Roberts' Estate, In re

• Decision Date: 02 November 1963
• Docket Number: No. 43237,43237
• Citation: 192 Kan. 91,386 P.2d 301
• Parties: In the Matter of the ESTATE of Charies T. ROBERTS, Deceased. Albert H. ROBERTS, Appellant and Cross Appellee, v. Helen Roberts MAY, Marlene Roberts, Natural Guardian of Kim Leslie Roberts, a Minor, Kim Leslie Roberts, a Minor, and Tom Pringle, Guardian Ad Litem for Kim Leslie Roberts, a Minor, Appellees, and Harley A. Coffey, Administrator De Bonis Non Cum Testamento Annexo, Appellee and Cross Appellant.
• Court: Kansas Supreme Court

Page 301

386 P.2d 301

192 Kan. 91

In the Matter of the ESTATE of Charies T. ROBERTS, Deceased.

Albert H. ROBERTS, Appellant and Cross Appellee, v. Helen Roberts MAY, Marlene Roberts, Natural Guardian of Kim

Leslie Roberts, a Minor, Kim Leslie Roberts, a

Minor, and Tom Pringle, Guardian Ad

Litem for Kim Leslie Roberts,

a Minor, Appellees,

and

Harley A. Coffey, Administrator De Bonis Non Cum Testamento

Annexo, Appellee and Cross Appellant.

No. 43237.

Supreme Court of Kansas.

Nov. 2, 1963.

Rehearing Denied Dec. 14, 1963.

Syllabus by the Court.

1. In an action contesting the validity of a will by the sole heir on the ground that the testator was mentally incompetent to make the will, the district court, hearing the matter on appeal from the probate court, approved the findings of an advisory jury that the testator had sufficient mental capacity to make the will and entered judgment ordering the will admitted to probate. The trial court further ordered an allowance of attorneys' fees for the respondents' attorneys in the sum of $3,500, for the guardian ad litem in the sum of $400, and for the contestant's attorney, who unsuccessfully prosecuted the litigation, the sum of $3,000. On appeal the record is examined and it is held: (a) There was substantial competent evidence to sustain the finding of the trial court that the testator was mentally competent to make the will; (b) the allowance of attorneys' fees for the respondents' attorneys and for the guardian ad litem was proper; but (c) the allowance of attorney's fees for the contestant's attorney, who unsuccessfully prosecuted the litigation, was erroneous; and (d) alleged trial errors are found insufficient to warrant a reversal on the issue of the testator's competence, all as more particularly set forth in the opinion.

2. Where the validity of a will is attacked on the ground that the testator 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 facts and opinions of three medical experts, to the exclusion of other nonexpert testimony.

3. Where the validity of a will is contested on the ground that the testator was mentally incompetent to make the will, the district court, hearing the matter on appeal from the probate court, has authority to order an allowance of attorneys' fees on the matter litigated before it to the extent such allowance is authorized by the provisions of G.S.1949, 59-1504.

4. In an action contesting the validity of a will attorney's fees should not be allowed to counsel for an unsuccessful litigant, when the action is brought for the personal benefit of the litigant, rather than for the benefit of the estate.

Frank G. Theis, Arkansas City, argued the cause and was on the brief for the appellant.

Earle N. Wright, Arkansas City, argued the cause, and Ted M. Templar, Arkansas City, and Ralph W. Gilbert, Angleton, Tex., were with him on the brief for the appellees.

Grant H. Cole, Winfield, argued the cause and was on the brief for the cross appellant.

SCHROEDER, Justice.

This is an appeal from an order of the district court of Cowley County, Kansas, admitting a will to probate, after a verdict by an advisory jury was approved and judgment entered.

The underlying question in the case is whether the testator had sufficient mental capacity to make a will.

The appellant contends this case is unusual and unique among previously reported will contest cases before the Supreme Court on the subject of mental capacity in that the unchallenged and positive medical testimony of three specialists, who had treated the testator for years, was the only medical testimony in the entire case. Their testimony was to the effect that the testator was totally incapacitated by advanced cerebral arteriosclerosis and senile dementia, which affected the ability and power of his brain to use the reasoning processes. The appellant charges that the evidence in this case and the decision of the trial court admitting the will to probate 'dramatize the wide and startling gap between the progress in medical science and the static and backward existence of Kansas law on the subject of mental capacity.'

On the 5th day of August, 1952, Charles T. Roberts, hereafter referred to as the testator, executed his last will and testament. On February 11, 1953, testator was adjudged incompetent and a guardian appointed.

On March 3, 1961, shortly after the testor's death, his will was admitted to probate in the probate court of Cowley County, Kansas, and on appeal to the district court the matter of the decedent's testamentary capacity was tried de novo, with a jury in an advisory capacity.

The jury found the testator had testamentary capacity on August 5, 1952, and the trial court approved the finding of the jury and ordered the will in question admitted to probate.

The appellant attacks the testimony of the proponents' witnesses stating it is unsubstantial and incompetent. The appellant argues the witnesses for the proponents are weak because they do not measure up to the Kansas rule which requires a witness, preliminary to expressing an opinion on capacity, to relate facts which he observed about the testator as a foundation for such opinion. (Citing, Baughman v. Baughman, 32 Kan. 538, 4 P. 1003; and In re Estate of Harris, 166 Kan. 368, 201 P.2d 1062.) The foregoing charge is not substantiated by the record.

At the trial in the district court the scrivener of the will, Stewart S. Bloss, an experienced attorney in Winfield, Kansas, and his secretary, Grace Hill, testified to all the essential matters necessary to show testamentary capacity. Other witnesses for the proponents were a real estate man who had known the testator for more than two years prior to the execution of the will and visited with him frequently; a friend of fifty years standing and a constant companion for four years immediately after the execution of the will; a niece who visited with the testator in 1952; a neighbor and tenant of the testator who saw him many time in the summer of 1952; and a former abstracter who had know the testator for forty years.

The substance of the testimony given by these seven witnesses, if taken as true established the necessary elements of mental capacity to make a valid will as required and frequently applied by this court--that at the time the instrument was executed the testator knew and understood the nature and extent of his property; that he knew about his relatives and others who may be the objects of his bounty, and their condition and relation to him, and was able to direct and make disposition of his 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; In re Estate of Ellis, 168 Kan. 11, 210 P.2d 417; and In re Estate of Millar, 185 Kan. 510, 345 P.2d 1033.)

The last will and testament of the testator, among other things, gave a life estate in the testator's 400-acre farm to Albert H. Roberts, his only son, the appellant herein. Albert had two children by his second wife, who later divorced him, and these two children are the named beneficiaries of the remainder interest in the real estate of the testator. The son of Albert died after the testator's death, and his infant daughter, Kim Roberts, is a party to this action in his stead.

The divorce between Albert and his second wife and its aftermath was very bitter, involving among other things the refusal of the mother to allow the children to see either Albert or his parents, one of whom was the testator. The result was complete estrangement between Albert and his children. Albert, the appellant herein, having been given only a life estate in the farm, is contesting the validity of the testator's will on the ground that he lacked testamentary capacity, and his daughter and granddaughter, having been given the remainder in fee to the farm and a house and lot in Winfield, are the proponents of the will.

The substance of the appellant's testimony was that the testator in 1940 at the age of 70 years suffered severe head injuries in an automobile accident, and according to medical testimony and lay testimony began to decline thereafter, both physically and mentally. Early in February, 1952, the testator suffered first, second and third degree burns to his lower limbs and body when his clothing ignited from a brush fire he had carelessly started on the farm. There was evidence the testator developed peculiar mannerisms and behavior patterns noticeable by neighbors and business acquaintances, which became quite pronounced from 1951 onward, including a penchant to set fires. Early in the period of 1950 through 1951 the testator made three different wills (other than the will admitted to probate herein), one of which was admitted in evidence, and two of which were excluded, in all of which he left his property, excluding some minor bequests, to his son, the appellant, absolutely. The appellant contends the significant period, as far as the mental capacity of the testator was concerned, was from the time he was hospitalized from the severe burns early in February, 1952, until his adjudication as an incompetent in the probate court of Cowley County early in February, 1953.

Evidence was conflicting as to the testator's mental state during his hospitalization and thereafter. All of the appellant's witnesses described the testator as being incompetent, unsound of mind, and as having mental deterioration.

Three of the appellant's witnesses were physicians, two being specialists in diseases of the circulatory and cerebral-vascular system. They testified that they had known, examined and treated the testator for several years prior to sustaining his burns, and thereafter; that the serious burns were a severe traumatic experience which...