The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1910-04-12
No. 16, AT,
Cora Kirby Sellards, Appellee,

NOTd hlTDy App0l166,
Mary H Kirby. Guardian. Appellant,
Appeal from Usage County.
AFFIRMED.
Syllabus. BY the Court. Mason. j.
e. !; The statute Gen. Stat. 1909. Sec.
a witness to a will which cannot be
proved without his testimony, applies only
to attesting witnesses, not to other per-
2. Where a will offered for probate con-
s1StS of several separate sheets not per-
manently fastened together, only the last
one bearing the signature of the tesla
ter may be sufficient to establish prima
facie the identity of the other sheets.
the 5 Of the test is " Wo Iy
named as the executrix, but is not other
wise favored over the other children,
does not raise presumption of undue
influence.
4. The fact that will is written by a
benefits equally with the other children.
does not make a case for the application
Sec s that W wrie1 by s the
principal beneficiary, who was the con-
fidential agent or legal adviser of the
sition of confidence or trust to him, shall
not be held valid unless it shall be af
the contents and had independent advice
with reference thereto.
5. No error appears in the admission
to probate of a will, where there was
evidence that the testator had duly signed
It In ink, below the attestation clause, in
the presence of the subscribing witnesses,
and a few weeks later had delivered it
to the testatrix, who retained possession
OF 1t until his death, although when it
was produced in court the teStator'S sig
nature had been partially erased by knife
scratches, and his name had been writ
apparently by himself, and no further
showing was made as to when, by whom,
or with what purposes the changes had
Ali the Justices concurring.
Attest: D. A. VALENTINE,
LSeal.1 Clerk Supreme Court.
No. 1898.
o. B. Trower and Lille A. Trower. APP
pellees.
T. H. Beekman, Appellant.
Appealed from Wyandotte County Court
OF G4m T1nsI PIE Pleas.
Syllabus. By the Court. Graves, j.
In an action to foreclose a first mort
gage upon real estate, the mortgagorl
and the holder of junior lien were made
parties defendant The owner of the real
estate filed as his answer to the petition
a general denial unverified. Neither the
petition nor the answer stated facts which
in any manner challenged or affected the
not plead in the action but made default
Afterward, the court permitted the own
his answer by alleging that their code
Iendant held a warranty deed of the
property but 1t was merely intended as
a mortgage and the debt which it Sc
cured had been fully paid and discharged;
and they, prayed the court to -adjudge
such deed to be mortgage and cancel
amended answer was filed. Judgment as
prayed for was taken in the absence and
without the knowledge of the holder of
such deed. At the time the amended an
swer was filed and the Judgment taken,
the defendant filing such answer well
knew that the debt secured by the deed
had not been paid. The holder of the
deed then filed a petition stating fully
the facts and asked for a new trial x
demurrer to the petition was sustained.
Held error.
All the Justices concurring.
A true copy.
Attest: D. A VALENTINE.
LSeaL1 Clerk Supreme Court.