Lanning v. Gay
Decision Date | 01 December 1904 |
Docket Number | 13,835 |
Parties | JOHN B. LANNING v. MARY GAY et al |
Court | Kansas Supreme Court |
Decided July, 1904.
Error from Clay district court; SAM KIMBLE, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. WILLS -- Testimony of Husband of Legatee. A husband who is one of the subscribing witnesses to a will is not disqualified from giving testimony before the probate court to establish its due execution because of the fact that his wife is a legatee.
2. WILLS -- Husband and Wife as Witnesses -- Statute Construed. The provisions of section 4771, General Statutes of 1901, which render a husband or wife incompetent to testify for or against each other in an action, except in certain specified cases, do not disqualify a husband from testifying before the probate court in a proceeding to establish a will in which his wife is named as legatee.
3. PRACTICE -- Actions and Special Proceedings Distinguished. The distinction between actions and special proceedings noted.
Coleman & Williams, for plaintiff in error.
F. P Harkness, and Valentine, Godard & Valentine, for defendants in error.
OPINION
The question involved in this proceeding in error is whether or not the husband of a legatee in a will is a competent witness to its execution. The point was raised in the district court in an action brought by the father and sole heir at law of the testatrix, to contest her will, under section 7957, General Statutes of 1901, after it had been admitted to probate in conformity with the requirements of section 7952, General Statutes of 1901. The law respecting the attestation of wills reads:
"Every last will and testament . . . shall be in writing, and signed at the end thereof by the party making the same, or by some other person in his presence and by his express direction, and shall be attested and subscribed in the presence of such party by two or more competent witnesses, who saw the testator subscribe or heard him acknowledge the same." (Gen. Stat. 1901, § 7938.)
The contention of counsel for plaintiff in error against the validity of the will is based upon the statute respecting the competency of witnesses, found in the civil code. The relevant part of section 4771, General Statutes of 1901, reads:
"The following persons shall be incompetent to testify: . . . Third: Husband and wife, for or against each other, except concerning transactions in which one acted as the agent of the other, or when they are joint parties and have joint interest in the action."
The disqualification has relation to witnesses in an action. An action is thus defined:
"An action is an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense." (Gen. Stat. 1901, § 4432.)
"Every other remedy is a special proceeding." (Gen. Stat. 1901, § 4433.)
The nature of a proceeding in the probate court to admit a will to probate received attention in the late case of Hospital Co. v. Hale, 69 Kan. 616, 77 P. 537. It was there said:
There is a wide distinction between a proceeding to admit a will to probate, informal and summary in character, and an action which must be commenced by filing a petition and causing a summons to issue thereon. (Gen. Stat 1901, § 4487.) The word "action" is more limited in scope than the word "suit." (Ulshafer v. Stewart, 71 Pa. 170; Cornish v. The Milwaukee & Lake Winnebago R. R. Co., 60 Wis. 476, 19 N.W. 443; The City of Marion v. Ganby et al., 68 Iowa 142, 26 N.W. 40.)
The distinction between actions and special proceedings, under the code, is pointed out at page 721 of the Cyclopedia of Law and Procedure. The separate classification of actions and special proceedings in our statutes has led counsel for plaintiff in error to say in their brief that "the civil action in the district court to set aside the will...
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