fraud or undue influence. Ginter v. Ginter, [ seems not to have been in his handwriting. 79 Kan. 721, 101 Pac. 634, 22 L. R. A. (N. S.) Nothing in the letter was pertinent to the 1024; 40 Cyc. 1154. It is not uncommon for case except a statement that he had purchas-. testators to give to one child in preference to ed the Gray county land which he said was another, or to disinherit entirely members of to be for his two youngest sons, and these their own families, and many go so far even facts were brought out in the testimony and as to bestow their bounties on strangers who received without objection. have no claim upon them to the exclusion of relatives. As the property was owned by the testator he could make such disposition of it as he pleased, and if he had testamentary capacity and no undue influence was exercised upon him no one can question his choice of beneficiaries, nor can any court set aside the will which he chose to make in conformity to the statutory requirements.

It is said that his wife and those to whom his property was given were close to him during his illness, while his own children were not brought in until shortly before his death. It is true that the beneficiaries of his will had an opportunity to exercise an influence over him. His wife especially had an opportunity as well as a motive to influence his mind as to the disposition to be made of his property, but as said in Ginter v. Ginter, supra:

The exclusion of the letter furnishes no ground for a reversal of the judgment. It will be affirmed. All the Justices concurring.

(98 Kan. 773) AHNERT v. AHNERT. (No. 20381.) (Supreme Court of Kansas. Oct. 7, 1916.) (Syllabus by the Court.)

143.] 72

[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 453-455, 465-468; Dec. Dig. 2. EXECUTORS AND ADMINISTRATORS "The authorities are unanimous that power, TITLE TO PROPERTY-ESTOPPEL. motive, and opportunity to exercise undue inThe probate court, acting under the impresfluence do not suffice to authorize the infer- sion that the wheat belonged to the widow, dience that such influence has in fact been wield-rected the executor to correct his inventory aced." Page 741 of 79 Kan, page 642 of 101 Pac. [22 L. R. A. (N. S.) 1024].

It was also determined in that case that while unequal and unnatural provisions in a will may be considered in determining whether the will was the free act of the testator, they do not of themselves shift the burden of proof which rests upon those who assert that undue influence was exercised. While the wife on the day before his death twice mentioned the fact that a will had not been made by the testator, it is not shown that she took any part in the making of the will, nor that she attempted to influence or control the disposition of the property. Objection was made to the exclusion of remarks made at one time by the testator to the effect that he wanted his boys to go out to Gray county and farm his land. It appears, however, that the testimony was subsequently received as it went to show his relations with his sons. The testimony had little to do with his state of mind when the will was made. Besides there was consid

erable testimony of statements made by him not only that he wanted the boys to go out

and farm the land, but also of a purpose to give the land to them. Evidently there was a change of purpose in this respect as he made a different disposition of the land. A letter, said to have been written by the testator to his brother about two years before his death, was offered in evidence, which, upon objection, was excluded. It appeared to be incomplete, part of it written with a pen, part with a lead pencil, and a part of it

cordingly. Held, the executor was not estopped from claiming the wheat as assets of the estate by participating in the probate court proceeding. [Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 321; Dec. Dig. 72.]

Appeal from District Court, Stafford County.

Action by Ernestine Ahnert against Albert Ahnert. From a judgment for defendant, plaintiff appeals. Affirmed.

Paul R. Nagle, of St. John, for appellant. F. L. Martin and Van M. Martin, both of Hutchinson, for appellee.

BURCH, J. The action was one by a widow against the executor of her husband's estate for the value of a quantity of wheat claimed by the executor as assets of the estate. The plaintiff was defeated, and appeals.

The plaintiff and William Ahnert were married in 1908. An antenuptial agreement provided that each should continue to own owned a tract of land which he afterwards and control his own property. The husband conveyed, the plaintiff joining him, by a deed containing the following reservation:

"The parties of the first part hereby expressly reserve to themselves and their assigns the full benefit and use of the above-described premises and the rents, issues, and profits thereof, death of either of the first parties the survivor for and during their natural life, and on the shall have the benefit, use, rents and profits for and during his or her natural life."

In the fall of 1913 the land was sown to wheat. In 1914 the crop was harvested,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

The judgment of the district court is af-storage was ground up, and afterwards a firmed. All the Justices concurring.

Appeal from District Court, Harper County. Emory A. Wales was convicted of embez-pared by the company's counsel, which was, zlement, and appeals. Reversed and remanded.

whenever all the creditors who signed the agreement should agree to release the company in full for their pro rata share of that sum; further, that as the exact amount of indebtedness was unknown, it was agreed that $9,200 was to be disbursed immediately upon the execution of the contract by the known creditors, and the balance held for six months, and then disbursed. This instrument was signed by numerous persons, including the prosecuting witness, and bore date of February 12, 1915; the embezzlement being charged as committed on or about February 8, 1915. This was offered in evidence, and an objection thereto was sustained and of this the defendant complains. It was also offered to show that about the latter part of January, 1915, the company entered into negotiations with Mr. J. C. Elvin relative to making an assigument of the mill property to him on condition that he pay for all the wheat which had been delivered to

on the dates appearing thereon and upon demand of the holders, was likewise refused.

The crime with which the defendant was charged being one involving moral turpitude and wrongful intent, and there being a square conflict between the prosecuting witness and the defendant as to the nature of the storage transaction, all of these matters should have been received in evidence in order that the jury might have fully understood the entire situation.

The judgment is reversed, and the cause remanded for further proceedings in accordance herewith. All the Justices concurring.

(98 Kan. 720)

EDWARDS v. AMERICAN LAND & CAT.
TLE CO. et al. (No. 20173.)

(Supreme Court of Kansas. Oct. 7, 1916.)

(Syllabus by the Court.)

LANDLORD AND TENANT 318(1)-POSSES

SION OF PREMISES-ACTIONS-ADMISSIBILITY
OF EVIDENCE.

In an action for damages alleged to have been sustained by the plaintiff by being dispossessed by the defendant of land alleged to have been leased by the plaintiff from the defendant through its agents, it is proper to introduce in evidence written leases for the land to another person, for the same time, and to show that the other person leased the land to the plaintiff, where the answer alleges that the defendant did not lease the land to the plaintiff nor authorize any one to do so.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 1345, 1347; Dec. Dig. 318(1).]

2.

LANDLORD AND TENANT 94(2)
FOR YEARS TERMINATION-NOTICE.

To terminate the rights of a sublessee of land, it is not necessary to give him notice to quit, where the lessor of the sublessee holds from the landowner under a written lease which fixes the time for the termination of the tenancy.

the milling company by farmers to be paid 1.
for at a future date, including that of Mr.
Mentze, and all other claims against the
milling corporation. This offer was rejected.
The theory on which this evidence was of
fered was that the prosecuting witness by
signing the contract recognized Wales as his
creditor rather than his warehouseman; that
instead of harboring a design to commit the
crime of embezzlement Wales was honestly
endeavoring to arrange for the protection of
the prosecuting witness and payment to him
for the wheat. The transactions with two
other farmers, one at about the same time,
and the other after the company had been
incorporated, were permitted to be shown by
the state under the familiar rule that evi-
dence of similar transactions is competent on
the question of intent. The entire history of
the mill venture by the defendant indicates
a series of attempts to put it in the attitude
of a going concern, and we think under all
the circumstances the defendant had a right
to the benefit of the evidence now under con-
sideration both for the purpose of giving the
jury all the facts concerning the claimed
relations of bailee and purchaser, and for
the purpose of showing the intent which ac-
tuated the defendant. While the defendant
was permitted to state at some length what
Exhibit 1 was, the document itself was not
received in evidence, and hence all the jury
had was his somewhat partial description of
it. The defendant's offer to show that the
company was, by its president, thrown into
bankruptcy while he was absent in Okla-
homa City, was rejected; neither was he
permitted to show that he received nothing
in return for the $18,000 or $19,000 which
he put into the property. His offer to show
that he paid a great number of depositors
at the mill who had received the same sort
of certificate as that given the prosecuting
witness, and that they were paid in cash

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 317; Dec. Dig. 94(2).] 3. LANDLORD AND TENANT 318(1) PosINSTRUCSESSION OF PROPERTY - ACTIONS TIONS.

-

The instructions given have been examined, and are found to have correctly stated the position of the defendants.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 1345, 1347; Dec. Dig. —— 318(1).j

Appeal from District Court, Clark County. Action by John A. Edwards against the American Land & Cattle Company and another. From a judgment for defendants, plaintiff appeals. Affirmed.

W. W. Harvey, of Ashland, for appellant. F. C. Price, of Ashland, for appellees.

MARSHALL, J. The plaintiff sought to recover judgment for damages for the dispossession of the land on which he was pasturing and watering cattle. Judgment was rendered in favor of the defendants. The plaintiff appeals.

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The American Land & Cattle Company | plaintiff's, rights under the leases, together owned a large tract of land in Clark county. with the rights of the defendant cattle comFrom some time in 1905 until in July, 1913, pany. the plaintiff pastured and used about 1,600 [2] 2. No notice that the plaintiff's right acres of this land, lying along Snake creek. to the use of the land would be terminated The plaintiff owned other large tracts of land was given to the plaintiff by the cattle comcontiguous to, and fenced with, that of the pany, or by any one for it. For this reason cattle company. The plaintiff paid $200 a the plaintiff contends that he was wrongyear for the use of the land owned by the fully deprived of the use of the land and of cattle company. This rent was paid to dif- the water on it. This question is presented ferent parties. The plaintiff's leases were in different ways. The plaintiff asked inoral, and were for a year at a time. There structions that notice was necessary before was a conflict in the evidence concerning the his rights could be terminated. These inparties from whom the plaintiff leased the structions were refused. The court instructland. The plaintiff's evidence tended to showed the jury, in substance, that if Edwards that he rented the land from agents of the was a subtenant under J. P. Campbell, and cattle company, while the defendants' evi- that if J. P. Campbell was a lessee under the dence tended to show that the plaintiff rent- written leases offered in evidence, no notice ed the land from the company's tenants. to the plaintiff was necessary in order to terThese tenants had written leases which pro- minate his right to the use and possession vided for the surrender of possession of the of the land in controversy. Campbell's leasland on the 30th day of April of each year. es provided for the termination of his interJ. P. Campbell had this and other land of est on April 30, 1913. To terminate his right the cattle company leased annually from May to use the land for any period of time after 1, 1911, to April 30, 1913. For the year May April 30, 1913, it was not necessary to give 1, 1913, to April 30, 1914, Campbell had the him notice. If it was not necessary to give other land leased, but for that year his Campbell notice, it was not necessary to give leases omitted the lands in controversy. In the plaintiff notice in order to deprive him July, 1913, the cattle company fenced its land of his right, if any he had, to the use of the along Snake creek, drove the plaintiff's cat- land. Section 4698 of the General Statutes tle off, and ordered the plaintiff to keep off of 1909 governs this question and is as folthe land and to keep his cattle out. The lows: plaintiff was pasturing a large number of cattle on the land owned by himself and that owned by the cattle company. These cattle obtained water at Snake creek, on the land of the cattle company. The plaintiff did not have a supply of water on his land sufficient for his cattle. On account of being deprived of water, his cattle were greatly damaged. To recover damage he brought this action. The case was tried to a jury, and a general verdict was returned in favor of the de

fendants.

"Where the time for the termination of a tenancy is specified in the contract, or where a tenant at will commits waste, or in the case of a relation of landlord and tenant does not exist, tenant by sufferance, and in any case where the no notice to quit shall be necessary."

The instructions requested by the plaintiff ignored the defendants' evidence, tending to show that the plaintiff was the tenant of J. P. Campbell, and for that reason were properly refused. They withdrew from the jury the power to determine between the evidence of the plaintiff and that of the defendants as to the source of the plaintiff's right to use the land. If the jury believed that the plaintiff's contention concerning the leasing of the land was the correct one, the plaintiff's rights were fully protected by the instructions given.

[1] 1. One of the plaintiff's complaints is that the court erred in admitting in evidence leases from the defendant cattle company to J. P. Campbell for the years 1911, 1912, and 1913. In their answer the defendants denied that they had, at any time, leased to the plaintiff any of the land belonging to the cat[3] 3. The plaintiff contends that the intle company, and denied authorizing any per-structions of the court did not correctly state son to do so. Under these allegations it the position of the defendants. The part of was proper for the cattle company to prove the instructions toward which this contenthat it had leased the land in controversy tion is directed was as follows: to J. P. Campbell, and then to prove that J. P. Campbell had leased the land to the plaintiff. This evidence contradicted that of the plaintiff, which tended to show that the plaintiff leased the land directly from the cattle company through its agents. If the plaintiff rented this land from J. P. Campbell, his leases were properly introduced in evidence to show his, and necessarily the

"The defendants claim that the lands were leased to J. P. Campbell under written leases which specify the date of expiration. Further, that plaintiff, Edwards, was a subtenant under Campbell, under a verbal lease."

This was a correct statement of the position of the defendants.

The judgment is affirmed. All the Justices concurring. .

construction so that the total amount to be colDE SOTO STATE BANK v. RANDALL et al. lected by taxation is reduced to $200,000.

Action by William Schaake and others against Gus H. Brune and others, as the Board of County Commissioners of the County of Douglas, and another. From a judg[Ed. Note. For other cases, see Mechanics' ment for defendants, plaintiffs appeal. AfLiens, Cent. Dig. § 87; Dec. Dig. 73(1).] firmed.

Action by the De Soto State Bank against J. S. Amick, of Lawrence, and C. F. W. DasJohn W. Randall and others. From a judg-sler, of Leavenworth, for appellees. ment for plaintiff, defendants Frank Hodges and others appeal. Affirmed.

S. D. Scott, of Olathe, for appellants. J. join the defendants from building a bridge W. Parker, of Olathe, for appellee.

2. BRIDGES 11-CONSTRUCTION-AUTHOR- proper for the board of county commissionITY OF COUNTY COMMISSIONERS.

ers of Douglas county to take into consideration the needs of the people of that county and of the city of Lawrence, and to build a bridge that will accommodate all kinds of

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