The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-07-09
No. 17.704.
Belle c. Holmes, ct al. Appellees,


The Campbell College. a corporation, ct
al, Appellants.
Appeal from Cowley County
REVERSED.
SYLLABUS By the Court. Mason. ].
l. The court has no power to reform "a
will so as to conform to the intentions OF
the testator shown by external evidence
to be different from those expressed In
the instrument
mistaken as to the extent of his estate
does not establish want of testamentary
capacity, the true test in this regard being
whether he is capable of comprehending
the quantity of his property and ITS
3. If portion of will may ever be
set aside for want of testamentary ca
pacity while the rest is upheld, It can
only be where the testator, being able TO
of disposing of his property in other re-
spects, is unable by reason OF some
specific delusion or mental defect to COM
prehend the effect of the provision In ques-
ton.
A. Evidence that testator who was
otherwise competent made college in
which he had previously shown no inter-
est, his residuary legatee, under the belief
that his estate was practically exhausted
residue amounted to more than two thirds
of the whole, is not sufficient to warrant
a finding of a want of capacity to make
All the Justices concurring.
Attest: D. A, VALENTINE.
IEeal1 Clerk Supreme Court.
No. 17,7O1.
F. L. Martin, and Florence L. Sawyer,
Appellants,
VS..
Galen s. Battey, Marjorie Battey White,
Charles Wheaton Battey, Walter sibley
Battey and Galen Bradford Battey, APP
Appeal from Jewell County.
AFFIRMED.
Syllabus. BY the Court. Johnston. c. J..
1. An action which had for it's purpose
/ fha fr1a lnfaEnEfa n
contending parties in several tracts OF
land and the partition Of the same among
them is local in character and must be
brought in the county in which the lan1
is located, and where a plaintiff brought
an action in county where one OF the
tracts is located and in which some OF the
defendants had an interest, and where he
undertook to bring into the action infants
who owned land in a county remote from
the one in which the action was brought
but had no interest in the land situated
in the latter county, there was no 1uris-
diction of the subject matter of the ac-
ton SO far as it affected the land of the
infant defendants and no consent OF
theirs could give jurisdiction to the court
of these issues or validity to the judg-
ment based thereon.
2. In such a case the court has no an
thority to appoint a guardian ad Item for
the infant defendants nor can a guardian
ad Item be appointed until service has
been obtained upon the infants and Juris-
diction over them acquired as the code
8. A wife domiciled in Illinois died
there owning lands in that state and in
Kansas. She left win giving her hus-
band a life estate in all of her property
after which it was to go to the other
heirs in designated proportions. The VIII
was probated in Illinois and an authenti-
Gated copy of it was admitted to record
and probate in this state In Illinois the
surviving husband determined to take IN
der the will and he entered into the pos
session of the property devised and ac-
cepted and enjoyed the provisions made
for him in the will, held, that he elected
to take under the will and having done
so in that state 1t is effectual in Kansas,
as he could not elect to take under the
will in Illinois and under the law in Kai,-
sas.
All the Justices concurring, except
Smith. J., who did not sit
Attest D. A. VALENTINE,
ISeaL1 Clerk Supreme Court