Bruington v. Ellis

• Decision Date: 10 March 1917
• Docket Number: 20,336
• Parties: GEORGE F. BRUINGTON et al., Appellees, v. GEORGE F. WAGONER and HATTIE ELLIS, Appellants
• Court: Kansas Supreme Court

164 P. 1057

100 Kan. 10

GEORGE F. BRUINGTON et al., Appellees, v. GEORGE F. WAGONER and HATTIE ELLIS, Appellants

No. 20,336

Supreme Court of Kansas

March 10, 1917

Decided January, 1917.

Appeal from Morris district court: ROSWELL L. KING, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. DEED -- Bank Stock -- Mental Incapacity of Grantor and Assignor. Evidence examined and held sufficient to sustain the findings of the trial court that the grantor of instruments conveying his real property and assigning his bank stock to defendants was mentally incompetent and incapable of making them at the time of their execution and delivery.

2. PHYSICIAN--Statutory Incompetency to Testify May be Waived. "The heirs at law of one who has been treated by a physician may waive the provisions of the statute making a physician incompetent to testify to any knowledge obtained in his professional capacity from his patient." (Fish v. Poorman, 85 Kan. 237, 116 P. 898, syl. P 6, 116 P. 898.)

M. B. Nicholson, W. J. Pirtle, both of Council Grove, and J. B. Harsh, of Creston, Iowa, for the appellants.

D. H. Brown, of Council Grove, C. G. Saunders, and David E. Stuart, both of Council Bluffs, Iowa, for the appellees.

OPINION

DAWSON, J.:

The plaintiffs are the children of a deceased brother and the defendants are the children of a living sister of the late Dr. George W. Bruington, who was for many years a resident of Morris county, Kansas; and this lawsuit concerns Doctor Bruington's disposition of his property when he was about seventy-five years old, some two years before his death.

Dr. George W. Bruington came to Kansas in 1880 and resided on a Morris county farm for over twenty years. He and his wife accumulated some property, and about 1902 they removed to Council Grove. In 1912 his wife died there, and a few days thereafter he left Council Grove for Creston, Iowa, in company with the defendants and their mother. Four days after he left Council Grove Doctor Bruington executed deeds conveying his Morris county land and town property to the defendants, and assigned to them his bank stock. He died in Rosedale, Kan., in 1914; and the plaintiffs' action is to set aside the deeds, to cancel the assignment and transfer of the bank stock, and for an accounting of the rents and profits and for judgment for their proportion thereof as heirs of Doctor Bruington. The grounds upon which the relief are sought are:

"That in the month of September, 1912, one Geo. W. Bruington, an uncle of the plaintiffs and said defendants, then residing at Council Grove, Kan., and who was then about seventy-five years of age, was of feeble and unsound mind and impaired in health. That at the time, and for some years prior thereto and thereafter until the death of the said Geo. W. Bruington, in the month of August, 1914, he was of unsound mind and incapable of transacting business or managing his own affairs, and because of the impaired and feeble condition of his mind, and lack of understanding, was incapable both in law and in fact of executing any conveyance or otherwise making any intelligent, legal or valid disposition of his property.

"That on or about the 2d day of September, A. D. 1912, the wife of the said Geo. W. Bruington, also aged in years, died at Council Grove, Kansas, and on which said occasion the defendants came to the home of the said Geo. W. Bruington, where they remained with him and kept themselves constantly in his company, and because of his recent bereavement and his childlike and simple minded condition, acquired an excessive and undue influence over him.

"That in the course of two or three weeks they coerced and persuaded the said Geo. W. Bruington to accompany them to the state of Iowa, where on the 26th day of September, A. D. 1912, taking advantage of the impaired and enfeebled condition of his mind and of the undue influence which they had acquired over the said Geo. W. Bruington, and without any consideration therefor whatever, the said defendants wrongfully, unlawfully and fraudulently persuaded, coerced and induced the said Geo. W. Bruington to sign and deliver to them a certain purported deed under and by which he purported to transfer and convey to said defendants the following described real estate . . . and coerced the said Geo. W. Bruington to transfer and assign to them without consideration therefor, three certain certificates, aggregating twenty shares, of the capital stock of the Council Grove National Bank which he then owned and held in his own name. . . . That the said defendants obtained said purported deed from the said Geo. W. Bruington and the said purported assignment of the said bank stock and other property for the sole and only purpose of cheating, wronging and defrauding these plaintiffs out of any and all right, title or interest therein or which they might inherit therein at the death of the said George W. Bruington, as his legal heirs.

"That the said Geo. W. Bruington left no debts against his estate and that no administration of his estate has ever been appointed.

"That said defendants have been wrongfully receiving and converting to their own use all the rents and profits arising from said real estate and the dividends upon said bank stock, since the 26th day of September, 1912," etc.

The pertinent part of the trial court's judgment reads:

"And the court having heard said evidence and being duly advised in the premises does find generally for the plaintiffs and against the defendants, and that the allegations of plaintiffs' petition are true. The Court further finds that the deed and assignment of bank stock mentioned in plaintiff's petition are illegal and void, and that the said George W. Bruington, deceased, was incompetent and mentally incapable of making the same, and that said deed and assignment should be set aside and canceled."

The defendants assign error:

"First--The findings and judgment of the court are contrary to the evidence, and

"Second--The court admitted incompetent testimony on behalf of the plaintiffs."

The abstract and counter abstract setting out the evidence are unusually voluminous. Part of this evidence tended to show that for some years prior to the execution of the deeds and the assignment of the bank stock Doctor Bruington's mental powers had declined, that his wife had largely supervised his business, that he was absent-minded, listless, and forgetful of old acquaintances. He spent part of his time picking up stones, filling his pockets with cigar stumps, rusty nails, pieces of iron, pieces of dishes and glass bottles--such things as a child might do. Some years before his death he held the office of secretary of the Odd Fellows lodge, but was unable to keep its accounts and was removed for incompetency. A day or two after Doctor Bruington's wife's death defendant Wagoner called on a local attorney to arrange with him for the making of a will by Doctor Bruington which would bequeath the doctor's property to the defendants. This evidence reads:

"I suggested to him probably it was not necessary to make a will, that Dr. Bruington's property would go to his [Wagoner's] mother, Dr. Bruington's sister. He said with reference to that he had some other relatives. He said the doctor had a brother Tom. [Tom was the father of the plaintiffs.] He said Dr. Bruington didn't like this brother Tom and he didn't want him to acquire any of the property and he wanted to fix this will so they would get it. I told him that I was not quite sure in my mind whether Dr Bruington could make a will; that I had heard some few things about him since the funeral. And I knew in a general way what shape he was in. I told him I would not undertake to draw the will without first seeing him and talking with him and I asked him whether he would bring Dr. Bruington up to my office and he said he would. He brought him up in the afternoon about 5 o'clock. When Dr. Bruington came in there and I spoke to him, he says, 'How do you do.' I asked him if he knew me. He said he did not. I told him who I was and invited him to have a seat. I had been practicing law all the time Dr. Bruington had been in town and I knew him before he moved to town and after he moved to town. I lived near him and passed his house several times a day. I lived a block farther north. . . . I said to Dr. Bruington then, 'Doctor Bruington, Mr. Wagoner has been talking about drawing a will for you.' He made no response. I asked him if he had talked the matter over with Mr. Wagoner, about what he wanted to do with this property. He still made no answer. I remember at that time in answer to that question that Dr. Bruington just turned around. He had a sort of a drawn expression to his face. He then turned back immediately and continued to gaze to the back part of the office. I then asked him directly if he wanted to fix this property so his brother Tom would not get any of it at his death, and he said, 'Tom--Tom lives'--he mentioned some town in Iowa. I don't remember the name of the town. He mentioned how long it had been since he had seen him. It was a number of years, I don't remember now, but he did mention the number, something like ten years. He said something about that he might go back there on a visit after he got his potatoes dug, and I just looked at Mr. Wagoner, and Wagoner said, 'Well, he isn't himself to-night,' or 'He is off to-night,' or something of that kind, and I will take him home. . . . There is one other matter--I don't know whether I ought to state it or not, I just recollect it now--but I can't recollect whether...