Cummings v. Keach

• Decision Date: 12 June 1937
• Docket Number: 33428.
• Citation: 68 P.2d 1089,146 Kan. 157
• Parties: CUMMINGS et al. v. KEACH at al. [*]
• Court: Kansas Supreme Court

68 P.2d 1089

146 Kan. 157

CUMMINGS et al. v. KEACH at al. ^[*]

No. 33428.

Supreme Court of Kansas

June 12, 1937

Syllabus by the Court.

Under statute, any person having or claiming interest in estate may maintain action to contest will, regardless of extent or proportion of such share, and in case will is set aside matter of division of estate will be for subsequent consideration and determination (Gen.St.1935, 22-222).

A petition in a will contest alleging that plaintiffs were "related by blood" to decedent and that no relatives of any degree of consanguinity other than plaintiffs and those in class with them were left surviving was sufficient to show interest entitling plaintiffs to maintain contest in absence of request to make petition more definite and certain by setting forth exact relationship or interest claimed by plaintiffs to meet requirements of statute (Gen.St.1935, 22-222).

To be "of the blood" of a person is to be descended from him or from the same common stock or the same couple of ancestors.

In will contest, allegations of petition in addition to allegations showing interest of plaintiffs entitling them to maintain contest under statute which are in nature of conclusions of law may be disregarded as surplusage as against demurrer in absence of motion to make allegations more definite and certain (Gen.St.1935, 22-222).

1. Allegations of a petition in a will contest case, asserting that plaintiffs are related by blood to the deceased and that no relatives of any degree of consanguinity other than the plaintiffs and those in class with them were left surviving the deceased, are sufficient as against a demurrer, when no request has been made to make the petition more definite and certain, by setting forth the exact relationship or interest claimed by the plaintiffs to meet the requirements of G.S.1935, 22-222.

2. In an action to contest a will, where the plaintiffs claim an interest in the estate of the deceased and the petition in addition to allegations showing such interest contains other allegations in the nature of conclusions law, the latter may properly be disregarded or considered as surplusage when the sufficiency of the petition is raised by demurrer, without first having presented a motion to make the allegations of the petition more definite and certain.

Appeal from District Court, Sedgwick County, Division No. 1; Ross McCormick, Judge.

Action by Ira Cummings and others against O. A. Keach, individually and as executor of the estate of Sarah Josephine Dennis deceased, and others. From a judgment overruling a demurrer to the petition, the defendants appeal.

C. L Kagey, Hal M. Black, L. M. Kagey, all of Wichita, and John G Egan, of Topeka, for appellants.

Glenn Porter, Getto McDonald, Dwight S. Wallace, and William Tinker, all of Wichita, for appellees.

HUTCHISON Justice.

The appeal in this case is from the order of the trial court in overruling a demurrer to the petition.

The action was by three persons who claimed to be relatives and heirs of Sarah Josephine Dennis, deceased, against her executor and all the devisees and legatees named in the will, and was to set aside the will on the groundof undue influence and because she was mentally incompetent to make a will at the time it was made. The executor named in the will and appointed as such by the probate court was also one of the beneficiaries under the will, and he in his personal capacity and as executor filed a demurrer to the petition and appeals from the order overruling it. The other defendants filed pleadings of different kinds, but we are concerned in this appeal with nothing but the ruling of the court on the demurrer of O. A. Keach and O. A. Keach as executor.

There can be no question that in order to contest a will under G.S.1935, 22-222, one must be interested or claim to be interested in the estate or claim to be interested in the estate of the deceased, and it is largely to that point that the demurrer was directed. The extent or share of the interest of the plaintiffs is not important in this case because so far as we are advised from the record before us there is no attempt in this proceeding to determine the amount or share of the estate that should go to the plaintiffs or any one of them or others, but the whole purpose of this action is to set aside the will. Regardless of the extent or proportion of the share, any one having or claiming to have an interest in the estate, may maintain an action to contest the will and, if the will should be set aside, the matter of the division of the estate will be for subsequent consideration and determination.

The appellant insists that the allegations contained in the petition are insufficient to show that the plaintiffs have an interest in the estate entitling them to contest the will for the reason that their allegations in that regard are purely conclusions of law. The allegation of the petition concerning the interest of the plaintiffs in the estate are found entirely in paragraphs 14 and 15 of the petition, which are as follows:

"Fourteenth. That said Sarah Josephine Dennis left no husband surviving her, and left no children nor adopted children, nor children of deceased children, nor children of adopted children, nor children of deceased adopted children, and left no father and no mother surviving her, and left surviving her no relatives of blood of any degree of consanguinity other than these plaintiffs and those in class with them.

"Fifteenth. That plaintiffs and each of them and others in class with these plaintiffs, the identity of which other persons is presently unknown to these plaintiffs, are each and all related by the blood to Sarah Josephine Dennis, and are the true and lawful heirs at law of Sarah Josephine Dennis, deceased, and as such are entitled to inherit and succeed to her property and estate."

Are these allegations conclusions of law? Appellees contend that if they are conclusions at all, they are conclusions of fact. We think these paragraphs contain several allegations which are capable of being considered separately as well as collectively. Appellant presents and argues the insufficiency of some of these allegations separately--for instance, where it is stated that the deceased left no husband surviving her and no children nor adopted children nor children of deceased children or adopted children, but goes no further with reference to descendants, whereas there might have been great grandchildren, and plaintiffs do not state whether they are great grandchildren, and if they were such, there would have been no need of referring to ancestors and their descendants. In like manner appellants treat the allegations of the petition as to ancestors and their descendants. The petition alleges she left no father and no mother surviving her, but it does not state anything about grandparents surviving her or that plaintiffs were descendants of...