The Topeka state journal., 1908-04-15
LEGAL.

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LEGAL.
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State state, to, impeach such decree on the
sround that at the time the action was
commenced and the decree entered neith-
er party resided in that state but both
were residents of this state
The plaintiff and her husband re-
| siueo IN Kansas The husband went to
south Dakota for the purpose of obtain
| Inere Tor that purpose; plaintiff was noti-
ned and filed an answer and cross-peti-
tion IN which she prayed for a divorce.
aimony, and the exclusive custody and
| control of their daughter, then eight years
OF age: She obtained decree as prayed
Tor. Seven years afterwards, she COM
| IN kansas, for alternating the affections
OF her husband. In her petition she al
leged her marriage and also the decree
! OF divorce, but averred that the Dakota
| court was without Jurisdiction for the
want of the required residence of the
parties In that state. The defendant an
ana averring its regularity and legality.
Plaintiff by reply, submitted the judg-
ment but denied its validity for the rea-
gave judgment for the defendant upon
| the pleadings. Held not error.
| All the Justices concurring.
Attest: d. A. VALENTINE,
! lSeaLJ Clerk Supreme Court.
| No. 1913.
H. T. Scott
| VS..
F. G. Thrail ct al
Error from Greenwood County.
AFFIRMED.
Syllabus. By the Court. Benson j.
| l. In an action to contest a will the
probate thereof is prima facie evidence
Of the due attestation, execution and va
| lidity of the will.
| 2. In such an action the burden of
| proof to explain an erasure in a will is
not upon the defendant in the first in
come the evidence afforded by such pro-
| bate and to show it's invalidity by a pre-
| ponderance of all the evidence.
8. Whether an eraSure appearing upon
will duly admitted to probate, was
| made before after execution, is
question of fact to be determined by the
| the evidence, including the probate. aided
by all reasonable presumption3 and infer
ences.
4. It is not error to refuse to permit an
expert in handwriting to testify, from an
examination of a will and an erasure
| therein, that person who wrote. with a
nervous hand was unable to make such
an eraSure, although the witness might
properly testify that the hand of the per-
son who wrote the will was nervous and
All the Justices concurring
| Attest: D. A. VALENTINE,
[Seal.] Clerk Supreme Court.
No. 15,47s
Jacob Bickel ct al
VS..
Anna Oliver.
Error from Washington County.
AFFIRMED.
Syllabus. By the Court. Johnston, c. J.
l. Where a man and his wife, who have
Grafton of a young girl becoming a mem
Der of their family and giving to them
love, obedience and service they ,,,s would I'D
and there is full and faithful performance
ment viii be enforced by a court of equi-
| ty, providing there are no circumstances
or conditions which would render enforce
2. Before an oral agreement will oper-
ate as a transfer OF land it must appear
that it is certain and definite in subject
matter and purpose and has been proven
| by clear and satisfactory proof but is not
essential that it be established by direct
evidence.
8. If the facts and circumstances
| brought out in the evidence. including the
acts of the parties, are such as to raise
| was actually made and to satisfy the
court of its terms and performance ana
that there YOU'D ~ Re n9 ineauty In Its
4. The fact that more than one ground
| of recovery may have been pleaded in the
petition or that the grounds set up for re.
with each other affords no reason for sus-
tanning demurrer which challenges only
the sufficiency of the facts alleged.
All the Justices concurring.
Attest: d. A. VALENTINE.
ISeaL1 Clerk Supreme Court.
No. Is, 49,
Mary Garden
VS..
Frederick Mais and Agnes Mais
Error from Ellis County.
REVERSED.
Syllabus. By the Court. Burch, ].
In an action of ejectment brought
against the claimant under an admins
traitors deed by the heir of the deceased
owner Of the land the entire record Of the
proceedings in the probate court was in
troduced in evidence. 1t disclosed no Or
der recurring notice of the time and place
Of Of hearing caring the petition petit to sell and fixing
| which notice should be given. A copy of
| printed notice appeared in the files. The
sale made, and ordered the deed to be ex-
ecuted. Sec. 1888 Gen. Stats. 1901 provides
| that an administrator deed shall be pre-
sumptive evidence that the administrator
observed the directions and complied with
the reQuisitions of the law.
Held, the record is conclusive evidence
| that no order respecting notice was made;
the unauthorized notice was nulHty; the
subsequent acts of the court did not cure
proceeding; the statute cited does no
more than dispense with the production
of the record in the first instance, and the
deed is void.
All the Justices concurring.
true copy.
Attest: D. A. VALENTINE,
ISeaLJ Clerk Supreme Court.
| No. 15, 481.
Ralph F. Chute, a Minor,
VS..
Charles P. Moeser and William Moeser.
Error from Shawnee County.
AFFIRMED
Syllabus. By the Court. Mason, j.
/. In an action brought by one who
| while passing in front of building was