(dissenting):
I have not been persuaded by the prevailing opinion in this case. It overlooks elements in the case which are undoubtedly established by most credible testimony which as a starting point furnish the foundation for the giving of credence to the defendants’ theory of this whole transaction. Mr. Justice Van Kirk likewise brushes aside all of the testimony of Perry Willett, whereas it seems to me that testimony should be carefully considered because it clouds the whole of the plaintiff’s case and discredits it utterly. The majority of the court have reached a conclusion which is absolutely contradictory to the theory of Perry Willett when he brought the action. They have decided the case upon a theory foreign to that expressed in the complaint and to that upon which the plaintiff tried the case throughout. Because a recovery is now being allowed in violation of the rule of secundum allegata et probata, I fully concur in the opinion written by Cochrane, P. J. Moreover, I wish to express my dissent upon the facts.
Perry Willett’s testimony taken upon open commission tells a story which is not incoherent or inconsistent with itself but which is consistently false and in many material details as shown by the testimony of disinterested witnesses, like Dr. Ingraham, Thomas O’Brien, Forest Kenyon and others.
In view of this wholly incredible testimony on the part of Perry Willett and the disinterested testimony as to just what took place at the time of the transaction and as to the apparent satisfaction that he expressed during his two months’ stay there with the kind of home that he had obtained and was enjoying, it seems clear to me that Mr. Justice Van Kirk has placed the emphasis in the wrong place and that a reversal of this judgment would be doing a great injustice.
I am thoroughly convinced that Perry Willett understood just what he was doing; that he did just what he wanted to do at the time and that he had all the knowledge that he cared to possess when executing the agreement. He simply suffered a change of *531heart after he returned to the west. It is uncontradicted by Judge Rogers or any one that Perry told the judge in a conference with him after Bigelow’s first visit to the east “ that he had assigned it to who he wanted to and it was going where he wanted it to go.” Dr. Ingraham, the disinterested notary public, who was evidently a man of fine standing in the community, not only contradicts Perry Willett absolutely as to what took place but as a physician, competent to judge and having no interest, he testifies that Perry Willett was an unusual man for his age; that he talked perfectly rationally and said: “I don’t see how a man could talk in detail as he did about affairs so rationally and sanely and not know enough to understand that simple paper when it was read to him in a clear and distinct voice.” Thomas O’Brien, another disinterested witness, who had been an old friend of his, •testified that he had had conversations with him during his stay in the east and that Perry told him that he did not wish to go west but he dreaded the winter. He said he was used well and had a good home. He told him he was sorry for John Wright, who was blind and poor. He testified that Perry was just as good as he was forty years before for anything he saw. Pratt, the attorney, and Forest Kenyon are corroborated in so many particulars by these disinterested witnesses as are also John and Katherine Wright that there is not the slighest reason for discrediting their testimony as a whole. Whereas if the doctrine of falsus in uno, falsus in omnibus should ever be applied, it should be applied to the testimony of Perry Willett.
There is absolutely no testimony to show that Perry was dependent, physically or mentally, upon those present at the time of the transaction, or that he was in any way subject to their control. He was not weakened in mind or body by disease or mental infirmity. This action was not brought upon any theory that Perry Willett was incompetent to manage his affairs. If so, a committee should have been appointed to bring the action for him. Moreover, in August of the previous year he had made a will and one of his own witnesses, Mr. Wettack, cashier of the bank at Coffeyville, said that at that time Perry had sufficient mental capacity to understand the nature and character of his act, "the amount of his property and the objects of his bounty. His act in making this assignment to John and Katherine Wright did not take the property away from the natural objects of his bounty. There was no more reason for his leaving this property to Bigelow than to John and Katherine Wright. He had known John from boyhood and had expressed great sympathy for him because of his blindness and he expressed the same feeling to *532disinterested witnesses at the time he was living with the Wrights subsequent to this transaction. The Bigelows had been living 100 miles from him for ten to twenty years. They had never invited him to come to their home in Augusta to visit them during that time and very seldom had Bigelow been there at Coffeyville to see him. Bigelow had manifested no interest in him and as Perry expressed it to one of the disinterested witnesses, Bigelow had not even come to his assistance when his cattle had been stolen from him. He characterized Bigelow as a “ skunk ” in such conversations. He called him a gambler and a bootlegger and in fact it is undisputed that Bigelow was running a poolroom at the time of the trial and had been for many years engaged in that business. The Wrights did not even know that Perry was alive during the forty years that Mr. Justice Van Kirk says they were indifferent to him. On the other hand, the Bigelows did" know that Perry was alive and they were, actually indifferent to him until they saw the likelihood of losing some money which they had not expected him to have. When they succeeded in running away with him after two visits to the east, they took him to their bosom and made life very pleasant for him at Augusta. They had never done this before, although they knew of his condition, which the Wrights did not. Perry. Willett in his own examination admitted that he was very glad to see John Wright when he came to Coffeyville because, to quote his own testimony, “ I had no friends out there.”
Moreover, we must not lose sight of the fact that this assignment of his interest in Arthur’s estate was not a gift, but as he expressed it to one of the witnesses, it was a “ trade.” There is no reason to believe that the arrangement was not what ought to have been for his own best interests, namely, to live with relatives who did and would care for him rather than to live with a tenant on his farm and save whatever interest he had in Arthur’s estate for the benefit of a relative who for many years had taken no care of him and who suddenly became personally interested and pretended to care for him and led him away from Cambridge by some deception so that he could be the more likely recipient of Perry’s bounty. Too little importance is given to all of this by Mr. Justice Van Kirk, who places his chief reliance upon a conclusion that Perry’s appreciation of what he was transferring was too indefinite. I believe that Perry knew all that he wanted to know; that apparently he was not interested in the amount of money due him from Arthur Willett’s estate. What he wanted at the time was a woman’s care and a comfortable home. Of what interest was money to him at the age of ninety-four, when he had plenty for *533his needs in the west? His years were numbered and very few at best. He could not spend the money upon himself. He could only save it for Bigelow, who had already been made the legatee of all of his western property. Too little importance is given by " Mr. Justice Van Kirk to this promise of care and a home, which to one in his situation was better than a fortune. No matter what the amount of Arthur’s estate,, he wanted to give it to John and Kate "with whom he had never had a disagreement and for whom he had always had the kindliest of feelings and sympathy, particularly John because of his affliction. If he did not care about the amount of Arthur’s estate sufficiently to inquire in any more detail than he did, why should we give it such importance and call it an imposition upon him? He lived with the Wrights for two months thereafter and admits that the neighbors talked to him about Arthur’s estate. It is clear from disinterested testimony that he talked with others about it including Judge Rogers and did not complain until after he had returned to the west and was under the influence of the Bigelows. He wanted “ things comfortable ” and he was getting them at the home of the Bigelows at the time he started the action, although this was the first time he had obtained the same at their hands. He admits in his cross-examination that he would rather be on his farm at Coffey-ville than with the Bigelows if he could have things comfortable. He says: “ If I could have things comfortable I would like to be on the farm.” Whát appealed to him at the time of his examination may be presumed to have had a great appeal for him at the time of the transaction in question. Surely we cannot say that consideration was lacking or inadequate in the transaction in question. He had no reason to believe that the Bigelows would do this for him because they had failed to do it for many years with full knowledge of his situation. When the Bigelows came the second time they probably succeeded in convincing him that he could have the same comfortable home with them in the west without having to suffer the rigors of the climate of the winters in the east. He, therefore, changed his mind.
For all of these reasons, I feel compelled to dissent and to vote for an affirmance of the judgment.
Judgment reversed on the law and the facts, with costs, and the case returned to the trial court to determine what amount should be paid to defendants for moneys expended, services rendered or expenses incurred in behalf of Perry K. Willett under or as a consideration for the assignment. The court disapproves of findings of fact 8, 12, 25, 28, 30, 31, 37, 44, 45, 46, 47, and finds that at *534the time of the execution of the assignment Perry K. Willett was dependent upon and subject to the control of the defendants; that he did not deal on terms of equality with the defendants and their attorney; he placed confidence in them and signed the paper writing induced thereto by deception and concealment; that the paper when executed was not understood by him and its execution was not his free and voluntary act, the result of his deliberate judgment; that he did not ratify or confirm the assignment after its execution; that the assignment should be set aside; that the plaintiff recover from defendants any money or property received by them by virtue of such assignment.