The Bethany Hospital Company v. Philippi

• Decision Date: 12 March 1910
• Docket Number: 16,386
• Citation: 107 P. 530,82 Kan. 64
• Parties: THE BETHANY HOSPITAL COMPANY, Appellee, v. NELLE K. HUBBARD PHILIPPI, Appellant
• Court: Kansas Supreme Court

107 P. 530

82 Kan. 64

THE BETHANY HOSPITAL COMPANY, Appellee, v. NELLE K. HUBBARD PHILIPPI, Appellant

No. 16,386

Supreme Court of Kansas

March 12, 1910

Decided January, 1910.

Appeal from Allen district court; OSCAR FOUST, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. JURY TRIAL -- Action by Devisee to Cancel Deed -- Insane Grantor -- Fraud. An action by a devisee under a will conceded to be valid to cancel and set aside a deed which the maker of the will was fraudulently procured to execute when he was of unsound mind is equitable in character, and therefore neither party is entitled to a jury trial of the same as a matter of right.

2. EQUITABLE PROCEEDING -- Special Findings by a Jury -- Independent Consideration of Testimony by Trial Court. The trial court, having called a jury to answer special questions of fact, was at liberty either to adopt the answers returned by the jury or to ignore them and make findings of its own, based upon an independent consideration of the testimony.

3. ACCRUAL OF ACTION -- Amended and Supplemental Petition Filed after Action Accrued. Where the devisee of the will brought the action before the will was probated, and later, when it was probated, filed an amended and supplemental petition, on which the cause of action was tried, the objection that the action was prematurely brought became immaterial.

4. DEEDS -- Insane Persons -- Notice -- Consideration -- Cancellation -- Disaffirmance -- Parties. A deed executed by an insane person to one who has knowledge of the mental incapacity of the grantor and who gives no substantial consideration for the property is an absolute nullity. It does not operate to revoke a valid will previously made by the grantor, and a devisee under the will has sufficient interest to justify him in maintaining an action against the grantee to declare the deed to be void, although there has been no prior disaffirmance of the deed or a tender back of the nominal consideration paid by the grantee.

5. PLEADINGS -- Joinder of Causes of Action. A petition alleging that the deed was void because of the mental weakness of the grantor and the undue influence exercised upon him while in that condition, and asking to have the deed adjudged to be void, states only a single cause of action.

6. INSANE PERSONS -- Finding Supported by Evidence. The testimony examined and held to be sufficient to uphold the finding of the trial court that the grantor was without mental capacity to execute the deed in question.

W Littlefield, F. M. Harris, W. J. Costigan, W. H. Clark, and Campbell & Goshorn, for the appellant.

Nelson Case, Wilbur S. Jenks, and L. W. Keplinger, for the appellee; Ewing, Gard & Gard, of counsel.

JOHNSTON, C. J. BENSON, J., not sitting.

OPINION

JOHNSTON, C. J.:

This action was brought by the Bethany Hospital Company, to which certain property was devised by the will of Samuel B. Rohrbaugh, to declare a deed to be void and to enjoin the conveyance or encumbrance of the property by the defendant, Nelle K. Hubbard Philippi, who claimed the property under a deed alleged to be absolutely void and to have been fraudulently obtained. It appears that in March, 1903, Samuel B. Rohrbaugh executed a will which, among other devises, gave the hospital company property in the city of Ottawa known as the "Boston store building," worth about $ 25,000, and it is conceded that the testator was of sound and disposing mind when the will was made. On February 22, 1907, about two months before Rohrbaugh died, he signed a deed which purported to convey the property in question to Nelle K. Hubbard Philippi. This conveyance is attacked by the hospital company on the ground that Rohrbaugh was of unsound mind at the time it was made, and, further, that defendant and others interested took advantage of the grantor's enfeebled mental condition and by undue influence obtained the execution of the deed. It appears that Rohrbaugh had been successfully engaged in the lumber business in Ottawa for about forty years and until his death, in 1907. During that time he had acquired property worth about $ 150,000. In the last years of his life the active charge and detailed work of the business, including the payment of bills, the collection of accounts and the signing of checks and contracts, was attended to by Charles H. Constant, who had a partnership interest in the lumber business. Since 1905, however, Samuel R. Hubbard, a nephew of Rohrbaugh and a brother of defendant, who also had an interest, assisted to some extent in the management of the business. In 1882 Rohrbaugh's wife died, when their son was four years old, and the boy made his home with Mrs. Hubbard, a sister of Mrs. Rohrbaugh, until his death about sixteen years later. Rohrbaugh boarded with the Hubbard family most of the time after the death of his wife, and it appears that he was greatly attached to Nelle K. Hubbard, generously contributing toward her education, and was greatly pleased with her progress. In the will mentioned Rohrbaugh gave defendant and the several members of the Hubbard family a number of pieces of real property, which together were worth approximately $ 55,000, and also considerable personal property. It appeared, too, that he was a member of the Methodist church, to which he had given liberally of his means, and he had made provisions for it and other Methodist institutions in his will.

There is evidence tending to show that early in 1906 Rohrbaugh, then being about seventy-six years of age, and affected with rheumatism and other ailments, became weak of body and feeble of mind, and that his mental degeneration gradually increased until his death. On February 20, 1907, a proceeding to inquire into his mental condition and for the appointment of a guardian to take care of him and his estate was begun on the application of some of his neighbors who were members of his church. According to much of the testimony he did not comprehend the nature of the proceeding and seemed to understand that he was under arrest, and was therefore very much angered at those who instituted it and greatly agitated because of it. A hearing of the application was had on February 26, 1907, but the jury failed to agree. While the proceeding was pending, and while Rohrbaugh was surrounded by the Hubbards and witnesses chosen by them and their attorney, he signed deeds prepared for him which on their faces conveyed to defendant and other members of the Hubbard family nearly his entire estate, for a nominal consideration and his love and affection for the grantees. Shortly after the execution of the deeds and the hearing mentioned Mrs. Hubbard took him to Excelsior Springs, and there he rapidly grew weaker, and died on April 15, 1907.

Before the will had been offered for probate, and on April 24, 1907, this action was begun. The will was probated on April 29, 1907, and on May 3, 1907, an amended and supplemental petition was filed setting forth a copy of the will and the probate of the same, and under it the case was tried. The defendant answered setting up her deed from Rohrbaugh, and asking that her title be quieted as against the plaintiff and that it be barred from claiming any interest or estate in the property. The defendant demanded a jury trial as a matter of right, which was denied. Some special questions, however, were submitted to a jury to aid the court; but that jury failed to agree and another was called, to which issues of fact were referred, but the answers returned, which in the main were favorable to defendant, were not adopted by the court. Upon independent consideration of the evidence the court made findings of its own.

Although demanded by the appellant she was not entitled to a jury trial. The action was equitable in its nature, brought to declare a deed void and to remove a cloud upon the title which it is claimed passed to appellee under the provisions of the will. In connection with this relief, an injunction against transferring or encumbering the property by the grantee in the deed was asked. The appellant in her answer recognized the equitable character of the proceeding and asked to have her title quieted as against the claim of appellee. In such a case a jury may be called to answer special questions submitted to it, but the answers of the jury are not binding on the court. It may ignore them and upon independent considerations make findings of its own, as the trial court did in this instance. (Medill v. Snyder, 61 Kan. 15, 58 P. 962.)

There is a contention, however, that appellee did not have such an interest in the property as warranted it in maintaining an action against appellant. It is first argued that the will was not probated when the original petition was filed, but this is accounted for in the averments of the pleading. The question is not a practical one, as the amended and supplemental petition was filed after the will had been probated; and, besides, the due execution of the will was not in controversy. The probating of the will furnishes evidence of an effective gift and the transfer of title, and the will when probated takes effect by relation from the time of the testator's death. It is earnestly argued that the deed, being valid on its face and at most only voidable, operated to revoke the will; that if a fraud was committed on Rohrbaugh he was the only party who could complain, and that one subsequently acquiring an interest in the property can not set up the fraud of appellant in obtaining the conveyance. Rohrbaugh, it is said, was at liberty to forgive the wrong, and in any event his right to contest the validity of the deed was incapable of transfer to anyone. It is further contended that there was no disaffirmance by Rohrbaugh, or anyone in his behalf,...