Davis v. Eshelman , 160 Kan. 162 ( 1945 )

The opinion of the court was delivered by

Wedell, J.:

This is an appeal from a judgment of the district court in a will case.

Appellant Roy Davis was also the appellant in the appeal from the probate court to the district court. The instrument claimed by appellant to be a will was executed by L. E. Douglass, deceased. Appellant claims all of the decedent’s property under' that instrument passed to the decedent’s son', Jimmy. Mildred F. Main, decedent’s former wife, appellee, claimed all of decedent’s property passed to their three children, including Jimmy, under a former joint and reciprocal will which she and decedent had executed. Appellant did not appear at the hearing for probate at which' time both instruments were presented. The minor son, Jimmy, appeared at that hearing by a guardian ad litem. The probate court upheld appellee’s contention. Appellant later appeared and attempted to contest the former will, to set aside the order of probate and to have the later instrument admitted to probate as the last will and testament of the decedent. The probate court sustained appellee’s objections to appellant’s right to be heard. Appellant appealed to the district court! Appellee objected to appellant’s right to be heard in that court. The parties' differ1 widely with respect to the issue or issues submitted to thfe ‘district‘court for determination. The record 'in the district cdurt'ife highly donfusing with respect to what issue or issues appellant 'and) appellee mteíi'Üed' to submit to that court for determinátion. Thfe only qúe'stíon upon which the district court made specific findings and rendered a judgment pertains to the construction of the instrument in question. Those findings and the judgment rendered are:

“. . . the court finds from the evidence that said purported instrument is not an instrument capable of probate, is not documentary [testamentary] in character, and does not dispose of or attempt to dispose of any property, real, personal or mixed; does not name, designate or appoint an executor, and does not revoke any former will or wills of the said L. E. Douglass, and that said instrument is not the last will and testament of L. E. Douglass, and that therefore Roy C. Davis has no capacity and is not authorized to prosecute the appeal.

“It is therefore ordered that by virtue of the foregoing the appeal of Roy C. Davis should be and is hereby dismissed at the cost of the appellant.”

Some members of this court agree with the findings of the district court and agree that by reason of such findings appellant had no capacity and was not authorized to prosecute the appeal. Some other members of this court do not agree with such findings but believe that upon the basis of ’the record before us appellant disclosed no interest or capacity or such compliance with statutory requirements as entitled him t'o be heard in the probate or district court. They believe the appeal to the district court was properly dismissed 'for those reasons rather' than for the reason assigned by that court. In other words a majority of this court, although for different reasons, believes the appeal was properly dismissed and the judgment ’of the district court should be affirmed.

It follows what has been said herein should not be interpreted as approving or disapproving the construction placed upon the instrument in question by the district court.

The judgment is affirmed.