Grimshaw v. Kent

• Decision Date: 10 July 1903
• Docket Number: 13,237
• Citation: 67 Kan. 463,73 P. 92
• Parties: HOWARD L. GRIMSHAW et al. v. I. L. KENT, as Administrator, etc
• Court: Kansas Supreme Court

73 P. 92

67 Kan. 463

HOWARD L. GRIMSHAW et al. v. I. L. KENT, as Administrator, etc

No. 13,237

Supreme Court of Kansas

July 10, 1903

Decided July, 1903.

Error from Miami district court; W. H. SHELDON, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACT--Evidence of Mental Capacity. Where the issue tar be tried relates to the mental capacity of one to enter into a contract, non-expert witnesses who have been thrown in close and intimate relations with the person whose mental capacity is questioned, and who have had ample opportunity of observing the conduct of such person, may give in evidence their opinion as to the mental capacity of such person at the time the contract was made.

2. CONTRACT--Transactions with Deceased Person. In an action by an administrator of the estate of a deceased person, the defendants, if otherwise qualified, may testify as to the mental capacity of the deceased at the time the contract is claimed to have been made.

3. CONTRACT--Privileged Communications--Attorney and Client. A lawyer who prepared a contract at the request of such deceased person may be permitted to give in evidence a conversation with the deceased at the time the contract was executed, for the purpose of showing that the deceased knew and understood the contents of the contract, if the relation of attorney and client did not exist between the witness and such deceased person.

J. E Maxwell, and W. T. Johnston, for plaintiffs in error.

Frank M. Sheridan, for defendant in error.

POLLOCK J. All the Justices concurring.

OPINION

POLLOCK, J.:

This action was brought by I. L. Kent, administrator of the estate of Elizabeth C. Grimshaw, deceased, against Howard L. Grimshaw and Olive A. Grimshaw, his wife, son and daughter-in-law of Elizabeth C. Grimshaw, to recover the sum of $ 1950, alleged to be money of the estate in the hands of defendants. As shown by the record, defendants lived at Winslow, Ariz. Deceased had placed this money in their hands to invest for her, higher rates of interest being obtainable in Arizona than at the home of deceased in Kansas. In November, 1901, the following contract was executed by the parties:

"This agreement, made and executed and entered into this 3d day of May, A. D. 1901, by and between H. L. Grimshaw and Olive A. Grimshaw, his wife, of the town of Winslow, Navajo county, territory of Arizona, the parties of the first part, and Elizabeth C. Grimshaw, widow, of Paola, Miami county, state of Kansas, the party of the second part:

"WITNESSETH, That the parties of the first part, for and in consideration of the sum of nineteen hundred dollars, lawful money of the United States, to them in hand paid, the receipt whereof is hereby acknowledged and confessed, do hereby contract and agree that they (the parties of the first part), and each of them, jointly and severally, their heirs, executors, and administrators, shall and will pay, in lawful money of the United States, to the party of the second part, during her natural life, the sum of twenty dollars per month, payable each and every month at such place as the party of the second part may be located.

"It is hereby expressly understood and agreed that this is a contract wherein the parties of the first part bind themselves, their heirs, executors, and administrators, to pay to said party of the second part an annuity in the sum of two hundred and forty dollars per annum, payable monthly in instalments of twenty dollars for each and every calendar month during the life of the beneficiary, the said party of the second part.

"In the event of the failure of the said parties of the first part to faithfully carry out the conditions above set out and for a period of two months, then and in that event the parties of the first part contract and agree that the full sum of $ 1900 shall, at the option of the party of the second part, become immediately due and payable to the said second party, and the said sum of $ 1900 is hereby stipulated and agreed to between the parties hereto as fixed, settled and liquidated damages for such default, and proceedings may immediately be had by the said second party against said parties of the first part, their heirs, executors, or administrators, for the recovery of said sum.

"IN WITNESS WHEREOF, We have hereunto set our hands and seals, the day and year above written.

MRS. E. C. GRIMSHAW. (SEAL.)

H. L. GRIMSHAW. (SEAL.)

OLIVE A. GRIMSHAW. (SEAL.)"

This contract and compliance with its terms were pleaded by def...