The Fourth National Bank In Wichita v. Diver

• Decision Date: 05 July 1930
• Docket Number: 29,361
• Citation: 289 P. 446,131 Kan. 113
• Parties: THE FOURTH NATIONAL BANK IN WICHITA, as Executor and as Trustee of the Last Will and Testament and of the Estate of M. R. Diver, Deceased, Appellee, v. IDA DIVER, Appellant
• Court: Kansas Supreme Court

289 P. 446

131 Kan. 113

THE FOURTH NATIONAL BANK IN WICHITA, as Executor and as Trustee of the Last Will and Testament and of the Estate of M. R. Diver, Deceased, Appellee, v. IDA DIVER, Appellant

No. 29,361

Supreme Court of Kansas

July 5, 1930

Decided July, 1930.

Appeal from Sedgwick district court, division No. 4; ISAAC N WILLIAMS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INCOMPETENT PERSONS--Marriage--Right of Guardian to Set Aside. Where after a jury in the probate court has decided a person is feeble-minded and he subsequently enters into a marriage, his guardian may properly bring an action to set aside such marriage because it affects his property rights and the guardian has the duty to properly care for and conserve the estate of his ward.

2. ABATEMENT AND REVIVAL--Revivor in Name of Administrator on Death of Ward. Where such an action has been instituted by a guardian, and while it is pending the ward dies, the action may be revived in the name of the executor and trustee of the last will and testament of the deceased.

3. INCOMPETENT PERSONS -- Conclusiveness of Adjudication of Insanity -- Presumption of Continuing Condition. A verdict finding a person feeble-minded is conclusive evidence of the fact that the person is feeble-minded on the date the verdict is rendered. In a case such as the one at bar, evidence of the actual condition of mind at any particular subsequent time was properly admitted. In the absence of evidence to the contrary, the presumption is that the state of mind found by the jury continues the same as on the date the adjudication was made.

4. SAME--Evidence. The complaint of appellant that a finding of the court was based upon the observation of the court made from his personal experience while serving as a trial judge in a prior action is examined and it is held that there was ample evidence in the instant case upon which the court could base the finding of which complaint is made.

5. SAME--Marriage--Ratification During Lucid Interval. An objection urged by appellant that the trial court refused to make a finding upon the question of whether or not subsequent to the time of the marriage the feeble-minded person had lucid intervals and ratified and confirmed the marriage is examined, and it is held that one of the findings made by the court covers the issue upon which appellant demanded a special finding.

6. SAME--Generally. Other specifications of error examined and held to be without merit.

George McGill, H. C. Castor, Jean Madalene and W. A. Blake, all of Wichita, for the appellant.

V. Harris, M. P. Shearer, Charles G. Yankey, John L. Gleason, Kenneth K. Cox and M. H. Cundiff, all of Wichita, for the appellee.

T. C. Wilson and Henry Lampl, both of Wichita, as amici curiae.

OPINION

JOCHEMS, J.:

This was an action brought by the guardian of a feeble-minded person to set aside and declare invalid a marriage entered into between his ward and the appellant. After the death of the ward the action was revived in the name of the executor and trustee of the last will of the ward. Plaintiff prevailed, and the defendant appeals.

On December 24, 1928, H. D. Lester, as guardian, filed this action, pleading that he had been duly appointed as guardian of the person and estate of M. R. Diver, a feeble-minded person, and was so duly appointed on December 21, 1928. Diver died on February 16, 1929, and thereafter the Fourth National Bank of Wichita came into court, after having been appointed as executor and trustee of the last will and testament of M. R. Diver, deceased, and filed a motion to revive the action. Order of revivor was made, and thereafter the plaintiff Fourth National Bank filed an amended and supplemental petition. It alleged that on December 19, 1928, a jury in the probate court had found M. R. Diver was a feeble-minded person, incapable of managing his affairs, and that it was necessary that a guardian be appointed for his person and estate; that thereafter, on December 21, 1928, the probate court did appoint H. D. Lester as guardian; that on December 20, 1928, Diver was a very old and decrepit man of about eighty-nine years of age, was mentally and physically incapable of attending to his personal and business transactions or the managing of his affairs, and was incapable of making or entering into a marriage contract or any kind of contract whatsoever; that he was easily influenced and misled and imposed upon by persons inclined so to do. Further, that after the adjudication in the probate court an appeal was taken to the district court of Sedgwick county and trial was there had upon the appeal on February 8, 1929. The jury that heard the evidence upon the appeal returned a verdict in the district court finding M. R. Diver to be a feeble-minded person, incapable of managing his affairs, and that it was necessary that a guardian be appointed for his person and estate. Plaintiff alleged that on February 16, 1929, the district court found and adjudged that the said M. R. Diver was a feeble-minded person, incapable of managing his affairs, and that it was necessary that a guardian be appointed for his person and estate; that from and after December 19, 1928, Diver never regained his mental faculties and was treated as a feeble-minded person incapable of attending to his personal or business matters.

The petition further alleged that the defendant at all times knew of the action in the probate court and of the feeble condition of mind of Diver and of his incapacity to transact business or enter into a marriage contract, and that on December 20, 1928, she well knew that on December 19, 1928, he had been found by a jury in the probate court to be a feeble-minded person, incapable of managing his affairs and that it was necessary that a guardian be appointed for him; that defendant, notwithstanding she knew all the facts, did on December 20, 1928, fraudulently, wrongfully and secretly, and without the consent of Diver, spirit him away from the city of Wichita to Hutchinson (which is a distance of approximately sixty miles from Wichita), and on that date she fraudulently, wrongfully and unlawfully prevailed upon and induced M. R. Diver to go through the form of a pretended marriage with the defendant in the city of Hutchinson; that at the time of the marriage Diver was a feeble-minded person, incapable of entering into a marriage contract and incompetent to comprehend the nature or effect thereof; that he was incompetent to comprehend the contract binding his property or person; that the defendant ever since December 20, 1928, has affirmed and continues to affirm that she is the lawful wife of Diver and claims and asserts that as his widow she is entitled to one-half of his estate; that all of such claims are false and are made for the purpose of injuring Diver in his property rights and of creating rights in the property of Diver which passed to the executor and trustee under his will; that defendant contrived to have the marriage performed in fraud of the rights of the property of Diver and in fraud of plaintiff's rights in the estate as executor and trustee under the will.

Motion to strike and demurrer were filed and both were overruled by the court.

Defendant then answered, admitting the marriage, but specifically denying everything else in the petition. She pleaded the will had been revoked prior to the appointment of a guardian; that plaintiff had no authority to act thereunder; that she was the sole heir of M. R. Diver, and further alleged that if Diver was feeble-minded and did not have capacity to transact business on December 19, 1928, that subsequent thereto, and on December 20, 1928, he was in possession of his mental faculties and that on the latter date he requested that defendant marry him and she consented; that at all times subsequent to the marriage and up to his death she and Diver lived together as husband and wife and cohabited as such; that after December 20, 1928, Diver continuously held the defendant out as his wife; that he stated to defendant that they were in fact husband and wife; that she agreed to that statement and put it into effect by cohabiting with him; that at all times while thus living together the defendant was held out by Diver as his wife and introduced as such and she so considers herself; that when Diver requested her to become his wife he fully understood the nature of the obligation mutually assumed.

Upon the issues set forth in the proceedings as above outlined the case was tried to the court. Many witnesses, both lay and medical, were brought before the court by both sides and a voluminous mass of testimony was introduced. In addition to the oral testimony of witnesses given before the court upon the hearing of this case many exhibits were introduced in evidence. The verdict rendered by the jury in the probate court adjudging M. R. Diver to be feeble-minded and a similar verdict rendered at the trial on the appeal from the probate court to the district court were both introduced in evidence. A transcript of the testimony given by Diver at the hearing in the probate court and a transcript of the testimony given by him at the trial on appeal to the district court were both introduced in full upon the trial of this case. The jurors who heard the trial in the probate court and those who heard the appeal testified in this action. At the conclusion of the hearing of evidence both sides filed suggested findings of fact which they requested the court to make. The court made findings of fact and conclusions of law, which are as follows:

FINDINGS OF FACT.

"1 M. R. Diver, who died on the 16th day of February, 1929, was past eighty-nine years of age. He had come to Wichita in an early day and had been...