Kucaba v. Kucaba, 31897.

Citation146 Neb. 116,18 N.W.2d 645
Decision Date11 May 1945
Docket NumberNo. 31897.,31897.
CourtSupreme Court of Nebraska
PartiesKUCABA et al. v. KUCABA et al.

146 Neb. 116
18 N.W.2d 645

KUCABA et al.
v.
KUCABA et al.

No. 31897.

Supreme Court of Nebraska.

May 11, 1945.


Appeal from District Court, Saline County; Bartos, Judge.

Action by Anton Kucaba, Jr., and others against Edward Kucaba and wife and others, to vacate and set aside a deed on the ground that it was obtained by undue influence on mentally incompetent grantors, and that signatures attached to deed were forgeries. From a judgment for named defendant and wife, plaintiffs appeal.

Affirmed.

[18 N.W.2d 646]


Syllabus by the Court.

1. Evidence which is admitted generally is in the case for any legal purpose for which it is admissible, although the evidence, when introduced, was intended for a particular purpose.

2. While evidence admitted generally is in the case for any legitimate purpose, evidence which is offered and admitted for a limited purpose cannot be used for another and totally different purpose Where, by express ruling, it is limited to one purpose, without exception, it cannot be used for another purpose.

3. The weight or value of opinion testimony as to handwriting depends largely upon the character of the witness and the opportunity he had of acquiring a knowledge of the handwriting in question, together with the cogency of the reasons for his opinion.

4. Public policy forbids that deeds and mortgages of real estate, duly authenticated in the mode pointed out by statute, should be set aside except upon clear and convincing proof that the certificate of acknowledgment is false. The presumption is in favor of the certificate, and the burden is upon the party alleging such a defense to prove it.

5. Where it is sought to cancel a deed for the want of mental capacity of the grantor to make the instrument, the burden of proof is on the one who alleges the mental incapacity.

6. To set aside a deed on the ground of want of mental capacity on the part of the grantor, it must be clearly established that the mind of the grantor was so weak or unbalanced at the time of the execution of the deed that he would not understand and comprehend the purport and effect of what he was then doing.

7. The fundamental principle is that the burden of proof in any cause rests upon the party who, as determined by the pleadings or the nature of the case, asserts the affirmative of an issue and remains there until the termination of the action.

8. The burden of proof means the duty resting on one party or the other to establish by a preponderance of the evidence an issue essential to his recovery. In this sense the burden of proof never shifts nor changes but remains from the first to the last where it is placed by the pleadings or the substantive law of the case.

9. The plaintiff may offer sufficient proof to make a prima facie case, or he may be aided by a presumption of law which, if nothing further appeared, would entitle him to a judgment, and when this happens the burden of evidence to meet this prima facie case devolves upon the adverse party.

10. The cases of Gibson v. Hammang, 63 Neb. 349, 88 N.W. 500; and Chamberlain v. Frank, 103 Neb. 442, 172 N.W. 354, are clarified and corrected.

11. The one attacking an instrument on the ground that its execution was procured by undue influence has the burden resting on him to establish that fact. However, the circumstances under which it was made, the condition of the grantor at the time and the injustice to him and his heirs, if it is upheld, may be such as to cast upon the grantee the burden of evidence to show that it is not tainted with undue influence but is the deliberate and bona fide act of the grantor.

12. In determining whether or not the plaintiffs have established sufficient facts and circumstances, considering the relationship of the parties, to raise a presumption of undue influence, and, if so, whether the defendants have rebutted it, the court will examine the transaction with care and closely scrutinize everything done by the donees to secure the deed in question.

[18 N.W.2d 647]


Thomas J. Dredla, of Crete, and T. R. P. Stocker, of Lincoln, for appellants.

Joseph Ach, of Friend, for appellees.


Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

WENKE, Justice.

Anton Kucaba, Jr., Barbara Meyers, Jennie McDonald, Josephine Koranek, Julia Swartz, Rose Baumruker, and the Cicero State Bank, conservator of the estate of Joseph W. Kucaba, incompetent, as plaintiffs, commenced this action in the district court for Saline county against Edward Kucaba, Frances Kucaba, his wife, Cecilia Topel, Alfred Topel, her husband, and Marie Werth, a widow, as defendants.

The purpose of the action is to vacate and set aside a deed from Anton Kucaba, Sr., and Josefa Kucaba, his wife, conveying 160 acres of land located in Saline county to the defendants, Edward Kucaba and Frances Kucaba. The grounds therefor are that the deed was obtained by undue influence, that both grantors were mentally incompetent at the time of their executing the deed and that the signatures attached to the deed are forgeries.

From a judgment for the defendants, Edward Kucaba and Frances Kucaba, sustaining the deed and dismissing the plaintiffs' action, the plaintiffs have appealed.

For the purpose of this appeal the appellants will be collectively referred to as plaintiffs; the appellees, Edward Kucaba and Frances Kucaba, as defendants; Anton Kucaba, also known as Anton Kucaba, Sr., and Josefa Kucaba individually as father or mother and collectively as the parents; otherwise, the parties will be referred to by their respective individual names.

The defendants, Marie Werth and Cecilia Topel, together with the latter's husband, Alfred Topel, were made parties defendant because they refused to join as parties plaintiff. They have no interest in the deed itself. Their only interest is

[18 N.W.2d 648]

through the estate of the father in case the deed in suit is set aside.

This being an appeal in an equity action the statute requires this court, in determining questions of fact, to reach an independent conclusion without reference to the findings of the district court. However, if there is an irreconcilable conflict therein on a material issue this court will, in determining the weight of the evidence of witnesses who appeared in court to testify, consider the fact that the trial court observed them and their manner of testifying.

The facts in cases of this kind are never completely the same. While many of the cases cited are helpful in determining the issues, because of their similarity, however, the ultimate decision in this case must necessarily be based on the facts thereof.

The parties to this action are all the children of Anton Kucaba and Josefa Kucaba. Seven are plaintiffs and three are defendants. All are competent, except a son, Joseph W., who has been declared an incompetent and appears by his conservator or guardian. Anton, Jr., is the oldest and Edward, who was born in 1902, is next to the youngest.

The parents were of Bohemian extraction. They lived most of their lives either in Chicago or Cicero, Illinois. The father was engaged in many different businesses, among them being that of a contractor, a coal yard operator and a dealer in real estate.

In the spring of 1917 the father sold his coal business and the family moved to Tobias, Nebraska, and lived there until the spring of 1920. They then moved back to Chicago and two years later to Cicero where the parents lived the remainder of their lives. The mother died on May 15, 1934, and the father on June 25, 1939.

Edward lived with his parents until December of 1925. At this time he married and left home. He was gone for about four and one-half years. He returned in 1930. At that time he was a divorcé. He then continued to live there until 1938. On June 11, 1932, he married the defendant, Frances Kucaba, and, at the parents' request, she came into the home very shortly thereafter. At this time the mother was failing in health, due to diabetes, and Frances took care of the home. She also took care of the mother until she died and the father until he was taken to the home of a daughter sometime in 1938.

On August 29, 1933, the parents, by means of the deed in question, purported to convey to Edward and Frances Kucaba the southwest quarter of section 32, township 6 north, range 1, east of the 6th P.M., in Saline county except for the right of way of the K. C. and Q. R. R. This deed was recorded in the records of Saline county on September 1, 1933. At the time the deed was executed the father was 75 and the mother 73 years of age.

On December 30, 1936, the probate court of Cook county, Illinois, adjudged the father to be incompetent and appointed a conservator or guardian of his estate. Anton, Jr., and Edward were appointed conservators. Subsequently, on May 27, 1937, the Chicago Trust Company of Chicago was appointed their successor and acted...

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