Johnson v. Donley

• Decision Date: 09 May 1931
• Docket Number: 29,881
• Parties: CARL ELOF JOHNSON et al., Appellees, v. W. A. DONLEY, as an Individual and as Executor of the Last Will and Testament of John August Johnson, Deceased, Appellant
• Court: Kansas Supreme Court

299 P. 270

133 Kan. 73

CARL ELOF JOHNSON et al., Appellees, v. W. A. DONLEY, as an Individual and as Executor of the Last Will and Testament of John August Johnson, Deceased, Appellant

No. 29,881

Supreme Court of Kansas

May 9, 1931

Decided January, 1931.

Appeal from Saline district court; DALLAS GROVER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WILLS--Action to Contest--Failure to Make Executor Party Within One Year. In an action to set aside a will, timely begun against defendant as sole beneficiary, on the grounds of testator's want of testamentary capacity and undue influence, where the sole beneficiary was also the executor of the will, the fact that defendant as executor was not formally made a party within one year after the probate of the will was not fatal to the action, the cause of action not having been changed or enlarged in any respect by that addition of parties litigant.

2. LIMITATION OF ACTIONS--Contest of Will--New Parties After Expiration of One Year. Where an action to contest a will is timely begun by service of summons on an indispensable party the statute of limitation is thereby effectively tolled as to all concerned who are afterwards made parties to the litigation, where the cause of action remains unchanged.

3. WILLS--Testamentary Capacity--Evidence. The evidence adduced to support an action to set aside a will, summarized in the opinion and considered, and held sufficient to support a judgment that the testator did not have sufficient testamentary capacity to make it, and the will was properly held invalid on that account.

Z. C. Millikin, of Salina, for the appellant.

Alex H. Miller, of Salina, and A. C. R. Swenson, of Omaha, Neb., for the appellees.

OPINION

DAWSON, J.:

This was an action to set aside the purported last will and testament of the late John August Johnson, of Saline county, who died on January 27, 1928.

Johnson was of Swedish nativity, unmarried, and for many years he had earned his livelihood as a farm hand and worker at common labor. He had lost touch with his relatives, plaintiffs in this action. Johnson was thrifty; he had a small house in Bavaria, twelve acres of land near Hedville, and had about $ 9,000 in notes, bank stock and assets of similar character.

About January 1, 1928, when Johnson was about 74 years of age, he fell ill at his little home in Bavaria, Saline county, and the defendant W. A. Donley removed him to his residence, about a mile away. Two weeks later, at an evening card game at Donley's house, Johnson exhibited symptoms of mental unbalance. Several persons present noticed this condition and Donley remarked, "There is something seriously the matter with the old man's mind." Next morning about sunrise Donley called at a neighbor's house saying that Johnson had been very sick and out of his head all night. That neighbor, Swenson, and another, Lindell, called at Donley's that evening, January 14, to see Johnson, and tried to talk with him. Swenson testified that Johnson's talk "wasn't exactly natural." As Swenson and Lindell were leaving Donley followed them out on the porch and said, "What you fellows say about making a will?" Lindell answered:

"He is not in a condition to make a will to-night, and another thing, I wouldn't know what kind of a will to suggest to him to make because I don't want none of his property and I don't suppose you want more than is coming to you for taking care of him, and I suppose you will get well paid for that. . . . There is nothing to do now but let the law take its course. If they can find those relatives they will find them, otherwise it will go to the school fund."

During Johnson's last illness several persons called on him, including a preacher who tried unsuccessfully to persuade him to make a will and to leave bequests to certain benevolent institutions. Donley testified that on the day the preacher called, January 14, Johnson asked Donley to make a list of his property, saying: "I was trying to figure up what I had and he (the preacher) bothered me." Donley testified:

"He asked me if I would help him and I told him yes. . . . I asked my wife for a paper. She got a piece of paper. Johnson told me that Walfred owes me $ 1,700. He says you mark it down. I wrote it down, then he told me different ones, told me about my note."

One item in the list of Johnson's property was a note which he held against Donley for $ 675.

Dr. J. H. Winterbottom, Johnson's physician, characterized Johnson's maladies as organic heart trouble, diseased kidneys, badly swollen limbs, and difficulty in breathing. On January 22, while receiving a professional call from Doctor Winterbottom, Johnson said to Donley: "I want you to have that note." Doctor Winterbottom suggested that there should be some memorandum to that effect. The doctor testified:

"I said, 'I think we had better make a statement of that fact that Mr. Donley is to have that note,' and he said 'all right.' Then I said, 'Have you made your will?' And he said he hadn't. I think then I volunteered to make the will."

Donley had told Doctor Winterbottom in private conversation that Johnson had said that he wanted him (Donley) to have all his property. The doctor's testimony continued--

"Q. Didn't you at that time ask him 'Do you want Donley to have all of your property?' or words to that effect? A. I asked him when we started to make the will.

. . . .

"I asked him what property he had and he gave me three or four items of property he had, he couldn't remember.

. . . .

"Q. Then what happened? A. Why, then Mr. Donley told me he had a list of the items.

"Q. What did he do? A. He, Donley, produced the list.

"Q. Now you stated, I believe, that the first three or four items were given by Mr. Johnson? A. Yes, sir.

"Q. And the rest of them were taken down by you from the list furnished by Mr. Donley? A. Yes, sir. Can't recall whether Mr. Donley read the list to me or whether I copied them off of the list."

The list prepared by Donley and from which the items devised by the will which the testator could not remember were taken is as follows:

"STATEMENT JAN. 18/28.

"Walfred

$ 1,700.00

George H.

250.00

John Wiston

250.00

Donley

675.00

Alquist

1,000.00

Carlson

1,000.00

H. Swenson

1,000.00

G. Swenson

500.00

Engstrom

500.00

House

$ 300.00

Deposit

400.00

Bank share

400.00

Headvil

100.00

Mrs. Alquist

25.00

Annar Alquist

1,000.00

Place

500.00

$ 9,600.00"

The doctor's testimony proceeds:

"After I finished writing the paper I read it to him and received his approval of it; then he signed it. . . . After he signed I asked the witnesses to sign. They signed in his presence and right before him."

The four witnesses to the will selected by Doctor Winterbottom were himself, a prospective son-in-law of Donley who has since married Donley's daughter, another daughter of Donley, and Donley's wife.

After this transaction was finished Johnson spoke to one of Donley's daughters, saying, "I want you to have a $ 100." The doctor testified, "Johnson . . . was shaking so and I hated to make out another will, so Donley said, 'We will tend to that.' I said, 'There is plenty of witnesses here. We will see that she gets her $ 100.' I asked the witnesses to sign the will. I don't believe Mr. Johnson said anything in regard to that."

The doctor testified that at the time the will was made he knew that--

"Johnson wasn't going to live very long. . . . I expected [he] might die at any time.

"Q. What would you say, Doctor, about the man's mental condition at that time . . . A. I think the man knew what he was doing. . . . He couldn't remember it all, of course. . . . I think he realized what he was doing. . . ."

Cross-examination:

"I don't remember when Donley made the statement that Johnson wanted to leave the property to him. Can't remember whether it was in my office or not. Statement was made sometime before the will was written. . . . When I offered to write the will Johnson gave me three or four items.

"Q. Now, Doctor, I would like to have your best recollection as to what Johnson said when he stopped giving you those items, if you have any recollection; what was said by him? A. I think he just stopped, and, hesitating, stopped saying anything. He seemed to be thinking."

Opinion evidence pro and con touching Johnson's mental capacity at and near the time the will was made was given by various witnesses whose opportunities to ascertain that fact were more or less limited. Ida Lowman, in whose home Johnson had boarded for six and a half years towards the end of his life, visited Johnson at Donley's residence the day the will was made. She testified:

"Didn't appear to know me; carried on but a few words conversation.

"Q. Do you have an opinion as to whether his mind was sound? A. I don't think it was at the time I saw him."

Cross-examination:

"Q. Now, when you were there the last time you say he didn't do any talking? A. No, he didn't do any talking, that is, in a conversational way. .

"Q. Apparently he was in a condition that he didn't want to do any visiting with anybody? A. Yes. . . .

"Q. But you inferred from the fact that he was there and didn't want to talk to you--well, you realized that he wasn't feeling well? A. Yes, I thought he was very near death.

"Q. Looked like a sick man? A. Yes.

"Q. And because he looked that way you concluded that his mind wasn't right, is that about right? A. I suppose so."

It would serve no purpose in this review to reproduce the evidence at greater length.

An advisory jury returned answers to twenty-one special questions which the trial court adopted as its findings of fact, some of which read:

"1. Was John A. Johnson at the time of the execution of the...