Sullivan v. Kenney

• Decision Date: 10 May 1910
• Citation: 148 Iowa 361,126 N.W. 349
• Parties: SULLIVAN ET AL. v. KENNEY ET AL.
• Court: Iowa Supreme Court

148 Iowa 361

126 N.W. 349

SULLIVAN ET AL.

v.KENNEY ET AL.

Supreme Court of Iowa.

May 10, 1910.

Appeal from District Court, Jasper County; Byron W. Preston, Judge.

Three proceedings instituted in the district court of Jasper county were consolidated and tried as one in the lower court. One was originally an action in equity brought by plaintiff against the defendants to set aside deeds to quiet title to the land conveyed thereby, for partition, an accounting, and other equitable relief. Another was an action at law brought by Hugh S. Sullivan, as administrator of the estate of John Sullivan, to recover from defendants something more than $7,600, which it is claimed defendant fraudulently procured from the intestate before his death. Another was a proceeding instituted by petition filed by defendant Kittie Kenney for the probate of the will of John Sullivan, based upon the original probate thereof in the state of California. Objections were filed by plaintiffs to the probate of this will. After issues joined in each of these cases a stipulation was entered into, whereby they were tried to the court at the same time and upon the same testimony, so far as applicable. Upon trial to the court the objections to the probate of the will were sustained, and judgments and decrees were entered for the plaintiffs in the other two cases substantially as prayed in the petitions. Defendants Kenney and Kenney appeal. Affirmed.Clark & Hutchinson, McClain & Campbell, and Clements & Arnold, for appellants.

E. J. Salmon, E. M. S. McLaughlin, and A. H. Brous, for appellees.

DEEMER, C. J.

John Sullivan died in Ontario, Cal., October 3, 1907, at the age of 80 years. He was the father of three children, to wit, Hugh Sullivan, plaintiff, a son, Kittie Kenney, defendant, a daughter, and a daughter deceased at the time of his death, who left surviving two minor children, Daisie V. and John M. Orton, plaintiffs herein. Defendant E. N. Kenney is the husband of Kittie Kenney. For many years prior to his death, if not at the time thereof, John Sullivan had been a resident of Jasper county, in this state. By habits of industry and thrift he became the owner of 572 acres of land in this county, most of which was purchased during the years 1866 and 1867. Some five or six years prior to his death he purchased an orange ranch in the state of California. In January of the year 1906 Sullivan was stricken with a severe illness, which lasted several months, and from which he never entirely recovered. At that time defendants were living in California, and, being advised of the father's sickness, Mrs. Kenney came to Iowa in the month of April of that year, and remained something like three weeks, when she returned to California. She again returned to Iowa in September of that year; her husband accompanying her on this trip. At this time John Sullivan was residing with his son Hugh on 160 acres of land near Prairie City, in Jasper county, which was called the home farm. At that time the most friendly and kindly relations existed between the parties who are engaged in this controversy, and, so far as known, between John Sullivan and all of his relatives. On October 25, 1906, John Sullivan executed a warranty deed to his daughter, Kittie Kenney, of the orange ranch in California; the deed reciting a consideration of $15,000, although as a matter of fact nothing was paid. On October 22, 1906, the defendants and John Sullivan appeared at a bank in Prairie City, and Mrs. Kenney told the cashier that her father wished to deposit $7,000 to the credit of herself and husband. Six $1,000 bills and two checks of $500 each were then taken from the pocket of John Sullivan, delivered to the banker, and $7,000 placed upon the books of the bank to the credit of the defendants. Several days thereafter Hugh Sullivan, plaintiff, learned of the transaction at the bank, and he immediately filed a petition for the appointment of a guardian of his father, who he claimed was then of unsound mind. Hugh was thereupon appointed temporary guardian of his father and of his property. Notice of the application was then served upon John Sullivan. As soon as the notice was served, defendant Kittie Kenney informed her brother Hugh that the father would not return to Hugh's home, and she thereupon took her father to a private boarding house in Prairie City, and kept him there for four or five weeks. He was then taken to a farm where he lived for a few weeks, and until just before the time set for the hearing of the guardianship proceedings, when he was taken to a boarding house in the city of Newton. Negotiations were entered into between the parties for the settlement and dismissal of the guardianship proceedings, and it is claimed that at the urgent solicitation of the defendants and upon their promise to return all the money and property which they had received from John Sullivan, and to take him back to Hugh's home, the guardianship proceedings were dismissed. Within a very short time after the dismissal of these proceedings John Sullivan, in consideration of mutual love and affection, made a deed to defendant Kittie Kenney for the 572 acres of land in Jasper county. This deed was executed December 8, 1906, but was not filed for record until the 24th. It is claimed that, as soon as this deed was executed, Kittie Kenney and her husband surreptitiously took the old man from the Ellers' boarding house to the private home of one R. C. Daly in Newton, kept him there over night, and stealthily took an early train the next morning for California, taking John Sullivan with them, and keeping him there in close custody until his death. Within a day or two after the recording of this deed, Hugh Sullivan's attorney discovered the fact, and at once reported the matter to Hugh, and thereupon another action was instituted in the Jasper county district court for the appointment of a guardian for the person and property of John Sullivan. Petition being filed, Hugh Sullivan was appointed temporary guardian and duly qualified as such. He was also authorized as such guardian to institute the necessary proceedings to recover the property which testator had deeded and transferred to defendants. He almost immediately brought the first action named in the statement of this case to set aside the conveyance of the Jasper county land. Notice of the guardianship proceedings was personally served upon John Sullivan in the state of California, and of the other action upon the defendants in the same state. These two actions were continued or postponed for one reason or another, generally upon defendants' motion until the death of John Sullivan. Hugh had no notice of his father's death until informed by some stranger that the body was enroute from California to Prairie City for burial. He thereupon assisted in arranging for the funeral, and, after the interment, he was appointed administrator of the father's estate by the district court of Jasper county, and on October 10th brought action in the same county against the defendants for the money which it is claimed was fraudulently procured by defendants from the father before his death. In each of these actions it was claimed that John Sullivan was unsound of mind and incapable of making deeds or transferring his property, and that the deeds and transfers hitherto mentioned were obtained by the defendants through fraud and undue influence practiced by them upon the deceased, and they asked that the deeds and transfers be set aside, that judgment be rendered for the amount of personal property received by defendants from the deceased, that partition be had of all the real estate whether in this state or in California, that defendants make an accounting of the rents and profits of all the real estate, and for general equitable relief. And the administrator in his action asked to recover all the money and personal property turned over to the defendants or either of them by the deceased during his lifetime.

Defendants denied the alleged mental incapacity of Sullivan, and also specifically denied all fraud and undue influence. Pending the hearing of these actions Kittie Kenney, as proponent, filed in the district court of Jasper county a petition for the admission to probate in said court of an alleged foreign will of John Sullivan, bearing date July 10, 1907, which it is claimed was duly admitted to probate by the proper court of California. This application was made under section 3294 of the Code. Plaintiffs herein filed objections to the probate thereof, and these objections were sustained and exception taken. Leave was given to proponent to amend. This she did, and plaintiffs again filed objections and motion to strike. In this situation the parties filed the following stipulation: “It is hereby stipulated that cases Nos. 99 and 7,380 be, and they are, consolidated with this action, to be tried at the same time and upon the same evidence, so far as material; and it is agreed that the same were thus tried to the court.”

It is contended that from the time of John Sullivan's sickness in January, 1906, down to the time of his death, he was unsound of mind and mentally incapable of doing any business; that the transfers of money and property made by him to defendants were fraudulent both in fact and in law, and that they were compassed and brought about by and through the fraud and undue influence of the defendants; that defendants then had charge of John Sullivan, who was weak of mind and body, and susceptible to their influence; that they gained his confidence, and were in such relations to him that they could not take conveyances or transfers from him except upon a showing of good faith and fair dealing. It is also claimed that John Sullivan did not go to California of his own volition; that he never changed his residence, but was always domiciled in Jasper county; that he was taken in an almost helpless condition and surreptitiously by defenda...