In re Crump's Estate

• Decision Date: 09 March 1946
• Docket Number: 36481.
• Citation: 161 Kan. 154,166 P.2d 684
• Parties: In re CRUMP'S ESTATE. v. CRUMP. CRUMP et al.
• Court: Kansas Supreme Court

166 P.2d 684

161 Kan. 154

In re CRUMP'S ESTATE.

CRUMP et al. v. CRUMP.

No. 36481.

Supreme Court of Kansas

March 9, 1946

Rehearing Denied April 11, 1946.

Appeal from District Court, Sedgwick County; Robert L. NeSmith Judge.

Consolidated actions by Bennie E. Sanders, as guardian of Samuel Crump, an insane person, after whose death the action was revived in the name of plaintiff as administrator of deceased's estate, to annul a marriage, and by Sallie Crump for probate of deceased's will, contested by George Crump and another. From a judgment annulling the marriage and denying probate, Sallie Crump appeals.

Judgment denying probate affirmed, and judgment annulling marriage reversed and cause remanded with directions.

HARVEY C. J., dissenting in part.

Syllabus by the Court.

1. The question of whether a testator had sufficient mental capacity to make a will is one of fact to be determined by the trier of the facts, and upon appeal from a finding thereon this court will not weigh conflicting evidence and will not disturb the finding if it was supported by competent substantial evidence.

2. Upon appeal to the district court from an order admitting or refusing to admit a will to probate parties are not entitled to a trial by jury as a matter of right.

3. Probate courts do not have jurisdiction to entertain an action to annul a marriage.

4. A judgment of a probate court annulling a marriage, in an annulment action commenced therein, is void for lack of jurisdiction of the subject matter, and upon attempted appeal therefrom to the district court the district court acquires no jurisdiction of the action by virtue of such appeal.

William Keith, of Wichita, for appellant.

John B. Bryant, of Wichita (B. Mack Brvant and George L. Adams, both of Wichita, on the brief), for appellees.

HOCH Justice.

This appeal presents for review two cases which were consolidated in the court below. Both were originally brought in the probate court. One was an action to annul a marriage and the other was for probate of a will. From judgment of the district court annulling the marriage and refusing to direct the probating of the will--both on grounds of mental incompetency--interested parties bring this appeal.

Samuel Crump and Sallie Williams, both residents of Wichita, Kansas, were united in marriage on July 15, 1941. On July 27, 1941, while Samuel Crump was a patient in a hospital at Halstead, Kansas, he executed what purported to be his last will and testament in which he bequeathed $1, to each of three sons by a former marriage, and left the remainder of his property, real and personal, to his wife Sallie Crump. On February 11, 1942, Crump was adjudged insane and Bennie Sanders was appointed as his guardian in the probate court. On September 22, 1943, Sanders, as guardian, filed a petition in the probate court to annul the marriage on the ground that at the time the alleged marriage was contracted Crump was 'physically and mentally incapable capable of entering into a marriage contract, or any other contract or agreement' and that Sallie Williams knew at the time that he was incompetent to enter into a marriage contract and that she 'procured said marriage ceremony to be entered into for the purpose of procuring whatever property' he might possess.

On November 26, 1943, Crump died and on December 28, 1943, Sallie Crump filed for probate the will to which reference has been made. To this petition George and Claude Crump, sons of the decedent, filed answers alleging that their father was mentally incompetent at the time the alleged will was executed. On February 10, 1944, the probate court held that the testator was incompetent at the time the instrument was executed and refused to admit it to probate. On the same day he appointed Sanders as administrator of Crump's estate. On February 24, 1944 the action to annual the marriage was revived in the probate court in the name of Sanders as administrator, and on March 23 the marriage was annulled.

On April 17, 1944, Sallie Crump took an appeal to the district court from the order annulling the marriage. For some reason which the record here does not disclose there was a long delay in transmitting the appeal to the district court and on October 26, 1944, Sallie Crump filed a motion in the probate court to set aside the order annulling the marriage on the ground that the probate court had no jurisdiction of the subject matter. The motion to vacate was overruled and appeal from that order as well as from the order annulling the marriage was transmitted to the district court on January 27, 1945. For the reason that the two appeals relating to the annulment of the marriage involved the same question the trial court announced that it would hold in abeyance the appeal from the order to vacate and would hear only the appeal from the order annulling the marriage, and the appeal from the order refusing to admit the will to probate. The cases will here be referred to as the will case and the marriage annulment case.

The question presented by the will case was whether Samuel Crump was mentally competent to make a will on July 27, 1941. The question in the marriage annulment case was whether he was mentally competent to enter into a contract of marriage on July 15, 1941. The record as shown by the abstract brought here is somewhat confusing but it appears that Sallie Crump objected to hearing the will case and the marriage annulment case together and that she filed a motion to dismiss the marriage annulment case on the grounds that the probate court had no jurisdiction to entertain the action, that Sanders, as guardian of Samuel Crump, had no capacity to bring the action and that if he did have such capacity the action did not survive and could not be revived in the name of the administrator and that no cause of action was stated. The trial court overruled the motion to dismiss and a jury was impaneled to try the will case and the trial proceeded. The testimony received related to Samuel Crump's mental competency over a considerable period beginning prior to the marriage on July 15th and extending beyond July 27th on which day the purported will was executed. The jury was unable to agree and was discharged. Thereafter and upon May 23, 1945, motions were made by the adversaries of Sallie Crump, in the two cases, to consolidate the two cases and for judgment in both cases on the pleadings and on the evidence taken in the will case. Sallie Crump resisted these motions and demanded separate trials in the two cases and that both actions be dismissed for want of jurisdiction.

The trial court refused trial by jury, consolidated the two cases and held that upon the evidence Samuel Crump was incompetent to enter into a marriage contract on July 15, 1941, or to execute a will on July 27, 1941. Orders were thereupon entered declaring the marriage void and refusing to admit the purported will to probate. This appeal followed.

We first consider the will case. The trial court did not err in holding that the petitioner was not entitled to a jury trial as a matter of right. G.S.1943 Supp. 59-2408 provides in part: 'All appeals other than those from the allowance or disallowance of a demand, adjudging or refusing to adjudge a person incompetent, and committing or refusing to commit a person to a state hospital, shall be tried by the court without a jury, but the court may call a jury in an advisory capacity or in a proper case may refer the matter or part thereof to a referee.'

G.S.1935, 60-2903 provides: 'Issues of fact arising in actions for the recovery of money or of specific real or personal property shall be tried by a jury, unless a jury trial is waived or a reference be ordered as hereinafter provided. All other issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by a jury or referred as provided in this code.'

Absolute soundness of mind is not the real test of testamentary capacity (Kunkle v. Urbansky, 153 Kan. 117, at page 122, 109 P.2d 71, at page 75, and cases cited) and we have uniformly held that on appeal to the district court from an order admitting or refusing to admit a will to probate or to set aside a will trial by jury is not a matter of right. Bell v. Skinner, 119 Kan. 286, 290, 239 P. 965; Gallon v. Haas, 67 Kan. 225, 72 P. 770; Hudson v. Hughan, 56 Kan. 152, 161, 42 P. 701; Rich v. Bowker, 25 Kan. 7, 9.

Appellant contends that there was no evidence to support a finding that Samuel Crump was not mentally competent to execute a will on July 27, 1941. Dr. Gardner who had practiced medicine for 50 years and who attended Crump while he was in the hospital in Wichita in July, 1941, testified in part:

'He had a 4 plus Wassermann, it might have been higher than that--which would indicate that he had syphilis to a degree of 4 plus and he had a paranoid condition in which the patient imagines a great many things such as being extremely wealthy and having authority and a right to dictate.

'Syphilis to the extent of 4-F affects the entire human body and in many cases the brain more than other structures of the body and it produces what is called softening of the brain. Samuel Crump when I saw him July 16, 1941, was not then or for any appreciabe time prior thereto of sufficient mental capacity to enter into any kind of a contract. I would say that the same condition existed on July 15th, 1941. There is no cure for 4 plus Wassermann. These conditions develop into what we call a soft tumor of the brain. There would not be any improvement in this patient 10 days later in so far as his having mental capacity to execute a will.

'Q. How often did you see him at the hospital? A. I saw him almost every day, only a time or two I didn't

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