Perkins' Estate, In re

• Decision Date: 09 December 1972
• Docket Number: No. 46530,46530
• Citation: 504 P.2d 564,210 Kan. 619
• Parties: In the Matter of the ESTATE of Maude PERKINS, a/k/a Muade M. Perkins, Deceased. Edwin D. MORRISON, Appellant, v. Marlin A. WHITE, Executor of the Estate of Maude Perkins, a/k/a Maude M. Perkins, et al., Appellees.
• Court: Kansas Supreme Court

Page 564

504 P.2d 564

210 Kan. 619

In the Matter of the ESTATE of Maude PERKINS, a/k/a Muade M.

Perkins, Deceased.

Edwin D. MORRISON, Appellant, v. Marlin A. WHITE, Executor of the Estate of Maude Perkins, a/k/a Maude M. Perkins, et al., Appellees.

No. 46530.

Supreme Court of Kansas.

Dec. 9, 1972.

Syllabus by the Court

1. K.S.A. 59-606 does not make it mandatory for a testator to subscribe his signature in the presence of the witnesses or to tell them it is his signature if the will containing the testator's signature is observed by the witnesses and is clearly acknowledged by the testator to be his last will and testament.

2. The acknowledgment of the testator need not be formal nor in any set form of words. It may be implied and consist of conscious acts or conduct on the part of the testator.

3. Where the mental capacity of the testator to make a will is the issue, the supreme court on review is only concerned with the inquiry whether there was substantial competent evidence to support the trial court's finding of capacity. It does not compare or weigh testimony.

4. The test of a testamentary capacity is not whether person has capacity to enter into a complex contract or to engage in intricate business transactions nor is absolute soundness of mind the real test of such capacity. The established rule is that one who is able to understand what property he has, how he wants it to go at his death and who are the natural objects of his bounty is competent to make a will even though he may be feeble in mind and decrepit in body.

Arthur L. Claussen, Topeka, argued the cause, and Edward S. Dunn, Holton, was with him on the brief for appellant.

James E. Parmiter, Holton, argued the cause, and Marlin A. White, Holton, was with him on the brief for appellees.

PRAGER, Justice:

This is a will contest. The district court after an extensive evidentiary hearing admitted to probate the last will and testament of Maude M. Perkins. The appellant, a nephew of the testatrix, attacks the will on two grounds:

(1) The will was not executed in compliance with the requirements of K.S.A. 59-606.

(2) The testatrix lacked the mental capacity to execute a will at the time the will was executed.

There is no claim made of fraud or undue influence or that the document was not in fact signed by the testatrix and by the two subscribing witnesses, Anna M. Pool and Delores Schlodder. The trial court in its memorandum decision made extensive findings of fact a summary of which is as follows: The testatrix, Maude M. Perkins, died May 14, 1970, at the age of 87 years. She had never married. She left surviving her as her sole heirs, her sister, Edna Palmer, and her nephew, Edwin D. Morrison, who was sometimes referred to as Dale Morrison. Miss Perkins had lived on the family farm in Jackson County, Kansas, with her brother Ray R. Perkins, until his death in March 1962. Prior to 1962 a deed was executed wherein this farm, quarter section, was conveyed to Ray Perkins, Maude Perkins, and Edwin D. Morrison as joint tenants. On the death of Maude Perkins the title to this land went to Edwin D. Morrison as the surviving joint tenant. After the death of her brother, Ray Perkins, Maude stayed on the farm for a short period and early in 1963 moved to the city of Holton. After living a short period with her sister she moved with her sister to a rest home at Smith Center, Kansas, where she died. In the fall of 1962 Mr. Edward S. Dunn, an attorney at Holton, Kansas, prepared a will for Miss Perkins. This will was offered for probate also. The probate court found this will was properly executed according to law and that at the time of its execution Maude Perkins had testamentary capacity. It further found that the 1965 will, which is involved here, by its terms revoked the 1962 will. In the 1962 will, Maude Perkins, had given $1,000 to her sister, Edna Palmer, with some language about reducing this amount if her estate was diminished in Maude's lifetime. The residue of the estate was left to the nephew, Edwin D. Morrison. This 1962 will was never physically destroyed.

On February 1, 1963, Maude Perkins, filed a voluntary petition for the appointment of a guardian for her person and estate. The reason for her action was that she felt she needed help in handling her business and financial affairs. Mr. Marlin A. White, an attorney at Holton, had known Miss Perkins casually and had visited with her on the street. Miss Perkins spent a lot of time 'uptown' on the square in Holton. In August of 1964, she consulted Mr. White concerning a change in her guardian. There was some disagreement about the guardianship. White filed a petition to terminate the guardianship. The trouble was apparently worked out amicably with the result that a different guardian was appointed and the petition to terminate the guardianship was not pressed.

About a week or 10 days prior to June 1, 1965, Maude Perkins consulted Mr. White concerning a will. At that time Mr. White knew of the voluntary guardianship and spent more than the usual time in discussing the matter of the will with her. Upon inquiry by Mr. White, Miss Perkins told him that she had about $20,000 in two financial institutions; that there was a farm in which she had an interest which would go to Dale Morrison on her death and that she had no right to make a will concerning the farm; that her family consisted of her sister, Mrs. Palmer, Mrs. Palmer's two sons, and Dale Morrison, the son of her predeceased sister. Miss Perkins told Mr. White she had made a prior will which had been prepared by Mr. Dunn. She stated that in the prior will she had given Mrs. Palmer $1,000 and the balance to Dale Morrison. She discussed the fact that she did not want to give her sister the full $1,000 if her estate was diminished. She stated she now wanted the Christian Church of Holton to have the balance of her estate to be used for education of ministers but that she did not want them to be able to spend it all at once. She wanted a memorial in her name. Mr. White suggested that Mrs. Palmer be given 5% of her estate and that a trust arrangement be set up for the bequest to the church. These suggestions were agreeable to Miss Perkins.

A day or two before June 1, 1965, Miss Perkins saw Mr. White on the street of Holton and asked him humorously, 'Are you ever going to get that will made?' Mr. White told her to come to the office June 1st and that it would be ready. The will was executed on June 1, 1965. On the morning of that day Miss Perkins called Mr. White on the telephone and asked if she could bring a friend to be a witness to the will which Mr. White said would be all right. Miss Perkins called Anna M. Pool, who had known Miss Perkins since 1963, and asked to meet her at the courthouse in Holton, not giving a reason. These two met at the courthouse and there Miss Perkins told Mrs. Pool that she had a will made out and she wanted Mrs. Pool to sign it. They proceeded to Mr. White's office. When Miss Perkins and Mrs. Pool arrived at Mr. White's office he asked Miss Perkins to read the will which she apparently did. He then read it aloud to her. Miss Perkins asked Mr. White to explain 'net income,' a phrase used in the will, which was done to her apparent satisfaction. This was done with Mrs. Pool present.

Then Mr. White stepped down the hall and asked Delores Schlodder, who was employed in a doctor's office in the same building, to come in to sign the will. Mrs. Schlodder had on many previous occasions been asked to witness the signing of wills. Mrs. Schlodder along with Mr. White then entered the office room where Miss Perkins and Mrs. Pool were seated. Mr. White introduced Mrs. Schlodder and told Miss Perkins that Mrs. Schlodder would witness her will. Mrs. Schlodder had known Miss Perkins casually prior to that time. Mr. White in the presence of all three ladies then asked Miss Perkins who her heirs were and if she would like to tell Mrs. Schlodder what she was leaving in her will. Miss Perkins answered these questions. Mrs. Schlodder does not recall the specific questions or details. Miss Perkins talked to Mrs. Pool and mentioned leaving money to the Christian Church. Mrs. Pool stated in substance that it was her money to do with as she wanted. Mrs. Pool does not recall that Miss Perkins said anything other than the comment about the money to the Christian Church. Following this Miss Perkins signed the document; Mrs. Pool signed the document as a witness and then Mrs. Schlodder signed the document as a witness. Mrs. Schlodder actually saw Miss Perkins sign the document. Mrs. Pool did not actually see Miss Perkins sign the document because she was seated across the room with her back to the wall. At the time of trial Mrs. Pool was 81 years of age and had an obvious hearing deficiency. The signature of Miss Perkins was affixed to the document prior to that of any of the witnesses. The witnesses saw each other sign the document; they both knew they were witnessing the will of Maude M. Perkins. Maude M. Perkins knew she had signed her will and that Mrs. Schlodder and Mrs. Pool were signing as witnesses to the will. All four parties, Miss Perkins, Mrs. Schlodder, Mrs. Pool and Mr. White, were in the same room during the entire procedure of the execution of the will. They were all within the presence, sight, and hearing of each other. After the execution of the will, Mrs. Schlodder left to return to her work. Miss Perkins then asked Mr. White to keep the will. Mr. White suggested that it could be left with the probate court. Miss Perkins stated that she had left a will with the probate court once and had had trouble getting it out again and wanted Mr. White to keep it. Mr. White retained possession of the will.

There was a great deal of conflicting testimony in regard to the physical and mental condition of Miss Perkins during the year preceding the execution of the will. In 1964, particularly in the fall of the year,...