Hoppin v. Lang
| Decision Date | 21 November 1925 |
| Docket Number | 5745. |
| Citation | 241 P. 636,74 Mont. 558 |
| Parties | HOPPIN v. LANG. |
| Court | Montana Supreme Court |
Rehearing Denied Dec. 12, 1925.
Appeal from District Court, Valley County; Frank P. Leiper, Judge.
Action by C. E. Hoppin, as guardian of the person and estate of Ernestina Lang, an incompetent person, against A. Lang. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions.
Appeal from judgment setting aside probate decree not dismissible though corrected probate decree entered.
Dignan & Shea, of Glasgow, for appellant.
Hurd Rhoades & Hallett, of Glasgow, for respondent.
This is an appeal from a judgment and decree setting aside a decree of distribution in the matter of the estate of Gustav Lang deceased, reopening the estate matter for further administration, and directing the court in probate, on application of plaintiff, to make a new and corrected decree distributing certain real estate to A. Lang and Ernestina Lang, share and share alike. The facts, briefly stated, are as follows:
A. Lang and Ernestina Lang were married in Russia; they had two sons, Rudolph and Gustav. Twenty-six or 27 years prior to the date of trial, the family then being located in North Dakota, Ernestina Lang deserted her family. She told her sons that she would like to go to Milwaukee, but it was not known definitely where she went. Three years later defendant secured a decree of divorce from his wife, and at that time he had no property with the exception of a homestead entry. Lang later acquired property in North Dakota, went to Canada, and there acquired other property. Becoming involved in Canada, he deeded certain property to his creditors and returned to North Dakota. Eight years prior to the time of trial, defendant, with his sons, came to Valley county in this state. All real estate acquired in Montana stood of record in the name of Gustav Lang, who died on May 29, 1920. Thereafter A. Lang, the father, filed the usual petition for letters of administration, in which it was recited that Gustav Lang died intestate in Valley county, leaving an estate therein consisting of real estate, with the description thereof, and that "the next of kin of said deceased, and heir at law" was A. Lang, father. No mention was made of the mother. The estate was fully administered upon, and on December 14, 1920, A. Lang, as administrator, filed his petition for final distribution of the estate to A. Lang as sole heir at law. The decree of distribution was duly made and entered, after the statutory notice given, on December 28, 1920, and the estate matter was then closed.
On May 5, 1922, the probate court for the county of Milwaukee appointed a guardian of the person of Ernestina Lang, "an incompetent person," and on July 20, 1922, plaintiff, C. E. Hoppin, was duly appointed guardian of the person and estate of Ernestina Lang by the district court of Valley county, Montana. On August 15, 1922, Hoppin, guardian, filed complaint herein, alleging that Gustav Lang died leaving surviving as his only heirs at law, A. Lang, father, and Ernestina Lang, mother, and that at the time of his death Gustav Lang "was the owner and in possession of" the lands described in the decree of distribution; that in his petition for letters of administration, and again in his petition for distribution, "the said A. Lang, notwithstanding that he well knew of the existence and whereabouts of said Ernestina Lang, and was fully cognizant with her rights in the estate of Gustav Lang, deceased, willfully, wrongfully, fraudulently, and unlawfully represented to the court himself to be the only heir of said Gustav Lang," etc.; that said Ernestina Lang had no notice whatever of the proceedings had in the matter of the estate of Gustav Lang, deceased, and "that by reason of the fact that she was at all times herein mentioned insane and incompetent and had no person with the authority to look after her interests, until the appointment of her guardian * * * [in 1922] she could not have protected her said rights if she had had such notice."
The complaint then alleges that more than one year had elapsed since the entering of the decree, and "plaintiff has no adequate remedy at law or otherwise, save and except by this action." A demurrer to the complaint was interposed and overruled, and thereupon the defendant answered, admitting the allegations that A. Lang and Ernestina Lang were the only heirs at law, and that the property stood of record in the name of Gustav Lang, but alleging affirmatively that the property was purchased by defendant with his own funds and title placed in the name of Gustav Lang for convenience merely, but that defendant was at all times the owner and in possession thereof, and denied all allegations of knowledge of the existence or whereabouts of Ernestina Lang and of misrepresentation or fraud. By reply the plaintiff denied the affirmative allegations of the answer, alleged that defendant was estopped by his admissions in the probate matter from asserting title, and that, if the lands were purchased by defendant, such purchase was made with funds belonging to Ernestina Lang, she having loaned "large sums" to A. Lang during their married life. A demurrer was interposed to the reply and overruled.
On the trial plaintiff contented himself with the introduction of the deeds to Gustav Lang and the records in the probate proceeding, supplemented by proof that Ernestina Lang had been insane since 1907, at which time she was committed to an asylum in Wisconsin, and of the appointment of her guardian, prior to which appointment she had had no such representative. The plaintiff further showed, by the superintendent of the asylum, that at one time, 8 or 10 years prior to the time of trial, Rudolph Lang had visited his mother, and later, perhaps 7 or 8 years before the trial, Gustav called upon her. The court denied a motion to strike this testimony, but with the statement that it did not consider the testimony binding upon the defendant. No attempt was made to show that defendant knew of such visits, nor was any further attempt made to show knowledge of the existence or whereabouts of Ernestina Lang on the part of defendant.
Defendant, on his own behalf, testified that he had never seen nor heard from his wife since she left him; that Gustav Lang was "a very weak boy, lame, deaf, and stammered," and never did any work; never earned nor had any money; that he purchased the property with his own money and put the title in Gustav's name until he could effect a settlement with his Canadian creditors, but with no intention to defraud his creditors.
The son Rudolph testified that the property was purchased by his father with his (the father's) own funds; that all money banked in the name of himself and Gustav belonged to the father, and that title was taken in the name of Gustav for the purpose stated by the father under an agreement that Gustav should later transfer to defendant, and that, on several occasions, and especially after the Canadian creditors had received from the property deeded to them more than the full amount of their claims Gustav had asked to have the transfer made, but that it was not done. Rudolph testified further that Gustav could do no farm work at any time, and all that he ever did was to help with the housework and cooking.
J. L. Truscott, grantor of a part of the property, testified that he dealt only with A. Lang, and that the deeds were made with Gustav Lang as grantee at the request of A. Lang.
On cross-examination the defendant was asked why he had not told his attorney in the probate proceedings of the mother. His answer was:
"I am divorced from my wife so many years, and I thought that is the end of everything; then I come from the old country, Russia, and in Russia a woman had nothing to do with a man's land, and even in Canada a woman had nothing to do with the land, and I thought this is the same law here, and that nobody had nothing, because she don't have one penny with it; I forgot altogether and I am forgetting."
Asked concerning Ernestina's property at the time of their marriage, defendant stated that she then had about 600 rubles of the value of 48 cents each. He was questioned as to whether he knew where his wife went when she left him, but not as to knowledge of the visits made by the sons.
By way of laying the ground for impeachment, defendant was asked whether, on one occasion, he did not say that "the boys and I have plenty of money; we don't have to work;" if, on the occasion of loaning $2,000 to the Baptist Church, he did not tell one Pease that the money belonged to the boys; if on one occasion he did not tell one Martha Klutzeck, while riding on the front seat of an automobile with her, that the 40-acre tract, pointing it out, was Gustav's place; if, on another occasion, he did not tell one Mrs. Henry Berger that when Gustav died he was worth $40,000; and further that when he married his wife she was the daughter of a Baptist minister and wealthy. Defendant answered each of these questions in the negative. Witnesses called later answered as indicated in the questions.
At the close of the trial on October 24, 1924, plaintiff and defendant submitted proposed findings of fact and conclusions of law, and stipulated that the findings made by the court might be signed anywhere within the state of Montana.
On January 3, 1925, being the last legal day of his term, Judge Comer, then at Plentywood, Sheridan county, adopted the proposed findings of plaintiff and signed them as his own; he then delivered them to his stenographer for delivery by registered mail at Glasgow for filing. The stenographer reached the post office after 6 p. m., and the package was held and entered as a...
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