Zirkle v. Leonard

• Decision Date: 10 March 1900
• Docket Number: 11,545
• Citation: 61 Kan. 636,60 P. 318
• Parties: WILLIAM A. ZIRKLE et al. v. MARYETTA LEONARD et al
• Court: Kansas Supreme Court

60 P. 318

61 Kan. 636

WILLIAM A. ZIRKLE et al. v. MARYETTA LEONARD et al

No. 11,545

Supreme Court of Kansas

March 10, 1900

Decided January, 1900.

Error from Shawnee district court; Z. T. HAZEN, judge.

Judgment affirmed.

Wm. R Hazen, for plaintiffs in error.

Vance & Campbell, for defendants in error.

OPINION

SMITH, J.:

In this action the validity of a will was involved. It was attacked for want of mental capacity in the testator, undue influence and uncertainty in the description of real estate devised.

Much testimony was introduced, given by non-expert witnesses who were acquainted with the testator, who gave their opinions as to his sanity and mental capacity. In the admission of such testimony the court required that the opinion given should be based upon the facts which each witness had detailed on the stand, and confined their conclusions to such specific facts. This ruling is alleged to be erroneous. As we understand the argument for plaintiff in error, it is claimed that such witnesses should have been permitted to give opinions as the result of their observations, without stating any of the facts upon which they were based. This certainly would be unsatisfactory and of doubtful aid to the court or jury trying the question of mental capacity. There would be nothing to indicate the extent of the witnesses' knowledge of the habits, manner or peculiarities of the person regarding whose capacity they expressed an opinion. The authorities are in accord with the ruling made by the trial court. The giving of such opinions at all by non-experts is a rule of necessity. If all the facts on which the opinion is based could be placed before the jury, the latter could judge of the sanity or insanity as well as the witness, but there are certain indicia of mental disorder which are indescribable. Peculiar conduct acts and deportment of the person may create a fixed and reliable judgment in the mind of an observer which could not be conveyed in words to the jury. A person may appear to be sad, dejected, sick, or well, yet such appearance could not be described satisfactorily, and hence a conclusion is permitted to be given. A statement of facts detailed by the witness tends to affect the weight to be given to his opinion, affording the court or jury opportunity to judge of his intimacy with the person about whom he is testifying, his facilities for observation, and the acuteness with which he has discerned peculiarities which might escape the notice of others. (Baughman v. Baughman, 32 Kan. 538, 4 P. 1003; The State v. Beuerman, 59 id. 586, 53 P. 874; Rog. Exp. Test., 2d ed., 9; American Bible Society et al. v. Price, 115 Ill. 623, 5 N.E. 126; The Carthage Turnpike Company v. Andrews, 102 Ind. 138, 1 N.E. 364; Shaver v. McCarthy, 110 Pa. 339, 5 A. 614.)

The devise to Maryetta Leonard is in the following language "All the land I now have in the northwest quarter of section twenty (20), township thirteen (13), range seventeen (17), containing about seventy-two (72) acres more or less. Also one rod on the north side of section twenty (20) not heretofore willed or deeded to any one." The testator did not own seventy-two acres of land in the northwest quarter of section 20, mentioned in the will, but did own a tract of that size in the southwest quarter of section 20. Counsel for plaintiff in error contends that this erroneous description cannot be aided by any rule of construction which looks beyond the expressed description of the land contained in the will. This would be so were it not for the words employed preceding and...