Roberts v. Cooter, 41398

• Decision Date: 16 May 1959
• Docket Number: No. 41398,41398
• Citation: 184 Kan. 805,339 P.2d 362
• Parties: , 77 A.L.R.2d 1005 Lena May ROBERTS, Appellee, v. Grace B. COOTER and James R. Cooter, Appellants, Robert C. Mort and Harry Harrison, Defendants.
• Court: Kansas Supreme Court

Page 362

339 P.2d 362

184 Kan. 805, 77 A.L.R.2d 1005

Lena May ROBERTS, Appellee, v. Grace B. COOTER and James R. Cooter, Appellants Robert C. Mort and Harry Harrison, Defendants.

No. 41398.

Supreme Court of Kansas.

May 16, 1959.

Syllabus by the Court

1. In an action to set aside a contract in a will by a living testatrix on the ground of fraud, duress and coercion, all persons who are interested in the subject matter and whose interests will necessarily be affected by the judgment or decree rendered are proper parties.

2. Where an action is rightly brought in one county and personal service of summons is had on one of the proper parties in that county under G.S.1949, 60-509, summons may be issued to another county and service thereof made upon other defendants residing or found in such other county under G.S.1949, 60-2502.

3. An action such as described in the syllabus p1 is an equitable action and operates not in rem but wholly in personam. Such an action is transitory and not local, and the provisions of G.S.1957 Supp. 60-501 are not applicable.

4. In an action such as described in the syllabus p1, the record is examined and it is held: The trial court did not err in (1) refusing appellants' requested findings of fact and conclusions of law, (2) making its findings of fact and conclusions of law and (3) overruling appellants' motion to set aside those made by the court.

R. L. Hamilton, Beloit, argued the cause and was on the briefs for appellants.

Don W. Noah, Beloit, and Clarence Paulsen, Concordia, argued the cause and were on the briefs for appellee.

WERTZ, Justice.

This action was denominated and referred to in the court below as an action for a declaratory judgment. However, the pleadings do not meet the requirements of a suit for a declaratory judgment (City of Cherryvale v. Wilson, 153 Kan. 505, 112 P.2d 111). This was a simple equitable action brought in the district court of Cloud county by plaintiff, Lena May Roberts, a living testatrix, to set aside and cancel a contract in a will, i. e., a contractual will, on the ground of fraud, duress and coercion. The trial court made findings of fact and conclusions of law, and in accordance therewith rendered judgment for the plaintiff (appellee). Following the overruling of defendants (appellants) Grace B. and James R. Cooter's post-trial motions, they appeal. The defendants Robert C. Mort and Harry Harrison do not appeal.

Plaintiff is now a widow eighty-four years of age and has lived in Beloit, Mitchell county, for more than sixty-six years. Her husband, E. E. Roberts, died in 1955. They had one child, defendant Grace B Cooter. Grace had one child by her first marriage, defendant Robert C. Mort, and one child by her second marriage, defendant James R. Cooter. Defendant Harry Harrison was the executor named in the contractual will. At the time this action was commenced defendants Grace Cooter and Harry Harrison were residents of Mitchell county; James was a resident of Saline county, and Robert was a resident of Johnson county, Missouri. Service of summons was made upon the defendant Robert Mort in Cloud county (G.S.1949, 60-509), and upon the other defendants in their respective counties in accordance with G.S.1949, 60-2502.

Grace and James appeared specially in the Cloud county district court and filed a motion to quash the service of summons on the ground that the court was without jurisdiction of their persons or the subject matter of the action and that the venue was in Mitchell county. This motion was overruled, and numerous other motions, demurrers and answers, which need not be set out or summarized, were filed. Suffice it to say, issues were joined and the case proceeded to trial.

The pertinent facts are as follows: Plaintiff and her husband, now deceased, during their many years of marriage acquired extensive land holdings and other property in Mitchell county. They were estranged from their daughter, Grace, for several years prior to Mr. Roberts' death. Visits between them were rare, if any, and Grace had not been in plaintiff's home since the year 1951. In March, 1953, plaintiff and her husband had their family lawyer, William N. Tice, draft some deeds to convey some of their land to each of their grandsons, Robert Mort and James Cooter. Mr. Tice drafted three deeds, one to Robert Mort and two to James, reserving life estates in the grantors, which deeds were signed and acknowledged by plaintiff and her husband. These deeds, as drafted, were unsatisfactory to the Roberts and were kept in their possession. In December, 1953, the two deeds to James were returned by them to Mr. Tice to be used as a model in preparing new deeds, which were signed and acknowledged by the Roberts. The new deeds were put in their safety deposit box and were not delivered to anyone. The March, 1953 deeds to James, which were turned over to Mr. Tice in December, were to be returned to plaintiff and her husband, or destroyed. Plaintiff never saw them again.

Plaintiff testified that the March, 1953 deeds to James were never left with anyone for delivery to James or any other party; that the deed to Robert Mort was taken from the bank box by plaintiff and recorded July 17, 1954, without the consent of her husband. Plaintiff's husband died in 1955 and the estate was probated in the probate court of Mitchell county. The attorney for the administratrix of Mr. Roberts' estate was of the opinion that the March, 1953 deed to Robert Mort, which had been recorded without permission of decedent, was invalid for failure of delivery. At the attorney's request, Robert Mort quitclaimed to plaintiff the real estate described in the March, 1953 deed to get the land back in the Roberts' estate. The probate court found that the Robert Mort deed had never been delivered and that Robert Mort had made a reconveyance of the same to the plaintiff. The probate court further found that the real estate described in all of the aforementioned deeds had been held by decedent and plaintiff as joint tenants, and that plaintiff became the sole owner by survivorship.

Mr. Tice, who had prepared the March, 1953 deeds for the Roberts, died in 1955, and some two years later his widow found the March, 1953 deeds to James among his many papers. The administrator of the Tice estate advised Mrs. Tice to give the deeds to Mr. Hamilton, the attorney for that estate. She did so. Mr. Hamilton then informed defendant James Cooter he had the deeds and suggested that James place them on record. Mr. Hamilton gave these deeds to James' wife, who recorded them March 7, 1957.

Plaintiff testified she did not know of these happenings and when she read an article in the newspaper on the evening of March 7, wherein it was stated that she had conveyed the property to James, she was 'stunned and paralyzed.' (She had been operated on for cancer in July, 1956, but was able to be up and around on the evening in question.) 'She just knew she was in some trouble.' 'She thought the land described there was gone forever.' She telephoned attorney Orin C. Jordan, who had been employed by her as attorney for her husband's estate. He stated he knew nothing about the matter. She then called defendant James Cooter at his home in Salina and he informed her Mr. Hamilton had given him the deeds, that he [James] had recorded them and they would stay recorded. She then telephoned her daughter, Grace, who stated she knew little or nothing about the deeds except that they had been recorded by James' wife. A few minutes thereafter Grace came to plaintiff's home for the first time since the year 1951. Grace 'declared she didn't know anything about it, that it was all Jim's doings.' Grace stayed with plaintiff until ten o'clock that night. Plaintiff further testified that she never went to bed but walked the floor all night; that she thought everything she had was gone, that her income was gone.

The next morning, about eight o'clock, her daughter, Grace, came back to plaintiff's home and stayed until 11:30. Grace told her James and his wife were in Beloit. Grace returned again to plaintiff's home about 12:30 that afternoon and about one o'clock Mr. Jordan called to inquire if he could be of any help. Plaintiff stated she then asked him to try to get back the March, 1953 deeds from James. Jordan came to plaintiff's home shortly thereafter, at which time she told him James was in Beloit. Jordan told plaintiff to be at his office at 2:30 that afternoon. Grace took plaintiff to his office at that time. Plaintiff stated she did not remember the conversation with Grace during the interim because she was anxious to see if James would sign the deed conveying the land back to her. After she and Grace arrived at Jordan's office he and Grace telephoned James, who refused to come down to Jordan's office for a conference. James stated he would not sign any deed of reconveyance. Grace then suggested that if plaintiff would make a will as she [Grace] wanted it, she would get James (her son) to sign the deed reconveying to plaintiff the property described in the March, 1953 deeds.

The contractual will in question was then prepared in Jordan's office with Grace and the plaintiff present. It was signed by plaintiff and placed in a sealed envelope in Jordan's safe, where it remained until James signed the deed reconveying to plaintiff the property described in the March, 1953 deeds to James, thus removing the cloud on plaintiff's title. This deed recited that it was given for 'no cash consideration as this is a corrective deed.' (Emphasis supplied.) The envelope containing the mentioned will was placed in escrow at the First National Bank.

Plaintiff was given the deed from James and a carbon copy of the will. She placed the will in her safety deposit box and recorded the deed. She testified she did not remember the discussion giving rise to the execution of the will because she was so dizzy and sick. She did not remember that Jordan...