Smith v. Holden

• Decision Date: 09 October 1897
• Docket Number: 10140
• Citation: 58 Kan. 535,50 P. 447
• Parties: JACOB SMITH v. RICHARD HOLDEN et al
• Court: Kansas Supreme Court

50 P. 447

58 Kan. 535

JACOB SMITH v. RICHARD HOLDEN et al

No. 10140

Supreme Court of Kansas

October 9, 1897

Decided January, 1897.

Error from Shawnee District Court. Hon. Z. T, Hazen, Judge.

Judgment affirmed.

A Bergen, for plaintiff in error.

Stebbins & Evans, for defendants in error.

OPINION

DOSTER, C. J.

The defendants offered for probate, as the will of Sarah A Smith, deceased, the following instrument:

"It is my desire that the amounts herein below shall be distributed as follows: Of the moneys now in the hands of W A. L. Thompson Hardware Company, of Topeka, Kan., Mrs. Emma Holden, for the use of her son Kenneth, eight hundred dollars ($ 800), and to Richard L. Holden fifteen hundred dollars ($ 1,500); payable to R. L. Holden, July 1, and Emma, November 1, 1889. And, further, that Sallie M. Merritt, Lizzie H. Latham, Nannie B. Battey, Ida M. Holden and Ida S. Thompson shall pay Richard L. Holden two hundred and fifty dollars, to be collected from rent, as soon as the rents can be collected. Signed this sixth day of April, 1889. SARAH A. SMITH.

JACOB SMITH."

"Witnesses: IDA S. THOMPSON.

RACHEL BLEDSOE.

D. C. JONES."

The probate court refused to admit it to probate or record as such will. The proponents appealed to the district court, which court, upon trial, sustained the appeal and rendered the following judgment:

"Now, on this seventeenth day of September, 1894, the court, being fully advised in the premises, finds the said instrument so presented for probate as the last will and testament of Sarah A. Smith, deceased, is sufficient in form, and is the last will and testament of Sarah A. Smith, deceased, and is entitled to probate as such will. Wherefore, it is by the court considered, adjudged and decreed that said instrument be admitted to probate, in the probate court of Shawnee County, Kansas, as the last will and testament of said Sarah A. Smith, deceased, and that said probate court cause the same to be recorded, in manner provided by law, as such will and testament.

This judgment is brought here for review, and the assignments of error are, that the court below erred: "First, in holding that such instrument was a will; second, in holding that it was the will of Mrs. Sarah A. Smith; third, in holding that the same was legally executed and witnessed; fourth, in holding that it should be probated as a will before the death of Jacob Smith; fifth, in ordering that the instrument be probated as a will without finding that Sarah A. Smith was of sound mind."

It is urged in argument that the instrument is too uncertain in its character and terms to be adjudged the will of Mrs. Smith; that it is signed, not alone by her, but by another as well, and it cannot, therefore, be told to whose property it relates; that it cannot be told whether it evidences gifts inter vivos or testamentary in character, because it sets dates for the passing of such gifts; and it is further urged that its ambiguities in such respect cannot be corrected by explanatory evidence, because it must be construed wholly by its own terms, and that, so construing it, it must be held the will of Jacob as well as of Sarah Smith, if a will at all, and therefore not entitled to probate until his death. As an alternative proposition, it is contended that, if resort can be had to the extrinsic evidence introduced upon the trial, such evidence fails to show that the instrument was legally executed and witnessed as a will, and fails to show that Mrs. Smith was of sound mind at the time of its execution; and also that, without a specific finding of mental capacity in the testator, the order to probate was erroneously made.

There was but little contrariety of testimony in the case, except as to the condition of Mrs. Smith's mind at the time of the execution of the instrument. As to that, there was testimony upon which the court might have made a specific finding either way. The substantially undisputed facts are, that Sarah A. Smith was the second wife of the plaintiff in error, Jacob Smith, and he was her second husband. She never had any children. The instrument was written and signed April 6, 1889. She died May 17, 1889. At the time of her death she was about sixty years of age. Her nearest relatives were a sister and nephews and nieces. When Mr. and Mrs. Smith were married, she had about ten or twelve thousand dollars' worth of property. During their twenty years of married life this increased to about sixty or seventy thousand dollars. Shortly before the making of the writing in question, she gave away to her nieces, by deeds of conveyance and otherwise, all her property except such as may have been referred to in the instrument. She had frequently stated that she never would make a will. At the time of her death she had about two thousand dollars in the possession of the Thompson Hardware Company, of Topeka. This company was in charge of her husband, the plaintiff in error, who was also the president of the company. He also had money of his own in the possession of the company. Mrs. Thompson, a step-daughter, wrote the instrument at the request of Mrs. Smith. She saw Mrs. Smith sign it, but did not see any of the others sign it. The witnesses signed the instrument at Mrs. Smith's request and in her presence. However, she did not declare it before any of the witnesses to be her will, nor request any of them to sign or attest it as her will. Jacob Smith, the husband, signed it to "pacify" his wife, and because he did not want to have her "excited." The persons to whom the gifts expressed in the instrument were made were Mrs. Smith's nephews, to whom, during her last sickness, she expressed an intention to give something. Neither Sallie H. Merritt, Lizzie H. Latham, Nannie B. Battey, Ida M. Holden, nor Ida S. Thompson were owing Mrs. Smith anything, nor did they have charge of any of her property out of which to collect any rents. At the time of the execution of the instrument Mrs. Smith was very ill, and said she feared she could not live until morning, and desired to sign the paper and have it witnessed, at once.

The assignments of error are not well taken. Somewhat more strictness is observed in the reception of parol evidence of expressions of a testator's intentions than in the case of like evidence explanatory of contracts inter vivos. 2 Wharton on Evidence, § 992, et seq.; but the rule that evidence of the circumstances under which an instrument is made and the facts to which it stands in relation may be shown in exposition of its character and meaning, applies as well to wills as to any other class of writings. 2 Wharton on Evidence, § 996, et seq. Such evidence is admissible, not only to apply meaning to words used, and to ascertain the objects and subjects of a testator's bounty, but also to determine the character of the instrument, whether testamentary or otherwise. In the case of Robertson v. Smith et al., 2 Court of Probate & Divorce, 43, the court remarked:

"The guiding principle in determining whether the paper is, or is not, of a testamentary character, has been determined to be this:--that it will be held testamentary if it were the intention of the testator that the gifts made by it should be determined on his death. The question, then, is how is that intention to be ascertained? It has long since been decided that if the language of the paper is insufficient, parol testimony may be admitted to ascertain such intention," etc.

The authorities will be found substantially uniform...