Coburn v. Simpson

Citations

• 102 Kan. 234
• 170 P. 383
• 1918 Kan. LEXIS 14

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Written Instrument — Purporting to Transfer Real Estate — Testamentary in character. An instrument which described itself as a “will testament,” by which the signer undertook to “will” a part of his .property to his sons, and the remainder at his death to his widow, who was named as administratrix, no word being used appropriate to a present grant, held to have been wholly testamentary in character, although acknowledged and recorded and not witnessed.</p> <p>2. Trial — Stipulation—Judgment on Pleadings and Stipulation — Error. When a cause was called for trial the parties filed a stipulation that certain statements were facts in the case, a right to introduce further evidence being expressly reserved. The plaintiffs then moved for judgment in their favor on the pleadings and findings. Held, that such a motion could only be rightfully sustained if the answer failed to state a defense, or if it or the agreed statement of facts contained something fatal to the defendant’s recovery. For the purpose of such motion the allegations of the answer, unless contradicted by the agreed statement, must be assumed to be true, although not referred to in the stipulation. „</p> <p>3. Written Instrument — Pleadings—Issues—Title—Gifts. The answer, although characterizing as a deed the instrument described in the foregoing paragraph number one, and relying on it as conveying title to the land therein referred to, held to have presented also the issue of the passing of title by an oral gift, followed by possession and lasting and valuable improvements.</p>