Federal Trust Company v. Allen

• Decision Date: 11 February 1922
• Docket Number: 23,508
• Citation: 204 P. 747,110 Kan. 484
• Parties: FEDERAL TRUST COMPANY, Appellant, v. F. S. ALLEN et al., Appellees
• Court: Kansas Supreme Court

204 P. 747

110 Kan. 484

FEDERAL TRUST COMPANY, Appellant, v. F. S. ALLEN et al., Appellees

No. 23,508

Supreme Court of Kansas

February 11, 1922

Decided January, 1922

Appeal from Butler district court; ALLISON T. AYRES, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. MATERIAL EVIDENCE--Witness Withheld--Presumptions--Inferences. Where a party has it within his power to produce witnesses, presumably favorably disposed toward him, to explain a transaction or answer a controverted question, his failure so to do, unless satisfactorily explained, justifies an inference that the testimony if produced would be unfavorable to his side of the controversy.

2. JURISDICTION--Appointment of Guardian--At Permanent Residence of Ward. The jurisdiction to appoint a guardian over the person and estate of a lunatic or person incompetent to manage his affairs, belongs exclusively to the state where such person has a permanent residence.

Bennett R. Wheeler, S. M. Brewster, John L. Hunt, all of Topeka, A L. L. Hamilton, and J. B. McKay, both of El Dorado, and George A. Adams, of Lincoln, Neb., for the appellant.

B. R. Leydig, K. M. Geddes, and E. W. Grant, all of El Dorado, for the appellees.

OPINION

PORTER, J.:

The action in the district court was for the writ of habeas corpus. The petitioner is The Federal Trust Company, a Nebraska corporation, and claims the right to the custody of Emily J. Weston, a feeble-minded person, by virtue of its appointment as guardian of her person and estate by the county court of Lancaster county, Nebraska. The respondent, F. S. Allen, claims the right to her custody by virtue of an appointment as guardian by the probate court of Butler county, Kansas. Charles A. Weston is a stepson of Emily J. Weston and he and his wife are the other respondents.

On November 23, 1920, a petition was filed in the county court of Lancaster county, Nebraska, charging that Emily J. Weston was incompetent to have the management of her property and that she was detained in El Dorado, Kan., by her stepson, Charles A. Weston, and asked for the appointment of a guardian. The hearing was set for December 27, 1920. Notice as provided by the statutes of Nebraska was given by publication to all persons interested and a certified copy of the notice was delivered to Emily J. Weston, on November 25, 1920, at the home of her stepson in El Dorado, Kan. On the date appointed, December 27, 1920, the matter came on for hearing before the Nebraska court, and an order was made appointing the petitioner as a suitable corporation to act as such guardian. On December 20, 1920, Charles A. Weston filed a petition in the probate court of Butler county, asking for a similar appointment under the laws of this state. On the 27th day of December, 1920, the same date on which the Nebraska court made the order appointing the petitioner, the probate court of Butler county took jurisdiction of the matter, found there was no occasion for empaneling a jury and appointed a commission of two doctors; and upon their report appointed F. S. Allen guardian of the person and estate.

The petition for the writ in this case alleged that Emily J. Weston at all times mentioned therein has been and is a citizen and legal resident of Nebraska and had been for more than thirty years. It set forth the proceedings in the Lancaster county court, pleaded the laws of Nebraska with respect to the jurisdiction of that court, and attached certified copies of the letters of guardianship; alleged that the probate court of Butler county had no jurisdiction, and that the Westons procured the appointment of a guardian in pursuance of a fraudulent intention to obtain possession of the person and property of Emily J. Weston, and to deprive her children of her custody and society.

The return of F. S. Allen set out the proceedings in the Butler county court and asked that his right and authority as guardian be confirmed, and that the prayer of the petitioner be denied.

The respondents, Charles A. Weston and wife, filed their return, adopting the statements and denials in the return of F. S. Allen, and alleged that they had been employed by him as guardian to take care of Emily J. Weston, and that their employment had been confirmed and approved by the probate court. At the close of the testimony the district court rendered a judgment in favor of the respondents and against the petitioner. The appeal is from that judgment.

There is a statement in the journal entry to the effect that the court made findings in substance that on the 20th day of December, 1920, Emily J. Weston was and "for some time prior thereto had been and has been ever since" a resident of Butler county, Kansas; that during November and December, 1920, and January, 1921, she "was not a resident of and had no property, either real or personal within Lancaster county, Nebraska." In respondents' brief it is insisted that in a proceeding in habeas corpus to secure the possession and control of an elderly person, such as is Emily J. Weston, "the controlling feature in the disposition of the case should always be, what the best interests, comfort and welfare of such old person demand and require. It seems to us that this is what the court should be guided by in determining the matter. We think the trial court largely accepted this view. In fact we know that he did." The brief comments on the fact that Emily J. Weston has been receiving the care and attention she requires "since she came to Kansas," and is not compelled to move about from one place to another; that her welfare demands a permanent home and "that the court wisely determined that the writ should be denied so that she could enjoy the home she had known for a number of months." To this contention we cannot agree. The lawful guardian of the person and estate is entitled to the custody. The order of the court appointing the lawful guardian cannot be set aside because another court might think the ward would be better cared for by a different guardian.

The uncontradicted evidence shows that Emily J. Weston had lived in Nebraska about fifty years prior to the time she was brought by her stepson in May, 1920, to his home in El Dorado, Kan. At the time of the trial she was seventy-eight years old; she has six married children, two of whom live in Lincoln, another on a farm twelve miles from Lincoln, one in Burwell, Neb., one at Woodlake, Neb., and one in Portland, Ore. She has a number of grandchildren living near Lincoln. She and her husband lived on a farm for more than thirty years which was three or four miles from Lincoln. On the death of her husband she was appointed executrix of the estate, which consisted of 149 acres of land and other property. She continued to reside on the land and farmed it herself until about four or five years ago, since which time she has lived with her married children who reside in Nebraska.

George A. Adams, a lawyer of Lincoln, who had known her for twenty-eight years and had represented her as executrix of the estate, testified in substance as follows: He first became acquainted with Charles A. Weston when he threatened to contest his father's will if not permitted to participate in the division of the estate at the old lady's death; and it was finally agreed that he should at the time be treated as one of her children so far as a division of her property was concerned. Afterwards in September, 1919, he came to the witness's office in Lincoln to see about the sale of the real estate. The land was partitioned in 1920 and Mrs. Weston realized something more than $ 7,000 from the sale; she had other property and securities kept in a box belonging to her in the Lincoln Safe Deposit Company; the witness had the key part of the time, and she had it part of the time. He had a conversation with Charles A. Weston, who spoke about the old lady making him a visit; asked if witness was looking after her business, and wanted to know if it would be all right. Mr. Adams said, "Of course, she can go if she wants to." The subject of her making this visit was talked over probably a half dozen times in her presence; she did not seem to want to go and said she had just been down to visit him and it was a big, long ride and she did not care much about going. On one occasion she said, "If I get down there and Charles don't bring me back, how will I get back?" Charles said, "Don't be uneasy about that, mother, I'll bring you back." The witness said, "If he don't, some of the girls will go after you."

Three of the daughters, a daughter-in-law, and a son testified to similar conversations with Charles Weston before their mother was taken to Kansas, and that at no time did he make any suggestion of her making her home with him; it was the understanding of all the children that she was to go and make a visit, stay as long as she wanted and come back to the rest of the children. No one of the family learned that the mother's notes, securities and money had been taken away from Lincoln until after the appointment of a guardian in Nebraska.

The attorney, Mr. Adams, further testified that in May, 1920 when Charles Weston brought his stepmother to Kansas, her mental condition was very feeble, her memory faulty, her conversation disconnected and rambling; that she had been in this condition four or five years; talks had been had at various times in reference to appointing a guardian for her, but no formal steps had been taken until November 22, 1920; that when Charles Weston went to Lincoln and took her to El Dorado she was living around among her daughters; with Edith Densberger at University Place, near Lincoln; that when that daughter moved to Cherry county she went to her daughter Stella's place in...