Protheroe v. Davies

• Decision Date: 06 May 1939
• Docket Number: 33825.
• Parties: PROTHEROE et al. v. DAVIES et al.
• Court: Kansas Supreme Court

89 P.2d 890

149 Kan. 720

PROTHEROE et al. v. DAVIES et al.

No. 33825.

Supreme Court of Kansas

May 6, 1939

Rehearing Denied July 8, 1939.

Syllabus by the Court.

On appeal from judgment in will contest, the Supreme Court would give credence to the testimony of witnesses where the trial court gave credence, and ignore such testimony where the trial court rejected it.

Where testimony in will contest was by deposition, the Supreme Court, on appeal, was in the same position as the trial court, and had its own responsibility touching the credence to be accorded that evidence.

The gist of a contest of a will, which has already been admitted to probate, is to get behind the prima facie evidence arising under the statute making the admission of a will to probate prima facie evidence of its genuineness, in order to discover, if possible, the true facts as to its validity or invalidity. Gen.St.1935, 22-224.

In will contest, allegation that written instrument was not the valid will of the testatrix was sufficient to raise an independent issue of fact irrespective of further allegations in the petition which raised another issue of undue influence.

The disparity between testatrix' declared intention in her will to make a fair division of her estate, and a grossly unfair division of the estate in the devises and bequests which followed the declaration, would be given probative significance in will contest.

Evidence that aged testatrix' wish to have an attorney of her own choosing to draw her will was frustrated, that devises were greatly at variance with testatrix' declared intention in will and as made by her both before and after the making of the will, and that the will, as written, did not conform to testatrix' directions and was twice misread to her by the scrivener before she signed it, required the finding that the will was not the valid will of the testatrix.

The practice of an attorney serving as an attesting witness in a will drawn by him and in which he is named as executor is improper.

An attorney's remaining in active charge of litigation when he deems it advisable to volunteer as a witness and testify in respect to vital matters is improper.

1. In an action to contest a will, an allegation in plaintiffs' petition "that said written instrument *** is not the valid will of the said Mary Davies, deceased," was sufficient to raise an independent issue of fact irrespective of further allegations in the petition which raised another issue of undue influence.

2. The statutory provision which declares that the probate of a will shall be prima facie evidence of its genuineness should be considered in connection with the other provisions of the same statute which accord to persons aggrieved by its admission to probate the right to contest its validity.

3. The evidence adduced to support plaintiffs' first ground of attack on the will, summarized in the opinion, was sufficient, and plaintiffs were entitled to judgment thereon.

4. The practice of a lawyer serving as an attesting witness in a will drawn by him in which he is named as executor cannot be approved, and his remaining in active charge of the litigation when he deems it advisable to volunteer as a witness and testify in respect to vital matters of issue is disapproved. Following State v. Ryan, 137 Kan. 733 22 P.2d 418; and Earhart v. Tretbar, 148 Kan. 42, 80 P.2d 4.

Appeal from District Court, Osage County; Otis E. Hungate, Judge pro tem.

Action by Margaret Protheroe and J. C. Davies, otherwise known as Jacob Davies, against Dan Davies, otherwise known as Dan I Davies, and others, to contest the validity of the last will and testament of Mary Davies, deceased. From a judgment in favor of the defendants, the plaintiffs appeal.

Judgment reversed and cause remanded, with instructions to enter judgment for plaintiffs.

ALLEN J., dissenting.

A. K. Stavely, of Lyndon, and I. T. Richardson, Owen S. Samuel, and Everett E. Steerman, all of Emporia, for appellants.

Harry W. Colmery and A. C. Backus, both of Topeka, and O. R. Stites and W. W. Parker, both of Emporia, for appellees.

DAWSON Chief Justice.

This was an action to contest the validity of the last will and testament of the late Mrs. Mary Davies of Osage county. The will was admitted to probate and this action followed.

Plaintiffs are a daughter and son of the testatrix. Defendants are another son and daughter, and the third defendant is the executor named in the will. One son's wife is also a defendant.

It is necessary to an understanding of this lawsuit to narrate some matters of family history which appear in the record. The late David O. Davies and Mary Davies, his wife, came from Wales and settled in Osage county many years ago. They accumulated 1,000 acres of land which was held in David's name. They reared a family of four children--Mary, Jacob, Margaret and Dan. One of their farms was called the old home place. About 1900, however, a new farm home was established on another tract of land, and on it Mr. and Mrs. Davies resided until 1923 at which time David's mind became deranged. At first he was taken to a hospital in Emporia but later was confined to the Topeka State Hospital. He never recovered his sanity and died in 1930. During the long period of David's incapacity, his two sons, Jacob and Dan, were the guardians of his estate, and W. W. Parker, one of the defendants, served them as attorney from 1923 to 1930. Following the father's death, Jacob and Dan were appointed administrators of their father's intestate estate, and in that capacity Parker continued to act as their attorney until the estate was settled and closed on July 19, 1932. The Davies' lands were amicably divided pursuant to the advice and supervision of E. H. Rees, an Emporia attorney, who spoke the Welsh language and enjoyed Mrs. Davies' confidence. In this amicable division, the mother received about half the value of her husband's estate and the four children the other half. In this apportionment of lands the mother received the new home place of 140 acres and 240 acres of other land. Each of her children received certain tracts of land and gave her their several notes for various amounts agreed upon to equalize the estimated value of the lands apportioned to them and to satisfy various items of debts they owed their father's estate, thus:

Jacob and Dan got 320 acres jointly, and Jacob gave his mother his interest-bearing note for $2,260, and Dan gave his mother his similar note for $3,000.

Mary (Mrs. W. O. Jones) got 160 acres and gave her mother her interest-bearing note for $220.

Margaret (Mrs. I. H. Protheroe) got the old family homestead of 140 acres, and gave her mother her interest-bearing note for $600.

It was conceded in this lawsuit, and so found by the trial court, that this family settlement and division of the father's lands was fair and satisfactory to all concerned. The requisite instruments to effect that settlement were executed and exchanged in June, 1932. The agreed value of each child's share was $5,380, and on that basis the mother's share was $21,520. It is that share which in its turn became the estate of the mother and which is involved in this contest of the mother's will.

At the time of the family settlement the mother was 75 years old. She occupied two downstairs rooms of her farm house with a hired attendant. She was crippled and could only get about with the aid of crutches or in a wheel chair. Occasionally she was taken for an outing in an automobile. Her native speech was Welsh, which she read and spoke readily. She was a woman of good intelligence and alert mind, but she read and spoke English with difficulty and understood it only if it was spoken slowly.

Her son Dan and his wife occupied the remaining portion of the mother's house. Dan operated his mother's farm, managed her affairs, and handled her bank account. He employed the succession of attendants who waited on his mother. At one time the mother had a separate telephone connection but that was cut off; and her only practical means of communicating with her other children or friends was by means of her son's telephone which was not always convenient to use.

The daughter Margaret (Mrs. Protheroe) had an invalid son, the care of whom prevented her visiting her mother to some extent. Another reason for her infrequent visits was that her brother Dan was disagreeable toward her. On one occasion when she was at her mother's home he cursed her, saying, "Damn you, there is the road." While the testimony to that effect was disputed, the trial court expressly found it to be true.

Shortly after the family settlement of the father's estate but before that estate was formally wound up in the probate court, it seems that in some way the mother signified to Dan or Jacob or to both of them her willingness to make a will, and that she wanted attorney E. H. Rees to draw it for her. In the small town of Reading not far from the Davies properties there was a bank operated by one D. Willis Jones. Dan Davies was a debtor of that bank. W. W. Parker, defendant herein, had been attorney for that bank. Dan did not want to carry out his mother's desire to secure Mr. Rees to draw her will. Jacob also held that attitude. He and Dan asked D. Willis Jones, the Reading banker, to draw their mother's will. They told him their mother wanted lawyer Rees to draw it but that they thought Rees would favor their sister Margaret. Jones declined to draw the will, and advised that they get W. W. Parker to draw it, and said he, Jones, would serve as an attesting witness.

Accordingly Jacob and Dan went to Emporia, some 15 or 20 miles away, and called on Mr. Parker, and informed him that their mother wanted to make a will, that she wanted Mr....