Hoyt v. Little

OPINION ON REHEARING

The opinion of the court was delivered by

This is a rehearing. The facts and questions of law are stated in our original opinion-in 158 Kan. 734, 150 P. 2d 336.

The case was a simple one and our decision was controlled by the single precedent of Lanning v. Gay, 70 Kan. 353, 78 Pac. 810, although other authorities were cited in our opinion. Because of the importance of the principal legal question — the qualification of a husband to serve as a witness to a will in which a substantial devise and bequest were made to his wife — a rehearing was granted, and the case has been rebriefed and reargued.

*233Although our own reports have no other decision than Lanning v. Gay directly in point — and some of the justices, including the writer, would not approve the rule of that case if we were now meeting the legal question involved for the first time — yet the rule of that case has stood as the law of this state unchallenged for forty years; and because the rule is not merely “one in a wilderness of single instances,” but is supported by respectable authority in other jurisdictions, it is eminently one for the legislature to change if it should be changed, and not one to be overruled at this late day by order of court. Therefore the court adheres to its original decision.