Weber's Estate, In re, 43376

• Court: United States State Supreme Court of Kansas
• Citation: 192 Kan. 258,387 P.2d 165
• Docket Number: No. 43376,43376
• Parties: In the Matter of the ESTATE of Henry H. WEBER, Deceased. Ben HEER, Executor of the Estate of Henry H. Weber, Deceased, Appellee, v. R. R. BENNETT, Guardian of the Person and Estate of Rosa Weber, an Incompetent Person, et al., Appellant.
• Decision Date: 07 December 1963

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387 P.2d 165 192 Kan. 258 In the Matter of the ESTATE of Henry H. WEBER, Deceased.
Ben HEER, Executor of the Estate of Henry H. Weber, Deceased, Appellee,
v.
R. R. BENNETT, Guardian of the Person and Estate of Rosa
Weber, an Incompetent Person, et al., Appellant. No. 43376. Supreme Court of Kansas. Dec. 7, 1963.

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Syllabus by the Court

1. One who attests and subscribes a will as a witness does more than witness the signature. He should be at least reasonably well satisfied of the testamentary capacity of the testator and that he is not under restraint or undue influence.

2. In a proceeding to admit a will to probate, the record is examined, and it is held to show the purported will was not signed or acknowledged in the present of two witnesses and not attested by them in testator's presence as required by G.S.1949, 59-606.

Charles D. Green, Manhattan, and Richard C. Wells and Charles S. Arthur, Manhattan, on the briefs, for appellant.

Richard D. Rogers, Manhattan, and John F. Stites, Manhattan, C. L. Hoover and Robert A. Schermerhorn, Junction City, on the brief, for appellee.

WERTZ, Justice.

This was a proceeding to admit a document to probate as the last will and testament of Henry H. Weber. The facts are undisputed and are substantially as follows:

Henry H. Weber, the decedent, died November 21, 1960. At the time of his death he was seventy-three years of age, lawfully married to Rosa Weber, who had been adjudicated an incompetent person, and who, on the above-mentioned date, was, and had been for several years prior thereto, hospitalized at Topeka State Hospital.

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Shortly after 12:00 p.m. on November 16, 1960, Henry Weber went to the home of Ben Heer in Riley. Mr. Heer was not at home but his wife was, and Mr. Weber advised Mrs. Heer he was ill and needed help to get into the hospital. He stated he wished to go to the Riley County Hospital in Manhattan. Mrs. Heer telephoned the hospital and made arrangements to have Mr. Weber admitted.

[192 Kan. 259] After arrangements were completed Mrs. Heer offered to put Mr. Weber's clothes in a suitcase and otherwise help him prepare to go to the hospital. Next, she called a neighbor who in turn went to where Mr. Heer was working, which was about four miles from Riley, and told Mr. Heer that Henry Weber was at Heer's home and wanted to see him. Heer went immediately to his home. When he arrived Weber advised Heer of his illness and of his desire to make a will leaving one-half of his estate to his wife and one-half to his niece, Lillian Price. Heer and Weber then decided to go to see Harold Holmes, president of the Riley State Bank, to have the will prepared.

The distance from the Heer residence to the bank was three or four blocks. The two men drove to the bank, each in his own automobile. Mr. Weber parked his car at an angle against the curb of the street and beneath a window on the north side of the bank and asked Mr. Heer, who had parked on the east side and had come over to the Weber car, to see if Mr. Holmes would come out to the car and talk to him. Weber remained in his car and Heer went into the bank and talked to Holmes who then came out and got into the front seat of Weber's car. At Weber's request Heer got into the back seat of the automobile. It was a chilly November day and the car windows were kept closed. Weber explained to Holmes how he desired to dispose of his property, one-half to be left to his wife and one-half to his niece, and that he wanted Heer to be his executor. Holmes took notes as Weber talked. After Holmes concluded taking notes he went back into the bank and prepared the purported will on a printed form captioned 'Last Will and Testament' by filling in a portion of the blank spaces thereof with the information contained in the notes he had made, except that he failed to mention Weber's wife in the purported will.

The third paragraph of the will reads:

'Third. I give, devise and bequeath to My Niece, Lillian Price of Junction City, Kansas My share of land situated in the Eureka Valley in Ogden and Manhattan Townships also My share of all Real estate located in Madison Township, Riley County Kansas and I do devise and bequeath all the rest and residue of my estate both real, personal and mixed to My Niece Lillian Price, any and all, money, stocks or Bonds, any and all personal property which I may possess at my death, whatsoever.'

The italicized portion of the above quotation was that part typed from Holmes' notes onto the printed will form.

While Holmes was inside the bank he directed three bank employees,[192 Kan. 260] Mr. and Mrs. Chamberlain and Mrs. Carlson, to go to and stand in front of a closed window in the bank in order that they could serve as witnesses to the signing of the will. The window was approximately eight to ten feet from where Weber was sitting in his closed automobile.

About fifteen minutes later Holmes returned to Weber's automobile with a clipboard to which the purported will was fastened. Holmes re-entered Weber's automobile and handed the document to him. Weber read the document, Holmes and Heer being in the automobile at this time.

Holmes and Weber having previously discussed the need for witnesses, Holmes directed Weber's attention to the window of the bank where the above-named bank employees were standing. By waving to them, Weber indicated he saw them, and they in turn waved back to him. After looking the purported will over, Weber placed the clipboard on the steering wheel of his automobile where it could be seen through the

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closed windows by the witnesses, and signed the document.

Holmes then returned to the bank with the document, and there, standing before the bank window as heretofore described, the witnesses signed their names. The table upon which the signing occurred was against the window but the table top was a foot to a foot and a half beneath the window sill. Hence Weber could see the witnesses in the window as they signed but could not see the pen or the purported will on the table at the time of signing. Only that portion of the body of each witness in the window could be seen by him.

After the three...