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issue to bring any papers into court. The court very properly remarked that if the attorney had desired the papers he could have had them. Besides this, the order did not mention any chattel mortgage; there is nothing to indicate that the Prouty note, apparently especially desired, could or should have been produced by the plaintiff; the defendant did not use the note which the plaintiff had in court; it does not appear that the defendant was without proper material for comparison

of handwriting; and the court, when instructing the jury to disregard improper remarks of defendant's attorney relating to nonproduction of the notes sued on, properly held they were not competent evidence for either side. It is plain that injecting the notes into the proceeding would have raised as many new forgery issues as there were instruments, and no complaint whatever is made of the ruling. The result is, the charge of abuse of judicial discretion is groundless.

The defendant fenced against admitting the genuineness of a signature which he said looked like his, then denied it, and finally declared he would not say whether the signature was his or not. In the course of the

examination the court called his attention sharply to the signature and to his answers, and it is said the court was guilty of misconduct and abuse of discretion. The subject is fully covered by the opinion in the case of State v. Keehn, 85 Kan. 765, 118 Pac. 851.

(105 Kan. 451)

DUDAS v. KANSAS CITY SOUTHERN
RY. CO. (No. 22136.)

(Supreme Court of Kansas. Nov. 8, 1919.)

(Syllabus by the Court.)

TRIAL 156(3)→
1. RAILROADS 350(3)
EVIDENCE OF DEFECTIVE CROSSING; QUES-
TION FOR JURY.

Under the rule that upon a demurrer to the evidence it is the duty of a court to accept as proved every fact supported by the plaintiff's evidence, and to indulge every favorable inference that may be deduced from it, and, where there are contradictions in his testimony, to give effect to that favorable to the plaintiff, it is held herein that the testimony tending to sustain plaintiff's recovery for injuries suffered at a railroad crossing by reason sufficient to require the submission of the case of the negligence of the railroad company was

to the jury.

2.

(Additional Syllabus by Editorial Staff.)
APPEAL AND ERROR 302(3) — Grounds

OF REVIEW; RULINGS ON EVIDENCE NOT PRO-
DUCED ON MOTION FOR NEW TRIAL.

while driving across a railroad crossing, due
Where plaintiff suffered personal injuries
to the defective condition thereof, exclusion of
testimony of repair and improvement of the
crossing shortly after the accident was not re-
viewable, when such evidence was not produced
at the hearing of the motion for new trial, in
view of Code Civ. Proc. § 307 (Gen. St. 1915, §
7209).

Appeal from District Court, Crawford County.

Action by Stephan Dudas against the Kansas City Southern Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Complaint is made because the court gave the jury an instruction on the subject of expert testimony, and it is said nonexpert testimony was unduly dignified by calling it expert testimony. The testimony of expert witnesses did form a part of the plaintiff's proof, and called for the instruction. Besides this, the complaint is quite frivolous, because the court told the jury the expert testimony was to be considered like any oth-lant. er, was to be tried by the same tests, and was to be given such weight and credit as the jury deemed it entitled to when considered in connection with all the other evidence in the case.

The court instructed the jury to find for the plaintiff if it were satisfied, from all the evidence, the defendant signed the note; and, if it were satisfied he did not sign it, to find for the defendant. It is said this instruction imposed the burden of proof on the defendant. This contention is frivolous if the instruction be considered by itself. In a separate instruction, relating to the single subject of burden of proof, the jury was told on whom the burden of proof rested.

An assignment of error relating to the disqualification of two jurors is without merit, and the judgment of the district court is affirmed.

All the Justices concurring.

Thomas W. Clark, of Pittsburg, for appel

Louis W. Johnson, of Pittsburg, and Hugh E. Martin, of Kansas City, for appellee.

JOHNSTON, C. J. Stephan Dudas and his family, who were riding in a buggy drawn by a horse along a highway and over defendant's railroad, met an automobile on the crossing, and he alleged that, when he turned to the right to let the automobile pass, defects in the crossing caused the horse to turn aside on the track and to move backward, which caused the buggy to tip over and roll down the embankment, seriously injuring the plaintiff and causing damage to the vehicle, for which he asked damages. After his testimony had been presented to the jury, the trial court sustained defendant's demurrer to his evidence, and gave judgment for defend. ant. Plaintiff appeals.

Was there evidence sufficient to take the case to the jury? is the only material ques

(185 P.)

tion presented on the appeal. The grounds alleged as negligence were that the defendant had failed to construct and maintain the crossing as the law requires, in that it was not 16 feet in width; was not of the same grade as the railroad track for ten feet on each side thereof, that the approaches exceeded a 72 per cent. grade, and that the material was not of the kind required by the statute. The statute in force when the injury was suffered made it the duty of the railroad company to make and keep in repair good and sufficient crossings, which should not be less than 16 feet in width and should be on the same grade with the crossing for 10 feet on each side of the center of the track, and that the approaches thereto should not exceed a 72 per cent. grade, and that they should be solidly constructed of suitable material, with no openings, except such as are necessary for the rails; and it was further provided that the material selected by the company for this purpose should be wood, gravel, crushed rock, concrete, burned clay, or slag, and of a permanent thickness equal to a height of the railroad rails. Gen. Stat. 1915, 8462. The statute has since been amended in several particulars, including the widening of the crossings and the extension of the same from the part which should be upon the same grade as the track, and reducing to some extent the grade of the approaches (Laws 1919, c. 242); but the duty of the railroad company towards the plaintiff, so far as this case is concerned, is to be measured by the provisions of the earlier statute.

up to the line of the rails, or, as required by statute, "equal to the height of the railroad rails." Plaintiff testified that when he met the automobile on the crossing he turned to the right, and when the right wheel of his buggy came in contact with the projecting rail, his horse was thrown back, and caused to back down the decline, cramping and overturning the buggy, and throwing plaintiff and his family about 8 feet down to the bottom of the fill.

[1] There were some contradictions in the testimony of the plaintiff as to his approach to and his actions at the crossing, of which much is made in the argument of defendant. The case, however, having been determined on a demurrer to plaintiff's evidence, the court could not weigh the testimony, or treat the evidence in his favor to have been neutralized by the contradictory evidence. As the case was submitted, it became the duty of the court to accept as proved every fact supported by any of the plaintiff's evidence, and to indulge in every favorable inference that might be deduced from it. It has been held that, where the evidence of a witness is conflicting, and one part is contradictory of another, it should be submitted to the jury. Smith v. Schriver, 91 Kan. 582, 138 Pac. 584. See, also, Neiderlander v. Starr, 50 Kan. 770, 33 Pac. 592; Acker v. Norman, 72 Kan. 586, 84 Pac. 531; Terry v. Gravel Co., 93 Kan. 125, 143 Pac. 485. There was abundant testimony as to the insufficient condition of the crossing and of the negligence of the defendant in maintaining it, and while the testimony is somewhat meager, and to some extent conflicting, as to his injuries having resulted from the negligence of the defendant, a careful reading of it satisfies us that it was sufficient to require the submission of the

There was testimony tending to show that the crossing was not 16 feet in width. Planks 16 feet long had been laid on the angle of the railroad, and not so as to conform to the line of the highway. The railroad ran from the northeast to the southwest, while the high-case to the jury. way ran north and south, and the crossing was therefore not 16 feet wide on the angle of the highway. There is testimony that the crossing at the intersection of the highway and railroad was only 12 feet wide, and on the approaches to it the elevation of the railroad at the crossing was about 10 feet and 5 inches. Instead of being level for 10 feet on each side of the center of the railroad track, there was a decline on either side of about 111⁄2 per cent., beginning immediately at the rails. The crossing, it appears, was not built

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[2] Complaint is also made of the exclusion of certain testimony offered to show the repair and improvement of the crossing shortly after the accident. It does not appear that the proposed testimony was produced at the hearing of the motion for a new trial, and hence those rulings are not reviewable here. Code Civ. Proc. § 307 (Gen. St. 1915, § 7209).

For the error in taking the case from the jury, the judgment is reversed, and the cause remanded for a new trial.

All the Justices concurring.

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EVIDENCE OF VALUE OF PROPERTY.
In an action for an accounting between

partners, it is held that testimony of the value of the partnership property at any time during the existence of the partnership was admissible.

(Additional Syllabus by Editorial Staff.) 2. APPEAL AND ERROR 846(6)-REVIEW IN

ABSENCE OF FINDINGS OF TRIAL COURT.

Because the trial court in an action for an accounting between partners made very few findings of fact, it does not therefore become Supreme Court's duty "to consider and review the testimony and to render such a judgment as will be just and equitable."

Appeal from District Court, Wyandotte, County.

Action by Samuel Segelbaum against M. Schanker and others. Findings for plaintiff, and on hearing of a motion for a new trial amount to which plaintiff entitled reduced, and judgment granted against defendants, and they appeal. Affirmed.

E. Q. Stillwell and Paul H. Ditzen, both of Kansas City, for appellants.

value of the stock between November and December, 1916, which was neither the time when the partnership was formed nor the time when it ended, it was incompetent, and that a new trial should be ordered. If the evidence were held incompetent, it seems inconceivable that its admission could have prejudiced the defendant, especially in a trial by the court. But it was competent and relevant so far as it tended to disclose the extent of the business and the value of the stock at the time the partnership terminated.

[2] Counsel is mistaken in his contention that, because the trial court made very few findings of fact, it becomes the duty of tnis court "to consider and review the testimony and to render such a judgment as will be just and equitable." The evidence was entirely oral, and there was sufficient to sustain the findings. It would unduly lengthen the opinion to attempt to cite the cases which declare that this court will not weigh conflicting evidence.

The judgment is affirmed.
All the Justices concurring.

(105 Kan. 495)

DREYER v. SCHRICK et al. (No. 22233.) (Supreme Court of Kansas. Nov. 8, 1919.) (Syllabus by the Court.)

Herrod & Roberts and S. E. Lee, all of 1. WILLS 192-EFFECT OF ADOPTION OF Kansas City, for appellee.

PORTER, J. The action was for an accounting between partners who conducted a small grocery business. The court's findings are, in brief, that the partnership was formed in March, 1916, and continued until April, 1917; that plaintiff put into the partnership $150, that the profits of the partnership amounted to $2 per day, and that plaintiff is entitled to $1 a day for 280 days and the money he put into the partnership, amounting in all to $430. On the hearing of a motion for a new trial the court reduced the amount to which the plaintiff was entitled to $350, and rendered judgment against the defendant for that sum, together with the costs. The defendant brings the case here for review.

[1] The first complaint is of the admission of testimony which it is said was incompetent and irrelevant. One of the controversies at the trial was over the value of the stock of goods, which it was shown varied at different times. Salesmen from wholesale houses and other witnesses familiar with the stock of merchandise in controversy gave their opinion as to its value at the times when they saw it. It is insisted that, because the testimony had reference to the

CHILD.

Adoption of a child by a testator revokes his previously executed will to the same extent as birth of a child.

2. ADOPTION 21-EFFECT ON INHERITANCE

OF SECOND ADOPTION.

A child by adoption, who is adopted the second time, inherits from his first foster par

ent.

Appeal from District Court, Shawnee County.

Action to quiet title by J. H. Dreyer against Gladys Schrick (formerly Gladys Moore), a minor, and James A. McClure, as administrator, etc. Judgment for plaintiff and the administrator, and the defendant Gladys Schrick appeals. Reversed and remanded, with directions to render judgment for appellant.

H. T. Phinney, of Oskaloosa, and Oscar Raines, of Topeka, for appellant. D. H. Branaman, Lee Monroe, and Cyrus Monroe, all of Topeka, for appellees.

BURCH, J. The action was commenced as one to quiet title to real estate derived through the will of Theresa Beyer, deceased. The issues were broadened to include conflicting claims to personal estate left by

(185 P.)

Joseph Beyer, her husband, whose death occurred subsequently to that of his wife. The defendant Gladys Schrick asserted an interest in all the property involved, by virtue of her adoption by the Beyers. The

absence of other arrangements by will, descend in equal shares to his children surviving him. and the living issue, if any, of prior deceased children; but such issue shall collectively inherit only that share to which their parent would have been entitled had he been living." Gen. Stat. 1915, § 3841.

adoption occurred after the execution of
Theresa Beyer's will, in which the defendant
was not provided for. After adoption by the
Beyers, and while they were living, the de-
fendant, who is still a minor, was legally
and formally adopted by Charles and Maryly
Schrick, her present foster parents.

[1] The question presented is one of statutory interpretation. The statute relating to adoption of minor children contains the following sections:

"Any person may appear in the probate court of the county of his or her residence and offer to adopt any minor child or children as his or her own. Thereupon the court shall investigate the matter, and shall require that the minor appear or be brought before the court, and shall require that such of the minor's parents as are living in the state, and the guardian (if any), appear also in court, *and if the probate court shall find that the minor and the living parents of such minor and the guardian (if any) consent freely and voluntarily to such adoption, the said court shall record its proceedings in the journal, declaring each such minor child to be the child and heir of such person so adopting such minor; and then and thereafter such person so adopting such minor shall be entitled to exercise any and all the rights of a parent, and be subject to all the liabilities of that relation.

"Minor children adopted as aforesaid shall assume the surname of the person by whom they are adopted, and shall be entitled to the same rights of person and property as children or heirs at law of the person thus adopting them." Gen. Stat. 1915, §§ 6362, 6363.

With respect to the claim of the adopted child to a share of the property derived by will, the argument on one side may be briefsummarized as follows: The statute of wills covers the subject of the revocation of wills. The section quoted treats of the subsequent appearance of prospective heirs not provided for in a will, and makes revocation a consequence of the appearance of children, and of children of two classes only-those absent and reported dead, and those born. Gladys was not in fact the child of the Beyers, whatever her legal relation to them may have been. The relation was created by statute and judgment of the probate court. She was not born to them, and consequently she cannot qualify under the provision in favor of after-born children. To permit her to do so would require an amendment of the statute, which the Legislature has not seen fit to make. This icily logical argument, based on the letter of the law, which killeth, is supported by judicial decisions from several states. Russell v. Russell, 84 Ala. 48, 3 South. 900; Davis v. Fogle et al., 124 Ind. 41, 23 N. E. 860, 7 L. R. A. 485; In re Gregory's Estate, 15 Misc. Rep. 407, 37 N. Y. Supp. 925; Goldstein v. Hammell, 236 Pa. 305, 84 Atl. 772; Evans v. Evans (Tex. Civ. App.) 186 S. W. 815.

Statutory peculiarities may account, in part, for some of these decisions. In Alabama a man may make a child capable of

The statute of wills contains the follow- inheriting from him by executing and acing section:

"When a testator at the time of executing his will shall have a child absent and reported to be dead, or having a child at the time of executing the will shall afterwards have a child who is not provided for in the will, the absent child or the child born after the execution of the will shall take the same share of the estate, both real and personal, that it would have been entitled to if the testator had died intestate, toward raising which portion the devisees and legatees shall equally contribute in proportion to the value of what they shall respectively receive under the will, unless in consequence of a specific devise or bequest, or of some other provision in the will, a different apportionment among the devisees and legatees shall be found necessary, in order to give effect to the intention of the testator as to that part of estate which shall pass by the will." Gen. Stat. 1915, § 11795.

The statute of descents and distributions contains the following section:

"Subject to the rights and charges hereinbefore contemplated, the remaining estate of which the decedent died seized shall, in the

knowledging a declaration to that effect and filing it with the probate court. The statute seems to recognize a clear difference between the status or relation of parent and child and the right of inheritance, and does not, considered alone, attach to adoption all the legal incidents and consequences of the natural relation. In the case cited from that state the court said:

"The word 'inheriting' is twice employed in our statute, and, it would seem, was placed there ex industria. The Legislature did not deem it necessary to make any provision in case a will was made; for, in such case, the testator usually directs in what manner his property shall go after his death. A will, unless it contravenes some provision of positive law, or some principle of public policy, is the law of the succession." Russell v. Russell, 84 Ala. 48, 51, 3 South. 900, 901.

In Indiana the statute of wills made provision for after-born legitimate issue. It contained the further provision that no will should be revoked, except as provided for in the act, unless the testator should destroy

or mutilate the will with intent to revoke [ring to the relationship, which do not clearly or make a new will. In the case cited from that state the court said:

"It is held in Runkle v. Gates, 11 Ind. 95, that to revoke a will the requirements of the statute must be strictly pursued. It is manifestly true no act, thing, or deed will revoke | a will once duly executed, unless it comes within the provisions of the statute providing for the revocation of wills. To hold that the adoption of a child revokes the will, it is necessary to interpolate into section 2560, after the words 'legitimate issue,' the words 'or shall adopt a child,' or words to the same effect, for the words of the statute are plain and explicit. They are: 'If after the making of the will the testator shall have born to him legitimate issue.' It would be legislation, and enacting a statute to so construe it." Davis v. Fogle et al., 124 Ind. 41, 45, 23 N. E. 860, 861 (7 L. R. A. 485).

In Pennsylvania after-born children were provided for by an act of the year 1833 (act April 8, 1833 [P. L. 251]). At that time there was no adoption statute, and adoption was unknown to the common law. The court held that the rights of a child and heir conferred on an adopted child by the later adoption statute did not have the effect to put such a child in all respects in the relation of a child in fact.

In Texas a "legal heir" may be "adopted" by a method similar to that recognized in Alabama. If, however, at the time of such adoption, or afterward, the adopting person have a child begotten in lawful wedlock, the adopted heir can take no more than onefourth of the estate. In the case cited the

court said:

"An adopted heir, upon the death of the adopting party, becomes entitled, if living, to an interest in all the property of which he may die intestate. J. W. Evans having left a will at the time of his death, he did not

* *

die intestate, unless his act of adopting Jack Evans, under the statute, subsequent to the execution of the will, had the effect to revoke it. These statutes provide that an 'after-born' child shall have the effect to revoke the previously executed will, and in no way suggest that the adoption of a child or heir after the execution of a will shall have the effect to revoke it." Evans v. Evans (Tex. Civ. App.) 186 S. W. 815, 816.

The New York decision was rendered by the Surrogate's Court of Otsego county.

In this state adoption carries with it every feature of the domestic relation of parent and child except natural parentage. Capacity to inherit follows as an incident, but not as the sole end. Nurture is an end, ordinarily of more importance than property, and the journal of the probate court must declare the minor to be "the child" of the person adopting it, as well as heir. The reciprocal rights, duties, privileges, responsibilities, and liabilities created are those of

exclude adopted children, must be interpreted as including them on equal footing with natural children. When the court had under consideration the section of the statute of descents and distributions quoted above (Gen. Stat. 1915, § 3841), it held that the expression "living issue" meant living children, and included an adopted child (Riley v. Day, 88 Kan. 503, 129 Pac. 524, 44 L. R. A. [N. S.] 296). In that case the court declined to follow the decisions of other courts excluding adopted children from the advantages of beneficial statutes by giving a strict and literal meaning to words, and adhered to the method of interpretation which had been approved in the case of Boaz v. Swinney, 79 Kan. 332, 334, 99 Pac. 621:

"While the law of adoption is of comparatively recent origin, it is founded upon a wise and beneficent purpose, which should be sustained and promoted by giving the law a liberal construction."

The legal status of the defendant, after her adoption by the Beyers, being the same as if she were their child in blood and by birth, the effect of her adoption on her foster mother's will previously executed may now be considered.

Unlike the Indiana statute, the statute of wills of this state does not, in terms, limit the methods by which a will may be revoked. It merely enumerates certain things which accomplish that result in whole or in part. This fact, however, is not deemned of importance, since the enumeration may be regarded as exhausting the methods which the Legislature recognized. Furthermore, it is not deemed important whether or not the effect on a will of the circumstances referred to in the section of the statute quoted above (Gen. Stat. 1915, § 11795) constitute revocation in the strict sense. convenient term, fairly descriptive of what occurs. The question is whether or not subsequent adoption of a child is the legal equivalent of subsequent birth of a child.

Revocation is a

An examination of the statute of wills reveals no disposition on the part of the Legislature to make an intentional discrimination against adopted children. On the other hand, it is quite clear that what the Legislature had in mind was the coming into consideration of a new heir, who was not regarded in making the will, whereby the testator's condition and circumstances were so changed that, presumptively, he would not desire the will to stand. This fact, the fact that the testator becomes parent of a child capable of inheriting a share of his estate, but who was not in existence and was not provided for when the will was made, fully accounts for the legislation. The uncontemplated springing into existence of the relation of

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