dissenting: There is no arbitrary rule of law that the children of a deceased prison inmate at Lansing are entitled to his property, a will to the contrary notwithstanding.
The legal point in this case which in my opinion requires a reversal cannot be garnered from the court’s opinion.
The trial court found Joe Bernatzki, the deceased prison inmate, to be mentally incompetent on the 30th day of December, 1964, the date he executed his last will and testament. Among the evidence considered by the trial court in making this finding was the opinion testimony of one expert medical doctor based upon the opinion of another expert, a psychiatrist. The psychiatrist’s opinion was in the form of a report from the Kansas Reception and Diagnostic Center contained in the Kansas state prison files at Lansing, Kansas.
Rule No. 116 of this court (201 Kan xxxi) provides in part:
“. . . If evidence was admitted over proper objections, and in his reasons for the decision the judge does not state that such evidence, specifying the same with particularity, was not considered, then it shall be presumed in all subsequent proceedings that the evidence was considered by the judge and did enter into his decision.”
In the instant case the matter was heard by the trial judge who determined the facts, and he overruled the proponent’s objection to the prejudicial evidence which was inadmissible under Kansas law.
*138The point which I think is material and controls the decision herein cannot be considered in isolation and apart from the entire record presented.
Of the twenty-two persons who testified in this case, including medical doctors, only two testified that in their opinion Joe Bernatzki was incompetent at the time he executed his last will and testament. These two witnesses were medical doctors by the name of Dr. Walter L. McKim and Dr. M. Dale Atwood.
The medical doctor who regularly attended Bernatzki in the penitentiary was Dr. Robert H. Moore, the medical director at the Kansas state penitentiary. He frequently saw Joe Bernatzki and attended his ailments, and in his opinion Joe Bernatzki was competent at the time he executed his will on the 30th day of December, 1964.
Dr. David G. Shivel, also a medical doctor, testified he did not know Joe Bernatzki, but after reviewing the depositions and medical records, he felt Joe Bernatzki could well have had the presence of mind during December, 1964, to know the objects of his bounty, the people he wanted to inherit his property, and the extent of the property he owned. He stated he would lean on the judgment of legal counsel.
John H. Murray, an attorney in Leavenworth, who took the last will and testament of Joe Bernatzki to him in the penitentiary for execution on the 30th day of December, 1964, testified he first met Joe Bernatzki on November 16, 1955, having represented him at that time in connection with a parole matter; that he had considerable correspondence with him and next saw Bernatzki on April 5, 1956. In Murray’s opinion Bernatzki was legally competent to make a will at the time he executed his last will and testament. He read the will to Bernatzki, to which Bernatzki responded it was the way he asked that it be drafted. He asked Bernatzki if he was aware of the fact he was cutting out his children, and Bernatzki said he was. He asked Bernatzki the reason for this, and Bernatzki told him his children had more or less nothing to do with him at the time he was tried, and apparently made no effort to help him get out of the penitentiary.
It is to be noted the testimony of all medical doctors and John H. Murray was by deposition.
*139The files of the Kansas state penitentiary at Lansing included a report of Joe Bernatzki while at the Kansas Reception and Diagnostic Center, Topeka, Kansas, from April 2, 1965, to April 9, 1965. This was a little over four months after he executed the will in controversy. This report was held to be admissible in evidence under the provisions of K. S. A. 60-460 (m), the business entries exception to the hearsay rule. The report contained a medical case summary showing the results of Joe Bematzki’s physical examination and recommendations by Richard D. Nabours, M. D., dated April 7, 1965. The report also contained a psychiatric diagnostic report showing the findings of a psychiatrist together with his conclusions which are stated as follows:
“The syndrome of organic brain disorder is a basic mention condition characteristic of diffuse impairment of brain tissue function from any cause. These disorders are characterized by a basic syndrome consisting of impairment of orientation, impairment of memory, impairment of all intellectual functions (comprehension, calculation, knowledge, learning, etc.), impairment of judgment, and liability and shallowness of affect.
“This syndrome may be the only mental disturbance present or may be associated with psychotic manifestations, neurotic manifestations, or behavioral disturbance.
“The prisoner definitely suffers from such a disorder with psychotic and behavioral disturbances.
Recommendations
“From medical and psychiatric point of view this man needs an environment where his needs can be met. There is a strong indication from a medical point of view that this man be on a salt free diet and on a diabetic diet. His moderate anxiety and worrying moods with mild depression can be very easily managed with tire modern tranquilizing drugs. Since there are definite symptoms of an organic brain syndrome with senile deterioration, he will need structure and guidance. There is an absolute must that this man will be under supervision and seen by a medical doctor at least once a week.”
This report is dated April 7, 1965, and was signed by Karl K. Targownik, a psychiatrist, as clinical director of the diagnostic center.
Dr. McKim testified by deposition that he was remotely acquainted with Joe Bernatzki; that he had thumbed through the records of Dr. Atwood of Kinsley, and had practiced in the same building with Dr. Atwood. He also testified he had examined the medical records contained in the deposition of Sherman H. Crouse and the psychiatric evaluation.
*140Based upon the total medical records and the psychiatric evaluation to which the witness had access, he stated that Joe Bernatzki in his opinion in October, 1964, was of unsound mind. No hypothetical question was put to this witness concerning the basis of his opinion.
When asked by counsel if Bernatzki was continuously of unsound mind Dr. McKim answered:
“I would put it this way: You have to say he was probably of unsound mind at that time; it may have been a few minutes, here; an hour, there; a day, here and there, where you might say this man is fairly sound of mind— he remembers what he’s got and so on like this; at other things [times] there would be big holes in his memory.”
On further examination Dr. McKim said:
“In business transactions or something involving the higher mental processes, this gentleman may never have been competent. He had essentially no education.”
Dr. Atwood testifying by deposition said Joe Bernatzki was his patient and identified records of visits with him on February 16, 1954, March 3, 1954, and on February 27, 1958. On March 3, 1958, he started treating him for syphilis, but there is no record that Dr. Atwood saw Joe Bernatzki at any time after June 2, 1959.
Dr. Atwood reviewed the medical records in the deposition of Sherman H. Crouse, consisting of the medical case summary of Dr. Nabours and the psychiatric report contained in the Kansas Reception and Diagnostic Center report. No hypothetical question was put to Dr. Atwood, but he was permitted to testify that in his opinion on December 30, 1964, Joe Bernatzki was of unsound mind and an incompetent person. He acknowledged that a competent physician giving a competent opinion could perhaps have influence on his opinion.
On cross examination he testified:
“Q. If you were going to base your medical reputation that Mr. Bernatzki was of unsound mind from this neurological examination, would you base it on this report?
“A. Well, of course, you wouldn’t form a conclusion on one report. After all, a doctor sees a patient over a period of time and he knows that patient or else he refers this patient and gets somebody else’s opinion.
“Q. Are you ready to base your medical reputation on the fact Mr. Bernatzki was of unsound mind April 7, 1965, based on this medical report?
“A. Yes, I would say that.
“Q. Now, you say that you are willing to stake your reputation on that?
“A. Yes.”
*141It is to be noted counsel for the appellant objected as to the admissibility of the report from the Kansas Reception and Diagnostic Center. Among other things, he specifically objected to the conclusions stated therein prior to the acceptance of these documents in evidence.
The opinions of both Dr. McKim and Dr. Atwood were based in part upon the report from the Kansas Reception and Diagnostic Center which contained the conclusions heretofore quoted without any indication in the record as to a limitation of their use by such witnesses.
The court approved the admissibility of this kind of opinion testimony based upon the provisions of K. S. A. 60-456 (b) (1), which states:
“(b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing. . . .” (Emphasis added.)
It may be said Dr. McKim and Dr. Atwood testified concerning matters made known to them at the hearing, but to the extent that these matters consisted of the conclusion and opinion in a psychiatrist’s report, they go beyond the authorization in the statute.
If it be assumed the psychiatrist’s opinion concerning the mental condition of Joe Bernatzki on the 5th day of April, 1965, is a fact, then there is conflicting evidence in the record on this matter. Under these circumstances a hypothetical question is necessary to lay a proper foundation for such opinion testimony. K. S. A. 60-456 and 60-458 were not intended to effect a change in the prior law of this state. In Gard, Kansas Code of Civil Procedure Annotated, § 60-458, pp. 453, 454, it is said:
“. . . But it is the established rule in Kansas and elsewhere that where the facts are disputed and the opinion is based on facts outside the personal observation of the witness, a hypothetical question is necessary to present the theory upon which the opinion is based. See Tefft v. Wilcox, 6 K 46; Shouse v. Consolidated Flour Mills Co. 132 K 108, 294 P. 657. . . .”
Weighing the evidence of Dr. Targownik, assuming the report is properly in evidence, is the province of the trier of the facts, and it is not the function of another expert witness at the trial to weigh such report and base his opinion concerning the mental condition of Joe Bernatzki on the 30th day of December, 1964, in part upon conclusions made by Dr. Targownik. (See The People v. Black, *142367 Ill. 209, 10 N. E. 2d 801.) To this extent the opinions of Dr. McKim and Dr. Atwood invaded the province of the trial court. Squarely in point is Love v. Common School District, 192 Kan. 780, 391 P. 2d 152, which held in substance that the opinion of an expert appraisal witness could not be based upon the valuation of property made by a third party even though the figures from such appraisal were recorded on a document filed in a public office.
An analogous situation is presented in the law of torts where liability cannot be predicated on an inference based upon an inference, or on a presumption based upon a presumption. (Emigh v. Andrews, 164 Kan. 732, 736, 191 P. 2d 901.)
It is of interest to note Elizabeth Stiebe, one of the children of Joe Bernatzki and a contestant of his last will and testament, testified that if her father had left a will giving all of his property to her and her sister and brother, he would have been competent to make this will.
Another point made by the trial court in its findings of fact was that on December 4, 1964, Joe Bernatzki without the assistance of counsel, caused to be filed with the clerk of the district court of Edwards County his petition for relief pursuant to K. S. A. 60-1507, using the form suggested by the Supreme Court Rules. When the petition was eventually heard in the district court on the 23rd day of June, 1965, Bernatzki was personally present in court. While Bernatzki was testifying in person to support his 1507 motion, the trial judge who heard the instant case on his own motion made a finding that Bernatzki did not know why he was in court and forthwith dismissed his petition, but without prejudice. The court stated, however, it would not entertain a similar petition until Bernatzki had been examined and the court assured he had sufficient mental capacity to comprehend his position and prosecute his petition on the grounds stated therein. In view of this finding made by the trial court herein, perhaps the trial judge should have disqualified himself in this case. (See In re Estate of Hupp, 178 Kan. 672, 291 P. 2d 428.)
It is respectfully submitted the judgment of the trial court should be reversed and remanded for a new trial on the ground that it considered opinion evidence erroneously admitted in the trial of the case to the prejudice of the appellant.