Rishel v. The County of McPherson

• Decision Date: 12 February 1927
• Docket Number: 27,128
• Citation: 253 P. 586,122 Kan. 741
• Parties: MINNIE RISHEL, Appellee, v. THE COUNTY OF MCPHERSON et al., Appellants
• Court: Kansas Supreme Court

253 P. 586

122 Kan. 741

MINNIE RISHEL, Appellee, v. THE COUNTY OF MCPHERSON et al., Appellants

No. 27,128

Supreme Court of Kansas

February 12, 1927

Decided January, 1927.

Appeal from McPherson district court; WILLIAM G. FAIRCHILD, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. WILLS--Testamentary Capacity--Undue Influence and Fraud--Sufficiency of Evidence. The proceedings considered in an action by an heir of a decedent to recover from a devisee property devised by decedent's will, and held, findings of fact that the testator lacked testamentary capacity and the will was procured by undue influence and fraud, were unsupported by evidence.

2. SAME--Action Contesting Probated Will -- Limitations -- Conclusiveness of Probate. When the will was probated and when the action was commenced, the statute of wills provided an action to contest a will might be commenced within two years after probate. The action was not commenced within that period. Held, the order probating the will was conclusive with respect to validity of the will, as against charges of lack of testamentary capacity, undue influence, and fraud.

3. SAME--Action Contesting Probated Will--Fraud--Limitations. The general statute of limitations does not apply to an action to contest a will, and a contest on the ground of fraud must be commenced within the time limited by the statute of wills, without reference to time of discovery of fraud.

4. SAME--Will Procured by Fraud--Nature of Heir's Remedy. The action was an ordinary action by an heir to recover property, on the ground a will which cut her off, if valid was procured by fraud. Held, her remedy was by action to contest the will, and not to establish a constructive trust.

5. SAME--Grounds for Contesting Will--Incapacity of Taker--Void Charity. The will devised property to a county as trustee for a public charity. Held, incapacity of the county to take and to act as trustee, and invalidity of the charity, were grounds for contesting the will, and could not be urged to defeat the will after lapse of the period allowed for contest.

6. COUNTIES--Power to Hold Property in Trust for Charity. A county may take and hold property as trustee for charitable uses, and may administer the trust.

7. WILLS--Construction--Public Charity. The will interpreted, and held, the beneficiaries of the trust are poor persons afflicted with tuberculosis, and the gift was a gift to public charity.

G. Nyquist, county attorney, and G. F. Grattan, of McPherson, for the appellants.

Alexander S. Hendry, of McPherson, W. V. Hoagland and Edward E. Carr, both of North Platte, Neb., for the appellee.

OPINION

BURCH, J.:

The action was one to recover real and personal property from a devisee, by a person claiming under an oral contract with the devisor whose will had been duly probated. The petition was amended to base the claim on a written contract. There was no foundation for either claim. Plaintiff was an heir of the testator, and claimed the property on the ground the testator lacked mental capacity to make a will, and on the ground the will was induced by fraud and undue influence practiced on the testator. The court found the facts according to plaintiff's contention, but held action on those grounds was barred for failure to contest the will within the statutory period. The will gave the testator's property to McPherson county for charitable purposes. The court held the will was void for those purposes, and awarded the property to plaintiff. The county appeals, and plaintiff notes a cross appeal from the ruling based on her failure to contest the will.

On October 2, 1921, Oren G. Bigford died of pulmonary tuberculosis at the county hospital in McPherson county. He was about seventy-two years old. He left a will disposing of a farm of eighty acres in Marion county, two city lots in Carlton, Dickinson county, and some money and personal property. His heirs were the plaintiff, Minnie Rishel, and her brothers and sisters, who were children of the testator's deceased sister. Plaintiff lived in North Platte, Neb., was forty-one years old, and so far as the abstract discloses never saw the testator. She kept up a desultory correspondence with her uncle, and sent him small presents on his birthdays, at Christmas time, and on other infrequent occasions. Previous to November, 1920, the testator, who was a bachelor, lived alone on his farm. Advancing years, impaired eyesight, and the disease of which he died, made it difficult for him to care for himself. In October, 1920, the probate court of Marion county directed the county health officer to investigate his condition and make a report. At whose instigation this was done does not appear. On October 13, the county health officer reported that Mr. Bigford was not feeble-minded or mentally deficient, but was physically undernourished, weak, and infirm, was suffering from hardening of the vitreous humor, which in time would cause total blindness, and for those reasons he was unable to take care of himself. Tuberculosis of long duration was not mentioned. On October 15 the county health officer filed a complaint for appointment of a guardian of Mr. Bigford's person and property. Suspecting that control of his property was the chief motive for the proceeding in his interest, Mr. Bigford went to McPherson county, and made his home with Burt Hodges from November 11, 1920, to June, 1921. While there he told Mr. Hodges he wanted his niece (the plaintiff) to have his property when he was through with it, and asked Mr. Hodges to use his influence to see that she got it. Mr. Hodges asked for some writing that he might show or that she might show for it. Mr. Bigford replied he would put nothing in writing, because that would put it in court, and he did not want his property to go through court in any way. His reason for preferring his niece was, she was a daughter of a favorite sister, and had written to him since she was old enough to do so.

In the course of some work preliminary to the holding of a tuberculosis clinic in McPherson, two nurses, one an itinerant nurse of the Kansas State Tuberculosis Association, and the other a Red Cross nurse, discovered Mr. Bigford's condition, and reported the facts to Dr. C. R. Lytle, who was county health officer of McPherson county. Doctor Lytle investigated the case, and in the course of his visits at the Hodges home, learned of the solicitude in Marion county for Mr. Bigford's welfare and property. According to Doctor Lytle, and there is no other evidence on the subject, Mr. Bigford expressed a desire for care which would not be mercenary. Doctor Lytle suggested that Mr. Bigford place his property at the disposal of the county officials, to be used for his comfort during the short time he had to live, and at his death to be used for erecting a sanitarium for unfortunates suffering from the disease with which he was afflicted. Doctor Lytle took Mr. Bigford to the county hospital, and later took the county attorney to see him. Mr. Bigford expressed a desire to dispose of his property as Doctor Lytle had suggested, and the county attorney made the following written recommendation to the board of county commissioners:

"I hereby submit for your consideration a proposition secured by C. R. Lytle from Oren G. Bigford, a citizen of McPherson county, with his will, leaving all of his property to the county of McPherson for the establishment of a tuberculosis sanitarium at McPherson. Mr. Bigford has been taken in charge by Doctor Lytle as a tuberculosis patient, and it is his proposition that he shall be taken care of and maintained by this county during his lifetime, and at his death all his property go to the county for the purpose named. Mr. Bigford has no relatives to leave his property to, and is willing to have his property devoted to this purpose. Doctor Lytle believes that with this property and the funds to be derived from it that he can secure state aid for the location of a tuberculosis sanitarium at McPherson, and to assist in this I advise and recommend that the proposition be accepted."

The county commissioners were apathetic, and did not accept the proposal. They desired compensation for care of Mr. Bigford during his lifetime. Afterwards Mr. Bigford executed deeds of his real estate to McPherson county, and the will was redrafted. In its final form, the will read as follows:

"I Oren G. Bigford, a resident of McPherson county, Kansas, being of sound mind and memory, do hereby make and publish this my last will and testament, that is to say: First, I desire that all my lawful debts of every kind and nature whatsoever shall be paid, also, the expenses of my last sickness, my funeral expenses and the costs of administration shall be first paid. In recognition of the consideration and attention given me by the American Red Cross at McPherson, because of my afflicted condition and sickness, they being the promoting and moving cause in making arrangements for my remaining days on earth more certain for better maintenance, for medical care and treatment such as is necessary for one in my condition, and further to provide a means whereby others afflicted as I am, but in a more unfortunate situation, may be afforded assistance and relief, I do hereby give, devise and bequeath to the county of McPherson, Kansas, all my real estate and personal property, the real estate being the west half of the southwest quarter of section 4, in township 17, range 1 east of the 6th P. M., Marion county, Kansas; also lots 19 and 21 in block 7 in the town of Carlton, Dickinson county, Kansas, to be conveyed to the county of McPherson, Kansas, in fee simple, reserving to myself during my lifetime all rents, profits, and the income...