The opinion of the court was delivered by
Fontron, J.:
This case involves the validity of a will. Mary Veach, to whom we will refer hereafter either as plaintiff or by name, is the proponent of the purported last will and testament of her brother, Joe Bernatzki. Joe’s three children, Elizabeth Stiebe, Richard Bernatzki and Margaret Mulford are contesting the will on the basis of both undue influence and lack of testamentary capacity. We shall refer to these contestants collectively as defendants. The trial court found the will to be void and that probate should be denied. The plaintiff has appealed from that decision.
The background of the case is somewhat depressing. In 1954 Joe Bernatzki was convicted on three charges of crimes against nature and was sentenced to three consecutive terms of from one to ten years in the Kansas State Penitentiary. Joe was paroled in 1958 but the following year his parole was revoked for some undisclosed infraction and he was recommitted to the penitentiary, where he remained until his death on May 26, 1966.
On February 14, 1962, Joe made a will which was notarized but not witnessed. He sent this will to his sister Mary for safekeeping, and no attempt has ever been made to have it admitted to probate.
Nearly three years later, on December 30, 1964, Joe executed a second will, properly signed and witnessed. This was prepared by Mr. Donald L. Burnett, a Larned attorney whom Mary Veach consulted for that purpose at brother Joe’s request. In this will Joe devised and bequeathed $1 to each of his three children, $2,500 to his brother Raymond, $2,000 to his sister Maggie and the remainder of his property, including an account in the Inter-State [133]*133Federal Savings & Loan Association of Kansas City, Kansas, to his sister, Mary. Mary proffered this will for probate. Its provisions are the same as those in the notarized will of 1962, with this one exception: a bequest of $1,000 to his daughter Margaret, contained in the 1962 will, was reduced to the sum of $1.
After being transferred from probate court to district court for trial, the case was heard before Judge Wildgen. A large amount of evidence was introduced by deposition and by oral testimony and the trial court, after making extensive findings of fact, concluded that the will was invalid on two grounds: (1) That Joe Bernatzki was not of sound mind at the time of signing his last will and testament on December 30, 1964, and (2) that said will was the result of undue influence on the part of the principal beneficiary, Mary Veach.
The plaintiff’s primary argument on appeal is directed to the sufficiency of the evidence. In addressing ourselves to that question, we again reiterate the venerable rule, now grown hoary with age, that findings of the trial court which are supported by substantial competent evidence are not to be overturned on appellate review. (See cases in 1 Hatcher’s Kansas Digest [Rev. Ed.] Appeal & Error, § 507.) This principle is not seriously disputed by the plaintiff who takes the position and urges with emphasis that much of the evidence introduced was incompetent, thus leaving the findings without substantial support.
No good purpose would be served by summarizing the testimony of the individual witnesses. Some twenty-two persons testified in all, including medical doctors, and it is sufficient for us to state at this time that there is evidence in the record to the following effect: For at least 12 years before his death, which occurred at about age 75, Joe Bernatzki suffered from diabetes and syphilis; in April, 1965, a medical examination disclosed that in addition to those two diseases Joe was also afflicted with arteriosclerosis, heart disease and emphysema. In June, 1965, Joe failed to recognize friends whom he had known for years, even when they identified themselves to him; the will of December 30, 1964, described property no longer owned by Joe, i. e., the account in a Kansas City savings and loan company which Joe had withdrawn July 10, 1962, and placed in the prison inmate fund. Joe’s fellow inmates would often take advantage of him. Joe’s doctor who had treated him [134]*134prior to his incarceration testified that in his opinion Joe was of unsound mind on December 30, 1964, when the will was executed. In the opinion of a second doctor Joe was mentally incompetent in June, 1965, some four months after the will was signed.
The test of testamentary capacity is whether the testator, at the time of making his will, knew what property he possessed, knew where he wanted his property to go and understood who were the natural objects of his bounty. (In re Estate of Walter, 167 Kan. 627, 208 P. 2d 262.) The focal point in time, where mental capacity is in issue, is the actual date of the will’s execution, but evidence of capacity or incapacity, both before and after that date, is admissible and relevant in the investigation into mental competency. (In re Estate of Walter, supra.)
Judged by these elementary standards, we believe the evidence heretofore outlined is sufficient to support the trial court’s finding that Joe Bernatzki lacked testamentary capacity at the time the will was executed on December 30, 1964.
It is strenuously argued, however, that the court admitted incompetent evidence which it considered in finding that Joe Bernatzki was of unsound mind at the time he executed the will. The evidence which has been challenged was of two types: (1) Prison medical records which were identified by Warden Crouse, and (2) testimony of two medical doctors appearing for the defendants whose opinions were based, at least in part, on the records identified by Crouse.
The medical records consisted primarily of (1) Joe’s records of admittance to and treatment in the prison hospital on a number of occasions during his long incarceration, and (2) reports from the Kansas Reception and Diagnostic Center, where Joe was a patient from April 2,1965, to April 9, 1965. One of the latter reports was a Medical Case Summary of Joe’s physical examination at the Center which was signed by Richard D. Nabours, M. D.; the other report from the Center was a Psychiatric Diagnostic Report over the signature of Karl K. Targownik, M. D., Clinical Director of the Center.
In our view, the objections to the medical records are unsound. Under the provisions of K. S. A. 60-460 (m), business entries are admissible in evidence as constituting exceptions to the hearsay rule. This statutory rule, for all practical purposes, is the same as that embodied in the Uniform Business Records as Evidence Act.
[135]*135Although we are not aware of any decision of this court squarely in point, our research reveals that in jurisdictions having statutes similar to ours, hospital records are generally held to be admissible in evidence. (32 C. J. S., Evidence, § 728b, pp. 1033-1036; Anno., 120 A. L. R. 1124, Hospital Record as Evidence; Anno., 44 A. L. R. 2d 553, Evidence—Hospital Records.)
The medical records of Joe’s hospitalization and treatment in the penitentiary hospital, itself, clearly are admissible under the business entry statute, and we entertain the opinion that the medical records of the Reception and Diagnostic Center fall essentially within the same category. The Center was established by legislative enactment as a public institution under the general supervision, control and management of the state director of penal institutions. (K. S. A. 76-24a02, 24a04.) Its primary function, as set forth in K. S. A. 1968 Supp.
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the court was delivered by
Fontron, J.:
This case involves the validity of a will. Mary Veach, to whom we will refer hereafter either as plaintiff or by name, is the proponent of the purported last will and testament of her brother, Joe Bernatzki. Joe’s three children, Elizabeth Stiebe, Richard Bernatzki and Margaret Mulford are contesting the will on the basis of both undue influence and lack of testamentary capacity. We shall refer to these contestants collectively as defendants. The trial court found the will to be void and that probate should be denied. The plaintiff has appealed from that decision.
The background of the case is somewhat depressing. In 1954 Joe Bernatzki was convicted on three charges of crimes against nature and was sentenced to three consecutive terms of from one to ten years in the Kansas State Penitentiary. Joe was paroled in 1958 but the following year his parole was revoked for some undisclosed infraction and he was recommitted to the penitentiary, where he remained until his death on May 26, 1966.
On February 14, 1962, Joe made a will which was notarized but not witnessed. He sent this will to his sister Mary for safekeeping, and no attempt has ever been made to have it admitted to probate.
Nearly three years later, on December 30, 1964, Joe executed a second will, properly signed and witnessed. This was prepared by Mr. Donald L. Burnett, a Larned attorney whom Mary Veach consulted for that purpose at brother Joe’s request. In this will Joe devised and bequeathed $1 to each of his three children, $2,500 to his brother Raymond, $2,000 to his sister Maggie and the remainder of his property, including an account in the Inter-State [133]*133Federal Savings & Loan Association of Kansas City, Kansas, to his sister, Mary. Mary proffered this will for probate. Its provisions are the same as those in the notarized will of 1962, with this one exception: a bequest of $1,000 to his daughter Margaret, contained in the 1962 will, was reduced to the sum of $1.
After being transferred from probate court to district court for trial, the case was heard before Judge Wildgen. A large amount of evidence was introduced by deposition and by oral testimony and the trial court, after making extensive findings of fact, concluded that the will was invalid on two grounds: (1) That Joe Bernatzki was not of sound mind at the time of signing his last will and testament on December 30, 1964, and (2) that said will was the result of undue influence on the part of the principal beneficiary, Mary Veach.
The plaintiff’s primary argument on appeal is directed to the sufficiency of the evidence. In addressing ourselves to that question, we again reiterate the venerable rule, now grown hoary with age, that findings of the trial court which are supported by substantial competent evidence are not to be overturned on appellate review. (See cases in 1 Hatcher’s Kansas Digest [Rev. Ed.] Appeal & Error, § 507.) This principle is not seriously disputed by the plaintiff who takes the position and urges with emphasis that much of the evidence introduced was incompetent, thus leaving the findings without substantial support.
No good purpose would be served by summarizing the testimony of the individual witnesses. Some twenty-two persons testified in all, including medical doctors, and it is sufficient for us to state at this time that there is evidence in the record to the following effect: For at least 12 years before his death, which occurred at about age 75, Joe Bernatzki suffered from diabetes and syphilis; in April, 1965, a medical examination disclosed that in addition to those two diseases Joe was also afflicted with arteriosclerosis, heart disease and emphysema. In June, 1965, Joe failed to recognize friends whom he had known for years, even when they identified themselves to him; the will of December 30, 1964, described property no longer owned by Joe, i. e., the account in a Kansas City savings and loan company which Joe had withdrawn July 10, 1962, and placed in the prison inmate fund. Joe’s fellow inmates would often take advantage of him. Joe’s doctor who had treated him [134]*134prior to his incarceration testified that in his opinion Joe was of unsound mind on December 30, 1964, when the will was executed. In the opinion of a second doctor Joe was mentally incompetent in June, 1965, some four months after the will was signed.
The test of testamentary capacity is whether the testator, at the time of making his will, knew what property he possessed, knew where he wanted his property to go and understood who were the natural objects of his bounty. (In re Estate of Walter, 167 Kan. 627, 208 P. 2d 262.) The focal point in time, where mental capacity is in issue, is the actual date of the will’s execution, but evidence of capacity or incapacity, both before and after that date, is admissible and relevant in the investigation into mental competency. (In re Estate of Walter, supra.)
Judged by these elementary standards, we believe the evidence heretofore outlined is sufficient to support the trial court’s finding that Joe Bernatzki lacked testamentary capacity at the time the will was executed on December 30, 1964.
It is strenuously argued, however, that the court admitted incompetent evidence which it considered in finding that Joe Bernatzki was of unsound mind at the time he executed the will. The evidence which has been challenged was of two types: (1) Prison medical records which were identified by Warden Crouse, and (2) testimony of two medical doctors appearing for the defendants whose opinions were based, at least in part, on the records identified by Crouse.
The medical records consisted primarily of (1) Joe’s records of admittance to and treatment in the prison hospital on a number of occasions during his long incarceration, and (2) reports from the Kansas Reception and Diagnostic Center, where Joe was a patient from April 2,1965, to April 9, 1965. One of the latter reports was a Medical Case Summary of Joe’s physical examination at the Center which was signed by Richard D. Nabours, M. D.; the other report from the Center was a Psychiatric Diagnostic Report over the signature of Karl K. Targownik, M. D., Clinical Director of the Center.
In our view, the objections to the medical records are unsound. Under the provisions of K. S. A. 60-460 (m), business entries are admissible in evidence as constituting exceptions to the hearsay rule. This statutory rule, for all practical purposes, is the same as that embodied in the Uniform Business Records as Evidence Act.
[135]*135Although we are not aware of any decision of this court squarely in point, our research reveals that in jurisdictions having statutes similar to ours, hospital records are generally held to be admissible in evidence. (32 C. J. S., Evidence, § 728b, pp. 1033-1036; Anno., 120 A. L. R. 1124, Hospital Record as Evidence; Anno., 44 A. L. R. 2d 553, Evidence—Hospital Records.)
The medical records of Joe’s hospitalization and treatment in the penitentiary hospital, itself, clearly are admissible under the business entry statute, and we entertain the opinion that the medical records of the Reception and Diagnostic Center fall essentially within the same category. The Center was established by legislative enactment as a public institution under the general supervision, control and management of the state director of penal institutions. (K. S. A. 76-24a02, 24a04.) Its primary function, as set forth in K. S. A. 1968 Supp. 76-24a03 is to examine and study male felony offenders sentenced by the courts of this state so that each may be assigned to an appropriate penal institution. In addition, the director may make requisition on the warden of the penitentiary and may transfer any prisoner to the Center for examination and study. (K. S. A. 76-24a07.) When the examination and study is concluded the prisoner shall be assigned to a penal institution for confinement in like manner as new prisoners.
We have held the Kansas Reception and Diagnostic Center to be a state penal institution, and a transfer from the penitentiary to the center to be simply an administrative transfer within the penal system. (State v. Gordon, 203 Kan. 69, 453 P. 2d 80.) The record of examination and diagnosis made by a medical doctor of a patient transferred to the Center from the penitentiary for examination and study and then returned to the penitentiary is, in our judgment, properly included in the penitentiary records as a part of the patient’s hospital record and is admissible in evidence as such.
No claim appears to be made that the doctors who testified on behalf of the defendants were not qualified in the field of medicine. Being medical experts they were entitled, by virtue of the provisions of K. S. A. 60-456 (b) (1), to express opinions on facts personally known to them or made known to them at the trial. In Casey v. Phillips Pipeline Co., 199 Kan. 538, 431 P. 2d 518, this court, in considering the import of this statute, declared:
“. . . The statute requires that the expert witness base his testimony upon facts personally perceived by or known to him or made known to him [136]*136at the hearing. ‘Perceived’ means knowledge acquired through one’s own senses (K. S. A. 60-459 [c]), and made known’ refers to facts put in evidence. The rule must be considered in connection with K. S. A. 60-458 by which it is unnecessary for the witness to specify the data before expressing his opinion.” (p. 546.)
Plaintiff cites two recent decisions of this court in support of her contention that the doctors’ opinions were erroneously admitted. We think neither case is controlling. In Love v. Common School District, 192 Kan. 780, 391 P. 2d 152, we held that an appraiser employed in the county assessor’s office could not testify to the fair market value of real estate based on the assessment made by an out-of-state firm employed to fix values for tax purposes. That case can readily be distinguished from the present one.
The situation in Kreh v. Trinkle, 185 Kan. 329, 343 P. 2d 213, was simply this: An X-ray report made by one doctor was offered in evidence through the identification of another doctor. For obvious reasons we held the exhibit was inadmissible.
Inasmuch as portions of the testimony heard by the trial court were offered by deposition, the plaintiff urges that we invoke the rule that where evidence is written or documentary in form, by way of deposition, stipulation or transcript, an appellate court will decide for itself what facts have been established, substantially as in an original action. (In re Estate of Kemper, 157 Kan. 727, 145 P. 2d 103; White v. Turner, 164 Kan. 659, 192 P. 2d 200; North River Ins. Co. v. Aetna Finance Co., 186 Kan. 758, 352 P. 2d 1066.)
However, the rule is not without limitation. In discussing its application, this court, in Boese v. Crane, 182 Kan. 777, 324 P. 2d 188, spoke as follows:
". . . This rule, however, is not universally applied under all conditions. It has been applied where all the evidence is in written form (White v. Turner, supra); where the only oral testimony adduced has little, if any, bearing upon the principal question presented and all other evidence is in written form (In re Estate of Kemper, supra); but has not been applied to testimony written in form where the court would be called upon to disregard the testimony of one witness and accept as true the testimony of others (Bolin v. Johnson County Nat'l Bank, 160 Kan. 61, 159 P. 2d 477 [deposition testimony]; Karlan Furniture Co. v. Richardson, 182 Kan. 756, 324 P. 2d 180, No. 40,871, decided April 12, 1958 [stipulated testimony]; and see, also, Akins v. Illinois Bankers Life Assurance Co., 166 Kan. 648, 203 P. 2d 180).” (p. 780.)
The facts of this case, as revealed in the record, do not call for application of the rule. For one thing, much of the evidence produced at the trial was oral. Furthermore, while the defendants’ [137]*137medical testimony was presented by deposition, one of tbe plaintiff’s own medical experts testified by deposition also, basing a contrary opinion in large part on the same medical records relied on by the defendants’ experts. No challenge was made to the qualifications, competence or medical proficiency of the experts on either side. We find little here which would justify this court in disregarding the testimony of one set of experts at the expense of the other. That responsibility lay with the trial court which could assess the relative worth of the conflicting medical evidence against the backdrop of oral testimony given at the hearing.
We are obliged to conclude that the trial court’s finding to the effect that Joe Bernatzki’s will was void because of mental unsoundness was based on substantial competent evidence even though the evidence, on the whole, was highly conflicting. Due to this conclusion on our part, it would be a useless gesture to consider whether the will was procured by undue influence.
Reversible error does not appear and the judgment is affirmed.