and two of her sons, John and William, both of whom were single, continued to live on the original farm homestead. She died in 1916. John and William continued to farm all of the considerable Hickey lands, irrespective of which of the Hickeys held the title thereto. The title to two quarter sections stood in William's name. John Hickey died in March, 1925, and thereafter William lived alone on the family homestead until December 23, 1931, when his brother Patrick happened to call and discovered him indisposed--how seriously is a subject of dispute in this lawsuit. Patrick took William to a doctor's office in Junction City and then to a hospital, where William remained for about four months. Thereafter William made his abode with his brother Patrick until his death nearly three years later.

The day after William was taken to the hospital the will in question was made. By its terms all his property was devised to Patrick except a bequest of $100 to his sister Catherine. She then was, and for two or three years previously had been, in poor health. She died on December 25, 1932.

Following the death of William, the will in controversy was admitted to probate, and this action to contest was begun. On joinder of issues the cause was tried by the court without a jury.

In summary, the evidence on plaintiffs' behalf tended to show that William had never had a normal mentality; that he was always so shy and diffident that he would go and hide when strangers, even neighbors, called at the farm home; that he practically never did business on his own responsibility but depended on other members of the family to guide and direct him; and that he invariably obeyed them implicitly. Until his brother John died, the latter had looked after William's affairs and caused them to prosper. When John died Patrick looked after William's more important affairs, such as the leasing of William's lands and signing such leases "P. M. Hickey for William Hickey." On one occasion a neighbor, George Signer, rented some land from William personally, took possession, and apparently placed some sort of house on the property. When Patrick heard of it, he ordered Signor to move. The record reads:

"Q. State what happened. A. Pat told me to move it off again.

"Q. What did he say about it? A. He said Bill wasn't capable of doing business.

"Q. Yes. And what did you do then? A. I just moved it off."

Patrick testified that such a conversation never occurred; but, of course, this court cannot discredit oral testimony to which the fact-finding tribunal, the trial court, gave credence.

The testimony for plaintiffs also tended to show that when Patrick brought his brother to the doctor's office he told the latter, Dr. Carr, that he had called at the Hickey farm that day, December 23, 1931, and had found his brother William lying on the floor by his bedside, apparently not knowing what he was about, and unable to get up alone.

At the hospital William was under the ministrations of various nurses, all of whom, as well as Dr. Carr, gave testimony in detail touching his limited intelligence, his physical and mental weakness, which testimony, if competent and given full credence, tended strongly to show that when admitted into the hospital and for many days, perhaps weeks thereafter, William was altogether lacking in testamentary capacity. It also showed his disposition to be that of an obedient child who never spoke except when spoken to.

Over objection, the Hickey family doctor, who had occasionally treated William for various ailments over a long period of time, testified that he was always met by one of the family and gave his instructions to them.

"Q. Why did you take pains to leave your directions with John or some member of the Gorman family? A. Because I did not regard his mental capacity equal to the understanding and the proper carrying out of the directions. ***

"Q. Now what was that mental condition? A. It was one of retarded mental development, never assuming the condition of full manhood, which, in a word, is described best by saying he was an adolescent. ***

"Q. State whether you ever heard him at any time express any sentiment or opinion upon anything? A. I never did in my life. ***

"Q. State whether or not you formed an opinion as to his mental capacity to carry on any business transaction of any importance? A. Yes, sir.

"Q. Now you may state what that opinion is as to his mental ability to carry on any business transaction. A. Accepted in the general terms, I wouldn't regard him as capable of carrying on any business transaction.

"Q. State whether or not in your opinion he had sufficient mental capacity to understand the nature of his property and the value thereof, assuming that he had considerable property, both real and personal; what is your opinion as to whether he would have the mental capacity to comprehend his property and the nature of it and the value of it? A. I think he would not comprehend it."

Cross-examination:

"Q. Now, doctor, you said that Will had the mind of an adolescent? A. Yes, sir.

"Q. What age do you mean when you say adolescent? A. Well, in the female it will run around, their time of puberty, you might say, is from eleven to twenty-one, and in the male oh, fourteen to twenty-four.

"Q. You think that William's age, then, would be between fourteen and...