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Gibbons v. Redmond

49 P.2d 1035, 142 Kan. 417, 103 A.L.R. 893, 1935 Kan. LEXIS 354
CourtSupreme Court of Kansas
DecidedOctober 5, 1935
DocketNo. 32,341
StatusPublished
Cited by5 cases

This text of 49 P.2d 1035 (Gibbons v. Redmond) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gibbons v. Redmond, 49 P.2d 1035, 142 Kan. 417, 103 A.L.R. 893, 1935 Kan. LEXIS 354 (kan 1935).

Opinion

The opinion of the court was delivered by

Burch, C. J.:

The action was one to contest a will on the ground of mental incapacity of the testator. The district court set aside the will, and those interested in sustaining it appealed.

The will was that of Thomas McDonald, a bachelor, approximately sixty-six years old. He was the son of Patrick McDonald and wife, and had a half sister, born of the same mother but not the same father. The plaintiffs are children of the half sister, nephews and nieces of the testator, and his sole heirs at law. They were given $5 each by the will. The defendants are the beneficiaries under the will, and the executor. The beneficiaries are strangers to the blood of the testator. They are children of Christopher and Mary E. Redmond, who were close friends of the testator and his [418]*418father and mother. The will provided that all the testator’s property, real and personal, should be converted into money and the money should be divided equally among these children.

On March 4, 1933, the testator suffered a cerebral hemorrhage, resulting in partial paralysis of one side of his body. The next day he was taken to a hospital, where he remained until April 15, when he died. The will was executed at the hospital on March 23. It is conceded by defendants that while the testator was at the hospital he was at times irrational. It is conceded by plaintiffs that he was •at times rational. Therefore the question was whether the testator possessed sufficient mental capacity to make the will at the time it was executed. That does not mean that no evidence could be considered except such as immediately related to the time the testator had the pencil with which the will was signed, in his hand. No such attitude was assumed at the trial, and the testimony took a wide range.

Defendants’ principal contentions are these:

“First: All the substantial evidence in this case conclusively shows that the testator, Thomas McDonald, had testamentary capacity at the time he executed his will.
“Conversely, there is no substantial or convincing evidence to sustain the finding of the trial court that the testator did not have testamentary capacity at the time he executed his will.”

These propositions serve as a basis for an argument which should have been, and doubtless was, addressed to the trial court. The rules relating to consideration on appeal of credibility of witnesses, of weight of evidence, of conflicts of evidence, and of differing inferences from evidence, are well known, and the court does not propose to review the evidence. Some observations will be made which will serve primarily to develop a question of law relating to admissibility of testimony, and the observations will be extended to include some other evidence relating to the testator’s mental condition.

Beginning with the very time the will was executed, the name of the testator was not written at the end of the will. Instead of that, the testator produced a grandiosity, of which the following is a reproduction:

[419]

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Cite This Page — Counsel Stack

Bluebook (online)
49 P.2d 1035, 142 Kan. 417, 103 A.L.R. 893, 1935 Kan. LEXIS 354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gibbons-v-redmond-kan-1935.