Osborne v. Kington

• Decision Date: 09 July 1938
• Docket Number: 33893.
• Parties: OSBORNE v. KINGTON et al.
• Court: Kansas Supreme Court

80 P.2d 1063

148 Kan. 314

OSBORNE v. KINGTON et al.

No. 33893.

Supreme Court of Kansas

July 9, 1938

Syllabus by the Court.

In heir's suit to set aside testatrix' deed on ground of mental incapacity and undue influence, testatrix' executor was neither a "necessary party" nor a "proper party." Gen.St.1935, 22-525, 22-727 22-801, 22-803, 60-412.

A cause of action to set aside a will, wherein the executor under the will was a necessary party, could not be joined with a cause of action to set aside a deed by testatrix, wherein the executor was neither a necessary nor proper party. Gen.St.1935, 60-601.

In action to cancel and set aside a will and deed of testatrix plaintiff could not assert that the will was void and at the same time claim an advantage under the will by maintaining that the executor violated his duty as executor in not bringing an action to set aside the deed, and that by reason of default he might be joined as a defendant in the cause of action to set aside the deed. Gen.St.1935, 60-601.

1. Under G.S.1935, 60-601, causes of action against several defendants may not be joined unless the causes of action affect all the defendants.

2. A cause of action to set aside a will in which the executor under the will is a necessary party may not be joined with a cause of action to set aside a deed wherein the executor under the will was neither a necessary nor proper party.

3. A party to an action may not assert an instrument is void and at the same time claim an advantage under it.

Appeal from District Court, Shawnee County, Division No. 1; George A. Kline, Judge.

Action by E. May Osborne against Bessie Kington, M. T. Kelsey, as executor of the last will and testament of Clara B. Mills deceased, and others to cancel and set aside a will and a deed. From a judgment sustaining the executor's demurrer to the petition on ground that several causes of action were improperly joined, the plaintiff appeals.

Frank G. Drenning, of Topeka, for appellant.

Lester M. Goodell, Randal C. Harvey, John P. Davis, and James W Porter, all of Topeka, for appellees.

ALLEN Justice.

The action was one to cancel and set aside a will and a deed. The executor under the will filed a demurrer to the third amended petition on the ground that several causes of action were improperly joined. The demurrer was sustained and plaintiff has appealed from that ruling.

On December 17, 1936, one Clara B. Mills, who was the owner of real and personal property, executed a will under which the defendant Bessie Kington was chief beneficiary. On February 13, 1937, Clara B. Mills executed a deed purporting to convey to the same Bessie Kington real estate in Topeka of the alleged value of $5,000. Clara B. Mills died April 15, 1937.

The action was brought by E. May Osborne, a sister and one of the heirs at law of Clara B. Mills. The defendants in the action are Bessie Kington, M. T. Kelsey executor of the will of Clara B. Mills, deceased, and other heirs of Clara B. Mills.

The first cause of action was to set aside the will on the ground of mental incapacity and undue influence. The second cause of action was to set aside the deed on similar grounds.

The demurrer to the petition was sustained by the trial court on the ground that several causes of action were improperly joined therein.

The will of Clara B. Mills provided:

"*** I devise that all my belongings both real and personal that I may possess be sold and the proceeds to pay my funeral expenses and buy a marker for my husband and myself to be bought of Wm. P. Supple not to exceed $125.00 after all bills are paid I bequeath to Mrs. E. May Osborne, 1/2 the rentals of property until sold all the remainder I bequeath to Bessie Kington, 108 Morris Topeka for her services in caring for me and I appoint Mrs. Kington and Mr. Kelsey to take care of my affairs. ***"

Our statute, G.S.1935, 60-601, provides that the plaintiff may unite several causes of action in the same petition, "But the causes of action so united must affect all the parties to the action, except in actions to enforce mortgages or other liens."

Manifestly, the executor under the will in the first cause of action is neither a necessary nor a proper party to the second cause of action to set aside the deed. The cause of action to set aside the deed does not affect the executor of the will in the first cause of action.

Confronted with this dilemma, plaintiff inserted in the second cause of action an allegation that the defendant Kelsey was the duly qualified and acting executor under the will "and as such executor, M. T. Kelsey has failed and refused to take any steps to recover any of the above described real property of Clara B. Mills for the benefit of said legatees."

Plaintiff then asserts that under G.S. 1935, 22-525 and 22-727, it was the duty of the executor to collect the assets and close the estate within one year. She contends that under the statutes G.S.1935, 22-801, 22-803, and our decisions (McGuire v Davis, 95 Kan. 486, 148 P. 755; Barker v. Battey, 62 Kan. 584, 64 P. 75, and Horton v. Jones, 110 Kan. 540, 204 P. 1001), it was the duty of the executor to bring an action to set aside the deed fraudulently procured from Mrs. Mills. Plaintiff further argues that since the executor failed and refused to bring the proper action to cancel the deed and...