Millar's Estate, In re

• Decision Date: 07 November 1959
• Docket Number: No. 41464,41464
• Citation: 185 Kan. 510,345 P.2d 1033
• Parties: In the Matter of the ESTATE of Carrie E. MILLAR, Deceased. Billy Millar KRATZER and Lois Allen, Appellants, v. L. H. MOORE, Executor of the estate of Carrie E. Millar, deceased, Appellee.
• Court: Kansas Supreme Court

Page 1033

345 P.2d 1033

185 Kan. 510

In the Matter of the ESTATE of Carrie E. MILLAR, Deceased.

Billy Millar KRATZER and Lois Allen, Appellants, v. L. H. MOORE, Executor of the estate of Carrie E. Millar, deceased, Appellee.

No. 41464.

Supreme Court of Kansas.

Nov. 7, 1959.

Syllabus by the Court

1. In an action in which the heirs attack the validity of a will on the ground that the testatrix was mentally incompetent to make the will, the record is examined and it is held: The case was not decided by the trial judge on the ground of prejudicial personal beliefs and feelings against a psychiatrist, and the heirs were given a fair trial.

2. Where the ground of the motion for a new trial is error in the exclusion of evidence, the excluded evidence must be produced at the hearing of the motion for a new trial. G.S.1949, 60-3004.

3. Where the validity of a will is attacked on the ground that the testatrix was mentally incompetent to make the will, nonexpert testimony is competent on the question of mental capacity, and the trier of the facts is not bound to adopt the views and opinions of a physician qualified as an expert in psychiatry and neurology to the exclusion of nonexpert testimony.

4. The opinions of medical men, who have only normal school training in psychiatry without being specialists in the field, are admissible in evidence as to the mental capacity of a person at a particular time, because they are supposed to have become, by study and experience, familiar with symptoms of mental disease, and therefore qualified to assist the court or jury in reaching a correct conclusion.

5. While the trier of the facts might under some circumstances reject expert testimony absolutely, depending upon the circumstances, and give it no weight because it is believed to be least worthy of credit, it does not follow that such expert testimony can be disregarded.

6. The expert testimony of a psychiatrist on the question of mental capacity should not be so considered by the trier of the facts as to nullify all nonexpert testimony in conflict with it, nor should it be so considered as to nullify the expert testimony of medical doctors who attended the testatrix in her lifetime even though they were not specialists in psychiatry and neurology.

7. Where the trial court, in an action to set aside a will because of the testamentary incapacity of the testatrix, holds under conflicting testimony that the testatrix was mentally competent to make the will, and such finding is sustained by substantial evidence, the finding is conclusive on appeal.

C. H. Morris, Wichita, argued the cause, and Robert F. Bailey, Wichita, was with him on the brief, for appellants.

George Barrett, Pratt, argued the cause, and Richard Barrett, Pratt, was with him on the brief, for appellee.

SCHROEDER, Justice.

This is an action in which the heirs are attacking the validity of a will on the ground that the testatrix was mentally incompetent to make the will and the codicils thereto. Appeal has been duly perfected from an order of the district court upholding the admission of the will to probate and from an order overruling the appellants' motion for a new trial.

The question presented is whether the appellants were denied a fair trial, either by the exclusion of evidence or by rejecting the testimony of a psychiatrist in finding against the appellants, which they contend was by reason of prejudicial personal beliefs and feelings of the trial judge and contrary to reliable scientific evidence.

The instrument in question purporting to be the last will and testament of Carrie E. Millar, deceased, consists of the will proper which was executed May 5, 1945, and two codicils thereto, one executed August 15, 1952, and the other executed May 23, 1957.

The appellants, Billy Millar Kratzer and Lois Allen, were the sole and only children of Cyrus Millar and Goldie Millar. Cyrus Millar was the sole and only child of Carrie E. Millar, the testatrix herein, and William (Billy) Millar, who died in 1940 leaving a sizeable estate to his widow, Carrie E. Millar, as sole beneficiary. Cyrus Millar and Goldie Millar were divorced in May, 1945, and in 1947 Cyrus died leaving a will, which was executed May 5, 1945, leaving a sizeable estate to his mother, Carrie E. Millar. The appellants herein contested their father's will, but were unsuccessful, the matter having been considered by this court in In re Estate of Millar, 167 Kan. 455, 207 P.2d 483.

Carrie E. Millar never remarried after the death of William Millar in 1940 and lived alone in the family home at Pratt, Kansas, until her death on the 15th day of September, 1957. She left an estate consisting of extensive holdings of real property, corporate stocks, bonds, notes, mortgages, cash and other personal property of the appraised value of $265,659.09.

Throughout the years from 1945 until the date of her death she looked after her properties with the assistance of her attorney, George Barrett, her banker and friends. She received constant medical attention and when she signed the second codicil on May 23, 1957, she was in her eighties. Carrie E. Millar was eighty-six years of age when she died.

On the 18th day of October, 1957, the probate court of Pratt County, Kansas, entered an order admitting the last will and testament of Carrie E. Millar, deceased, to probate and declaring said last will and testament to be valid. On appeal from the above order to the district court of Pratt County, Kansas, the matter of Carrie E. Millar's mental competence was tried de novo. The appellee, L. H. Moore, executor of the estate of Carrie E. Millar, deceased, in propounding the will presented fourteen witnesses who testified as to the mental competency of the testatrix. Among these witnesses was an osteopathic physician who had practiced in Pratt County for fifty years and treated the testatrix for more than twenty-five years, two practicing physicians and general surgeons who had attended the testatrix, one having known her since 1931 and having had many contacts with her as an individual and in a professional capacity during the years, and the other having known her as a patient since May, 1952. Others included a legal secretary, a banker, an insurance broker, a graduate nurse, and neighbors from the vicinity of the Millar ranch in Kiowa County, Kansas, who had known the testatrix for many years.

The substance of the testimony given by these witnesses, if taken as true, established the requirements of mental capacity to make a valid will frequently applied by this court--that the testatrix was able to known and understand what property she had, know about her relatives and others who may be the objects of her bounty, and their condition and relation to her, and was able to direct and make a disposition of her property with understanding and reason. Hudson v. Hughan, 56 Kan. 152, 42 P. 701; Barnhill v. Miller, 114 Kan. 73, 217 P. 274; Klose v. Collins, 137 Kan. 321, 20 P.2d 494; Stayton v. Stayton, 148 Kan. 172, 81 P.2d 1; and In re Estate of Ellis, 168 Kan. 11, 210 P.2d 417. In the opinion of these witnesses, the testatrix had full mental capacity at the time she executed her will and the codicils thereto. She was described as a strong-minded woman not easily influenced.

The appellants took the position that the decedent was greatly advanced in age and infirm of mind and body and was incapable of and did not know and understand the extent and value of her property, the natural objects of her bounty and the meaning and purport of the instruments which she executed. They contended that at the time she executed the will and codicils thereto she was suffering from neuropsychiatric syndromes that gave her a sick mind and complete deterioration of mind, body and emotions; that she was influenced by untrue and imaginary beliefs and thoughts which had no basis in fact concerning her sole and only grandchildren, appellants herein, and their natural claim upon her property as natural objects of her bounty.

At this point it should be stated the testatrix left no property or money to her granddaughters, the appellants herein, who were her sole and only heirs at law. Except for a few minor bequests of money, taking the size of her estate into account, she left the home in Pratt together with the sum of $10,000 to the 'Library Board of the City of Pratt, Kansas, and/or the City of Pratt, Kansas', with directions that the structure be known as 'the William C. Millar Memorial', and the remainder of her estate in trust for the benefit of the 'Library Board of the City of Pratt, Kansas, and/or the City of Pratt, Kansas', as a further contribution to the maintenance of the public library of the City of Pratt, Kansas.

The appellants' evidence as to incompetency of the deceased to make the will and respective codicils in question was the opinion testimony of an experienced psychiatrist and neurologist, Dr. Frank H. Harris, M.D., of Wichita, Kansas. Dr. Harris had never seen the testatrix during her lifetime and was presented as a qualified and experienced psychiatrist and neurologist, who had carried on an extensive practice in determining within reasonable medical certainty the competency or incompetency of a person after death, without having previously treated or observed such person prior to death. The appellants' theory of the case was that 'a competent medical trained practitioner in the field of psychiatry can determine the mental competency or incompetency of an individual after death when they have not had occasion to treat or see the person prior to death. And that the diagnostic aids of doing that is to obtain information of all the things in the background, the life and history of the person that they are trying to determine competency after death.'

Pursuant to this theory the appellants sought to introduce in evidence before the trial court the life history of the testatrix.

The first question presented by ...