Rice v. Monroe

Citations

• 108 Kan. 526
• 196 P. 756
• 1921 Kan. LEXIS 213

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>Will — Contest—Attestation—Prima Facie Proof of Attestation — Evidence of Attesting Witnesses. The attestation clause of a will recited that the testatrix, in the presence of the subscribing witnesses, signed the instrument and declared it to be her last will and testament, and that the subscribing witnesses, at her request and in her presence and in the presence of each other, signed their names thereto as subscribing witnesses. The will was probated on signed statements of the subscribing witnesses, sworn to before the probate judge, establishing the facts recited in the attestation clause. On the trial of an action to contest the will, the subscribing witnesses testified that the testatrix was not present when they placed their signatures on the will, and otherwise negatived the statements of the attestation clause. The statute of wills provides that on the trial of an action to contest a probated will, the order of probate shall be prima facie evidence of due execution and attestation. Held:</p> <p>1. The question raised by the testimony was one of fact.</p> <p>2. The court was not obliged to believe the witnesses, and it was not arbitrary conduct on the part of the court to uphold the will against their testimony.</p> <p>3. The testimony not being sufficiently convincing to warrant an inference that the will was not properly executed and attested, the court was authorized to return affirmative findings of due execution and attestation, based on the prima facie evidence supplied by the order of probate.</p>