Lyons v. Berlau

Citations

• 67 Kan. 426
• 73 P. 52
• 1903 Kan. LEXIS 270

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Wills — Parties to Contest — Limitation of Action. In an ac- . tion to contest a will, one of the devisees who was friendly to the contestor, and who afterward joined in the suit to have the will annulled, was not made a party until after two years from the time the will was probated. Held, that the bringing in of such party was permissible, and that the prosecution of the action thereafter1 was not affected by the statute of limitations. (Tlualdebridge v. Pailway Co., 66 Kan. 443, 71 Pac. 814.)</p> <p>2. Practice, District Court— Misjoinder of Causes. Where misjoinder of causes of action appears on the face of the petition,, the question of misjoinder must be raised by demurrer and cannot'be taken advantage of by answer.</p> <p>3. -Incompetent Testimony Stricken Out. Where incompetent testimony was admitted, and the court, upon application of the party in whose interest it was offered, excluded it and struck it out, the opposite party has no ground for complaint.</p> <p>4. - Testimony Competent to Sustain Either Cause. If testimony is competent to sustain either one of two causes of action contained in the petition it should be admitted.</p> <p>5. Trusts and Trustees — Operation of Law. A trust in lands created under the conditions mentioned in section 7880, General Statutes of 1901, arises by operation of law, and the agreement to create it need not be in writing. It may be inferred from circumstances.</p>