Dreisbach v. Spring

Citations

• 93 Kan. 240
• 144 P. 195
• 1914 Kan. LEXIS 417

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Will — Action to Set Aside — Supreme Court Not a Trier of Facts. Section 581 of the civil code contains nothing requiring or authorizing this court to retry facts passed upon by the trial court when its conclusion is supported by competent testimony.</p> <p>2. Will — Testamentary Capacity — Unreasonable, Ilwrsh, Unjust Bequests. When testamentary capacity is established or unsuccessfully attacked, a will can not be set aside because juries or courts called upon to review the disposition of property made by the testator may feel that such disposition was unreasonable, unaccountable, harsh or unjust.</p> <p>3. Will — Acceptance of Bequest by Legatee no Estoppel to Contest. The acceptance by a legatee of a small bequest, when ignorant of the facts and of her rights, will not estop such legatee from maintaining a suit to set aside the will, the petition tendering back such bequest with interest.</p> <p>4. Will — One Illegal Provision Does Not Invalidate the Entire Will. When one provision of a will falls for illegality the remainder is not thereby avoided when it appears that the illegal part has reference to a contingency so remote and improbable as to lead fairly to the conclusion that the testator did not deem it of controlling importance.</p> <p>5. Will — Action to Set Aside — Construction of Will Not an Issue. In an action to set aside a will for mental incapacity, undue influence and void and uncertain provisions, the answers being general denials in effect, this court will not on appeal grant the request of a party made here for the first time to construe the will.</p>