Rasmussen v. Tretbar, 38022

• Decision Date: 02 December 1950
• Docket Number: No. 38022,38022
• Citation: 170 Kan. 184,224 P.2d 1010
• Parties: RASMUSSEN v. TRETBAR.
• Court: Kansas Supreme Court

Page 1010

224 P.2d 1010

170 Kan. 184

RASMUSSEN v. TRETBAR.

No. 38022.

Supreme Court of Kansas.

Dec. 2, 1950.

Syllabus by the Court.

1. Alleged error in admission of evidence, or other trial error, can be reviewed on appeal only where the complaining party filed a motion for new trial which directed the trial court's attention to the alleged error.

2. A judgment of the trial court setting aside deeds to appellant and quieting title in appellee as against appellant--which judgment is not reviewable because no motion for new trial was filed--leaves appellant with no interest in the land which is the subject of the action and no standing on appeal to this court to question rulings of the trial court on questions of law.

Fred C. Littooy, of Hutchinson, argued the cause, and H. R. Branine and C. E. Chalfant, of Hutchinson, were with him on the brief, for the appellant.

Evart Garvin of St. John, argued the cause, and Robert Garvin and Morris Garvin, of St. John, were with him on the brief, for the appellee.

WERTZ, Justice.

This action, brought by Emma Rasmussen, widow, and revived in the name of her executor, involved four causes of action: (1) To set aside and cancel plaintiff's election to take under the will of her deceased husband; (2) for construction of the will of Niles J. Rasmussen, deceased husband of plaintiff; (3) to set aside two deeds to defendant, plaintiff's physician, as being null and void; and (4) to quiet title in plaintiff to described land involved. Defendant's demurrer was sustained to the first cause of action.

The second cause of action was for construction and interpretation of the will of Niles J. Rasmussen, deceased. Pertinent parts of the will are as follows:

'II. I give and bequeathe all the remainder of my property, personal, mixed or real to my beloved wife Emma Rasmussen, for her use or employ as she may desire, during her natural lifetime.

'III. After the death of my wife, Emma Rasmussen, I give and bequeathe all of the Real Estate and what ever remains of my other property, personal or mixed to The Aged Ministers Home, at Lakemont, New York, its successors and assigns forever, and Palmer College, or Albany, Missouri, and its successors and assigns forever, the two institutions to share equally, in the property, or the proceeds therefrom, share and share alike.'

Plaintiff for her third cause of action sought to cancel deeds obtained by defendant, Dr. F. W. Tretbar, on the ground the deeds were void as against public policy for the reason that plaintiff was a patient under the care of defendant as a physician at the time he received the deeds and the deeds were obtained without her knowledge or consent, that he concealed from her the fact he was attempting to acquire or had acquired title to the remainder interest in the property in which she had a life estate; that defendant failed to record his deeds for over five years in an attempt to conceal from his patient, then eighty-eight years of age and wholly dependent on him, the fact he had acquired title; and for other reasons set forth in the third cause of action.

The fourth cause of action was one to quiet title in plaintiff against defendant Tretbar, plaintiff alleging she was owner of the property in question and that defendant Tretbar claimed some right, estate and interest in the real estate and that same cast a cloud on plaintiff's title and asking that her title be quieted and that defendant Tretbar be forever barred and excluded from claiming any interest in and to said property.

Defendant filed his answer admitting the contents of the will and setting up the fact that Palmer College, a corporation named one of the remaindermen under the will, had been succeeded by Defiance College; that defendant is a duly licensed and practicing physician and surgeon in the city of Stafford, Kansas, and was the physician and family doctor of plaintiff, Emma Rasmussen who at all times since June 3, 1943, has been under his care and treatment; and further alleging that he is the legal and equitable owner of the real estate involved, subject only to the life estate of plaintiff by virtue of a corporation warranty deed dated June 3, 1943, wherein Defiance College, a corporation and successor in title to Palmer College of Albany, Missouri, was grantor and defendant was grantee; and that the warranty deed conveyed to him an undivided one-half interest in the real restate described in plaintiff's petition subject to a life estate in favor of plaintiff. Plaintiff filed a reply denying the allegations of the answer and alleging that the beneficiary named in Item III of the will, namely Palmer College of Albany, Missouri, was not in existence on March 27, 1930, the date of death of Niles J. Rasmussen, deceased; that said beneficiary is not now in existence and has not been in existence since the death of said testator; and that by reason of the aforesaid, the bequest made in said Item III of the will to Palmer College has lapsed and the remainder interest and estate has vested under the laws of descent and distribution in plaintiff Emma Rasmussen as widow and sole heir at law of the deceased.

On the issues joined, the case was tried by the court. Oral and documentary evidence was submitted on each of the plaintiff's causes of action. Counsel orally argued the cause and filed written briefs. The cause was taken under advisement until the fifteenth day of December, 1949, at which time the court found generally in favor of the plaintiff and ordered judgment construing the will favorably to plaintiff and further ordered:

'It is by the Court considered, ordered, adjudged and decreed that judgment be, an the same is, rendered in favor of the Plaintiff and against the Defendant generally on Plaintiff's second cause of action construing the provisions of Items II and III of the Last Will and Testament of Niles J. Rasmussen, deceased, as vesting in the Plaintiff, Emma Rasmussen, a life estate in all the real estate owned by the...