[410]*410The opinion of the court.was delivered by
West, J.:
These two cases involve the validity of a marriage, a will and a conveyance. In No. 19,220, the plaintiffs, the children of Charles Nordmark, sought to have the will of their father set aside on the ground of undue influence and lack of testamentary capacity. They alleged among other things that for many years prior to his death at the age of eighty-seven their father was feeble of health and unsound of mind, and that the will was made at the instance of his second wife, Sarah Bertha, and that she went through the form of a marriage to the testator in 1906, at a time when he was incapable of entering into a valid contract of marriage. The will gave the estate to the wife, and appointed her executrix, after giving one dollar to each of the plaintiffs. The court decided in favor of the defendant, and made findings of fact to the effect that the first wife died about 1904, and that the testator was legally married to Sarah Bertha Johnson September 5, 1906, and lived with her as his wife to the time of his death, J une 26, 1912, and that when he executed his will on the 8th day of June, 1912, he was of sound mind and memory and capable of executing a valid will and under no restraint or influence, and that the making of the will was his free act and deed. As a matter of law it was concluded that the will was regularly and legally made and executed and admitted to probate.
The plaintiffs complain principally of the trial court’s refusal to find the material facts as requested by them, and of its refusal properly to place the burden of proof to show lack of undue influence. The plaintiffs requested twenty-five findings of fact and suggested thirteen others, all of which were refused. The first list consisted largely of questions touching dates and details of the history of the testator and his family up to the time of his second marriage, his conduct towards [411]*411his children, his health and the conduct of his second wife, and alleged delusion and undue influence. The suggested findings bore especially upon the testator’s prejudice against his children in his last years, his mental condition, and the relations between his children and the second wife and the influence of the latter over him, and his prejudice, delusion and mental capacity. It is claimed that had the proper findings been made in accordance with the facts shown by the testimony the plaintiffs would then be in condition to demonstrate that the wrong legal conclusion was reached. It would seem at first blush that as findings on the matters suggested probably would not have changed the trial court’s view of the ultimate facts their refuseal could not be said to have worked material prejudice to the plaintiffs. But the real question is whether or not the complaining party has been denied a statutory right the refusal of which was error.
The civil code requires that all mere technical errors and irregularities be disregarded when they do not appear to have prejudicially affected the substantial rights of the party complaining, “where it appears upon the whole record that substantial justice has been done by the judgment or order of the trial court.” (Civ. Code, § 581. See, also, Civ. Code, § 141; Saunders v. Railway Co., 86 Kan. 56, 119 Pac. 552.) The code provides for a special verdict, and has done so since 1859. (Compiled Laws, 1862, ch. 26, §§ 286, 287.) The provision then embodied in section 287, that the j ury in certain actions might at their discretion render a general or special verdict, remained until 1870, when by section 7 of chapter 87 of the Laws of that year, original section 287, then section 286 of the civil code (Gen. Stat. 1868, ch. 80, § 286), was amended so as to take away this discretion from the jury, and providing that in all cases the court, at the request of parties or either of them, should “direct the jury to find a special verdict, in writing, upon all or any of the issues in the [412]*412case; and upon like request to instruct the j ury, if they shall render a general verdict, to find upon particular questions of fact, to be stated in writing, and shall direct a written finding thereon: The special verdict or finding must be filed with the clerk and entered in the journal.” This was repealed by section 1 of chapter 91 of the Laws of 1874, and in its stead it was. enacted that “In all cases the jury shall render a general verdict, and the court shall in any case at the request of the parties thereto, or either of them, in addition to the general verdict, direct the j ury to find upon particular questions of fact, to be stated in writing by the party or parties requesting the same.” Section 286 of the code of 1859 was still left untouched, and its exact wording is now found in section 294 of the civil' code of 1909, and together with the amendment of 1874 forms the whole of such section save the provision that the special findings control the general verdict when inconsistent therewith. Hence, while the old-style special verdict by which the jury voluntarily found the facts only and returned no general verdict has not been permitted since 1870, the code still recognizes and defines a special verdict, although always requiring a general verdict also.
In 2 Thompson on Trials, 2d ed., it is said:
“Such a finding of facts is in the nature of a special verdict, and is interpreted and its sufficiency is determined by the same rules. Accordingly, it is laid down that the judge must find facts, and not the mere evidence of facts, and that his finding must not leave a part of the facts to be presumed, but must state all the facts which are deemed material, so that the court will have.nothing to do but declare the' law upon the same.” (§ 2658.)
In National Bank v. Peck, 8 Kan. 660, the court, speaking through Mr. Justice Brewer concerning a complaint that the special verdict there involved did not state all the facts established by the evidence, said:
“What is a special verdict? ... A special ver-[413]*413diet, on the other hand, finds only facts, and leaves to the court the duty both of determining the law and of applying it to the facts. . . . But what facts? How minutely may they, must they, be subdivided? The facts stated in the pleadings; as minutely, and no more so, in the special verdict, than in the petition, answer, and reply. The special verdict must conform to the pleadings. The word ‘facts’ is used in this section in the same sense, and refers to the same things, as when used in section 87 of the code, which declares that a ‘petition must contain a statement of the facts constituting the cause of action in ordinary and concise language, without repetition.’ There are in every cause of action certain essential, substantive facts, certain elements, so to speak. Every pleader knows this when he prepares a petition. The omission of any one of these elements renders the petition defective. The failure to prove one defeats the cause of action. Now these essential elemental facts are the ones the special verdict must find, no more, no less. A history of the case in the nature of a recital of the testimony, or'a detail of the various steps in the transaction is not the function of a special verdict. It responds to the various facts of the petition like a special denial, touching each separately.” (pp. 665, 666.)
In McCandliss v. Kelsey, 16 Kan. 557, it was held that when a case is tried by the.court without a jury and special findings are demanded it is generally the duty of the court to find upon all of the issuable facts, but that this does not require a finding upon matters set forth which are really foreign to the controversy; that an omission to find upon all of the issuable facts will not always compel a reversal, but if the facts which are found compel the judgment which is rendered, regardless of the others not passed upon, the omission is not prejudicial error. In the opinion the writer of the opinion just referred to, speaking for the court, said:
“The case was tried by the court without a jury, and special findings were demanded. In such a case, is it the duty of the court to find specifically upon all the matters put in issue by the allegations in the petition and denials in the answer? and will a failure to discharge this duty compel in all cases a reversal ? It may [414]*414be stated, as a general proposition, that it is the duty of the court to find upon all the issues in the case. . . . It is enough, if the court has found upon all the facts put in issue by the pleadings, material to the controversy.” (p. 558.)
It was further said when there is some pivotal fact on which the case turns the failure to find on some other matter does not necessarily amount to material error. The example given is a finding that in an action on a note for goods sold and delivered full payment had been made before the action was begun. In Briggs v. Eggan, 17 Kan. 589, it appeared that the defendant had in a formal manner presented seventeen conclusions of fact which were wholly refused by the trial court, and this was held to be substantial error, and it was said:
“Of course, the court is not bound to make special findings concerning immaterial facts; nor is the court . bound to find the material facts in any greater detail than is really necessary for the correct decision, by a higher court, of the questions of law involved in the case.” (p. 591.)
In Schuler v. Lashhorn, 67 Kan. 694, 74 Pac. 264, it was held that “Upon the trial of a question of fact by the district court, it is its duty, upon request, to find the material facts established by the evidence, so that exceptions may be taken to its views of the law involved in the trial. Error in this respect will not be presumed, but must be affirmatively shown.” (Syl. ¶ 2.) That was an action to recover real property with damages for its detention. The trial court made special findings of fact, nineteen in number, covering various moves, offers, dealings, occupations, deaths, conveyances, failure to demand recognition of title, recognition of ownership, rental value, ownership, and the making of certain improvements. Mr. Justice Burch, in the opinion, pointed out a number of things which the findings did not show but which the plaintiff’s counsel assumed, and after discussing the conclusiveness of the findings made said:
“When the district court was requested to make find[415]*415ings of fact it was its duty to find the material facts established by the evidence, so that exceptions might be taken to its views of the law involved in the trial.” (p. 700.)
It was pointed out, however, that no motion for modification or to include additional findings was made. It was finally said:
“The findings respond to the issues, cover every fact essential to recovery by the plaintiffs, are all sustained by sufficient competent evidence, and are in harmony with the apparent weight of the evidence. The conclusions of law are legitimate deductions from the facts found and the judgment follows as a necessary and inevitable consequence.” (p. 705.)
In Vickers v. Buck, 70 Kan. 584, 79 Pac. 160, the rule was laid down that when findings of fact are requested “it is error for the court to refuse the request, or to refuse to make such separate findings so definite that the party may have a fair opportunity to except to the decision of the court upon the conclusions of law involved in the trial.” (Syl. ¶ 2.) It was again held, in Harper v. Harper, 83 Kan. 761, 113 Pac. 300, that:
“If the findings and conclusions are clearly stated, so that the conclusions reached by the court can be readily understood, as well as the facts, upon which they are founded, this will be sufficient.” (p. 772.)
There the complaint was that the findings of fact and conclusions of law were not made separately, as requested, and that the facts found required a judgment different from the one rendered. That, too, was a suit to set aside a will on the grounds of mental incapacity and the undue influence of the principal legatee. But the court made thirty-seven findings detailing the amount of property owned by the testator, the fact of his childlessness, where and with whom he lived, his sickness, his health of body and mind just prior to his death, his preparation of a memorandum of his will, the drawing of certain deeds, his consultation with an attorney, the dictation of the will, its deposit in a tin [416]*416box in a bank vault, the failure to disclose the value of the property covered by the residuary clause, the testator’s business ventures with the principal legatee, statements made by the latter about the testator and his property, his conduct upon hearing of his death, his expression of surprise that a will had been made, the possession of the will, the appointment and conduct of the principal legatee as executor, and numerous other matters and things, followed by the finding of mental capacity and freedom from undue influence. It was not strange, therefore, that this court said:
“We think the findings and conclusions in this case are sufficient, and are unable to say that they are erroneous in any particular.” (p. 772.)'
Doubtless they were unnecessarily minute and detailed, but had they embraced nothing but the age, marriage, death, heirs, mental capacity and freedom from undue influence, a different question would have arisen. In Norris v. Jackson, 76 U. S. 125, Mr. Justice Miller had under consideration a provision of the act of March 3,1865, reading as follows:
“The finding of the court upon the facts, which finding shall be general or special, shall have the same effect as the verdict of a jury. . . . When the finding is special, the review may also extend to the determination of the sufficiency of the facts found to support the judgment.” (13 U. S. Stat. at Large, ch. 86, § 4, p. 501.)
In the opinion it was said:
“This special finding has often been considered and described by this court. It is not a mere report of the evidence, but a statement of the ultimate facts on which the law of the case must determine the rights of the parties; a finding of the propositions of fact which the evidence establishes, and not the evidence on which those ultimate facts are supposed to rest.” (p. 127.)
In Anglo-American Land, M. & A. Co. v. Lombard, 132 Fed. 721, 68 C. C. A. 89, the circuit court of appeals of the eighth circuit declared that a special find[417]*417ing of fact should be equivalent to a special verdict of a jury “and should cover all the issues, so that in.the event of proceedings in error, if the €rial court’s conclusions of law are deemed incorrect, and if the proceedings are otherwise without error, the appellate court may, under section 701, Eevised Statutes, direct such judgment as the special finding requires. . . . To meet the requirements of the statute, as defined in the decisions of the supreme court and of the several circuit courts of appeals, a special finding should be a clear and concise statement of the ultimate facts, and not a statement, report, or recapitulation of evidence from which such facts may be found or inferred. The ultimate facts must be so stated that, without inferences, or comparisons, or balancing testimony, or weighing evidence, the case may be determined by the application of pertinent rules of law. If any ultimate fact material to the issues is to be inferred from the whole evidence, or from other facts proved or admitted, the inference must be drawn by the trial court, and the fact must be stated in the findings. Like the special verdict of a jury, a special finding can present only questions of law.” (pp. 733, 734.) In Cointe v. Congregation of St. John the Baptist, 154 Wis. 405, 143 N. W. 180, it was held that facts required to be found are the ultimate, not merely the evidentiary facts.
“The ultimate facts which should be so stated are, generally speaking, the issuable facts which a pleading should contain. They are the facts upon which the plaintiff’s right of recovery or the defendant’s right to defeat a recovery necessarily depends.
“The statement of an ultimate fact frequently includes a legal conclusion from the evidentiary facts.” (Syl. ¶¶2, 3.) .
The action was to recover for a well drilled on the defendant’s land, and it was denied that any contract had been made, either expressly or by ratification or estoppel. In an extended opinion the trial court gave a history of the affair leading up to the controversy and [418]*418concluded that the plaintiff had shown no contract binding on the defendant and that he was not entitled to recover. It does not appear that any request was made for findings, that any were submitted, or that any fault was found with those prepared from the extended opinion referred to, which were practically a repetition thereof. The conclusions were affirmed, but in the opinion it was pointed out by Chief Justice Winslow that the difference between ultimate and evidentiary facts may be illustrated thus: In a personal injury action the evidence may tend to show that the place where the plaintiff worked was dark; the floor was rough or insecure; there was a concealed trap door with insufficient hinges or a rotten barrier; that these facts are evidentiary. The ultimate fact is that the employee was furnished an unsafe place to work, and if such action were tried by the court the findings of fact should not contain a recitation of what this witness or that witness testified to, “but should contain a finding of the ultimate facts, namely, that the place was an unsafe place to work, by reason of the fact that it was dark, or the floor rough, or otherwise.” (p. 417.) At page 418 it was said:
“The ultimate facts which a finding should contain are, generally speaking, the issuable facts which a pleading should contain (sec. 2646, Stats.), and practically the same as the facts which a special verdict should contain (secs. 2857, 2858, Stats.) ... In the present case two or three typewritten pages would have sufficed to ‘state the ultimate facts fully and completely, whereas ten printed pages have been so used.”
The chief justice also pointed out what he regarded as the ultimate facts on which the pivotal question of liability rested, and said:
“So in the present case the ultimate facts in issue were few and simple, namely: (1) Did the board of directors of the defendant corporation, either by majority vote or by unanimous vote of all, contract with the plaintiff for the construction of the well? (2) If not, had the corporation, by the course of its business [419]*419in the past, held out to the public that the pastor and bishop were its agents in the transaction of business, and authorized to make contracts of this nature on its behalf? (3) If not, then had the corporation accepted and made such beneficial use of the well that it has ratified the unauthorized acts of its officers in causing it to be dug? The answers to these questions are the final inferences of fact which are to be drawn from and are the logical result of the subordinate or merely evi-dentiary facts.” (p. 417.)
In a Note in 24 L. R. A., n. s., beginning at page 1 and ending at page 79, the subject of special verdicts, including the difference between facts and evidence and between evidentiary and ultimate facts, is exhaustively covered. Practically the uniform import of the multitudinous decisions cited is to the effect already indicated touching special findings when made by the court. Over and over again it is held that such findings are to include such facts embraced within the issues as give rise to legal conclusions. The most common expression is the one used by this court so frequently, “material, issuable facts.” By turning to the petition in No. 19,220 it will be seen that the plaintiffs alleged the following among other facts: That at the time and for many years before the will was executed, Charles Nordmark was of unsound mind; that he was about eighty-seven years of age, very feeble of health; that he did not himself sign the will; that his name was not signed thereto by another person in his presence and by his express direction; that whatever he did touching the making and execution of the will was at the special instance of the defendant; that it was a direct result of her fraud .and duress and undue influence; that since the marriage they had resided together alone in Scandia;.that she obtained his full confidence; that she had charge of his business affairs; that by false representations she prejudiced him against his children and induced him to believe that they cared nothing for him but only desired his property; that she alone cared for him and would look after his welfare; that these false represen[420]*420tations were made by her for the purpose of getting control of the property; that she would not permit the plaintiffs to visit their father; that she falsely led him to believe that they did not want to see him but intentionally remained away; that she gained such control over his mind and will that he would do whatever she dictated; that at the time of the execution of the will he was on his deathbed, and was extremely weak, both in body and mind.
Of course in one sense of the word these are not ultimate facts. In the extreme sense, the ultimate fact was his condition of mind, but these weré the material issuable facts which the plaintiffs pleaded, which the defendant denied, and on which evidence was introduced.
The court was given to understand by a long list of requested findings and by another list of suggested findings that the plaintiffs desired to invoke their statutory right to have the material issuable facts on which evidence had been introduced found by the court, not merely the two general facts as to sanity of the testator and the matter of undue influence. The pivotal, determinative facts often are and must be based on the materiál issuable facts.
Very many of the requested and suggested findings were such and in such form that the court properly refused them, but this in no wise relieved it of the statutory duty to make such findings as under the issues and the evidence the plaintiffs were entitled to. (A. T. & S. F. Rld. Co. v. Ferry, 28 Kan. 686, 689; Vickers v. Buck. 70 Kan. 584, 586, 79 Pac. 160.) After the refusal of all the requested and suggested findings and the return of those made by the court, the plaintiffs in their motion for a new trial complained of error in refusing and making findings, and on the same day moved the court to set aside those made and to make new ones and to modify those made “for the reasons, among others, that the findings of fact as heretofore made by this court and filed November 11, 1913, do not cover all the [421]*421material facts established by the evidence in this action.” Had the findings contemplated by the statute been made, then the plaintiffs could have presented them as a basis for their contention that the conclusions of law were not sustained thereby, and, as shown by various authorities already quoted, it is precisely for this purpose that this statutory right is given. As was said in A. T. & S. F. Rld. Co. v. Ferry, 28 Kan. 686:
“The facts set forth and alleged in one pleading and denied by another, or considered denied (as is the case with reference to facts set forth and alleged in the reply), are the facts with reference to which the court should make its findings or conclusions of fact. These ■ facts are often called the issuable facts, and the court should make special findings or conclusions with reference to them whenever either party so requests.” (p. 689.)
In the instance cited by the supreme court of Wisconsin, the one conclusive fact was as to the matter of a safe place to work, but that one final fact was reached by the consideration of the material issuable facts upon which evidence had been introduced touching the presence or absence of light, the condition of the floor, the presence or absence of a trap door therein, and the question whether such trap door had sufficient hinges or a rotten barrier. Whether these be called ultimate facts or what Blackstone called “naked facts” or what some courts call “essential facts” (Note, 24 L. R. A., n. s., 25) or “inferential facts” or “probative facts” (p. 26) or “substantive facts” (p. 26) they may be said to be those material issuable facts covered by the pleadings and by the evidence, which go to make up the basis of the rights claimed by the one or both of the parties.
While it can not be said either that the decree rendered was improper or that the findings on the matters suggested would have led the court to a different conclusion, it can and must be said that the plaintiffs were denied a right, which denial amounts to error and deprives the plaintiffs of the advantage of a trial con[422]*422ducted in accordance with the letter and spirit of the statute.
Certain other complaints have been examined and found to be not well founded.
There is no occasion to retry the cause, however, because the court has heard all the evidence and has carefully considered it.
The decreé in No. 19,220 is therefore reversed and the cause remanded with directions to make findings of fact as suggested herein and to take such further necessary steps as may be in accordance herewith.
No. 19,219 involves the validity of the testator’s second marriage, and, as frankly stated by counsel in his brief, “If the will is upheld and no error is found in the trial of that case, and this court affirms the trial court in all particulars therein, then all the other issues of these two cases are disposed of.” This, is necessarily true, for, as the counsel also suggests, even if the transfers should be set aside and the property returned to the estate it would pass under the will to the defendant.
We have examined the findings requested and those made and the conclusions of law, and the latter so far as the validity of the marriage is concerned are approved, and the corresponding portion of the decree is affirmed.
The decree as to the transfer of the property is reversed and the cause is remanded for further proceedings based upon the evidence already heard, in accordance herewith.