Appeal from Circuit Court, Cass County; Leslie A. Bruce, Judge.
Suit by W. W. Wass and others against Kate Hammontree and others. From a judgment for defendants after demurrer to the amended petition was sustained, plaintiffs appeal.
Affirmed.
T. H. Brain, of Kansas City, and T. N. Haynes, of Harrisonville, for appellants.
L. M. Crouch and L. M. Crouch, Jr., both of Harrisonville, for respondents.
STURGIS, Commissioner.
In this case the trial court sustained a demurrer to plaintiffs' amended petition, the plaintiffs refused to plead further, and judgment went for defendants, from which plaintiffs have appealed. The only question here is the sufficiency of the amended petition to state a cause of action.
The suit concerns the property of Mary M. Berry, who was dead at the time this action was commenced. The petition alleges that the three plaintiffs are the children and sole heirs of Cora Wass, deceased, a daughter of Mary M. Berry, who predeceased her mother; that Mary M. Berry, deceased, left surviving her as her sole heirs a daughter, the defendant Kate Hammontree, and these plaintiffs, her grandchildren, children of the deceased daughter, Cora Wass. Plaintiffs claim they are entitled to one-half the estate left by Mary M. Berry and the defendant Kate Hammontree is entitled to the other half under our statutes of descent and distribution. The petition then states (italics ours):
"Plaintiffs further state that in her lifetime the said Mary M. Berry was the owner and in possession of property, real, personal and mixed, of the value of $20,000.00, and that so far as plaintiffs have knowledge or information and so far as they can obtain information at the time of filing this petition, the said property consists of some interest in certain lots located in or near the City of Los Angeles and State of California, a more definite description of which plaintiffs are unable to give, and certain promissory notes, the descriptions, amounts and dates thereof plaintiffs do not know and for such reason are unable to allege, and other moneys, credits and choses in action, the amount and descriptions plaintiffs do not know and for such reason cannot allege, but that all said property was, at the date of the institution of this action, in the possession or under the control of the defendants, and still is in their possession or control.
"Plaintiffs further state that for more than two years prior to her death the said Mary M. Berry was afflicted with a lingering disease, progressive in character, to-wit: cancerous tumor, from which she died, and that by reason of her diseased condition her mind was so affected that she was mentally incapacitated to transact any business whatsoever, such condition having existed for more than one year next prior to and to the date of her death, and especially for a period of time for more than seven months immediately before her death.
"Plaintiffs further state that for about seven months before the death of said Mary M. Berry, the defendant, Kate Hammontree, was constantly with the said Mary M. Berry and had control over her and was acting as her nurse in the home of the said Mary M. Berry and in the home of the said Kate Hammontree, and that by reason of the relationship between the said defendant, Kate Hammontree, and the said Mary M. Berry and her wants and necessities, the said defendant, Kate Hammontree, as agent and coconspirator of the other defendants exercised an undue influence and control over the mind and actions of the said Mary M. Berry, and the said Mary M. Berry was during all said time
under the influence and domination of the said defendants, through the defendant, Kate Hammontree, and that defendants and each of them as individuals and collectively at all times during the last seven months before the death of the said Mary M. Berry, exercised an undue influence and control over the said Mary M. Berry and her actions, and she, the said Mary M. Berry, was during all said time under the domination and control of the said defendants.
"Plaintiffs further state that defendants, with the unlawful, fraudulent and wicked intent to obtain all of the property which the said Mary M. Berry owned and possessed, did wickedly, unlawfully, maliciously, wrongfully, fraudulently connive, conspire and confederate among themselves as individuals and collectively to wrongfully and fraudulently induce and persuade the said Mary M. Berry to part with her property, and permit the defendants to obtain possession and control thereof, and deprive plaintiffs of any right therein as heirs at law of the said Mary M. Berry, and did wrongfully, unlawfully, fraudulently and maliciously, through their said acts and influences over the said Mary M. Berry, by divers and sundry means, the particulars of which are unknown to plaintiffs, but which are within the knowledge of defendants and concealed within their breasts, obtain possession and control of all of said property belonging to the said Mary M. Berry, and are now unlawfully, wrongfully, fraudulently and maliciously withholding said property against the rights of plaintiffs as heirs at law of the said Mary M. Berry, deceased.
"Plaintiffs further state that defendants did maliciously and fraudulently aid, abet, connive and conspire with one another, through one another to cheat and defraud plaintiffs out of their share or part of the said Mary M. Berry's estate, and said defendants did unlawfully and wrongfully get possession and control of said estate by their fraudulent and malicious conniving and conspiring with one another, through one another, individually and collectively; and that defendants did, by their fiendish and malicious connivance and conspiracy, as aforesaid, unlawfully, fraudulently and maliciously manipulate with one another and through one another and use such undue influence and persuasion over the said Mary M. Berry in such way and manner that defendants did unlawfully, fraudulently and maliciously get possession and control of all the said property so belonging to the said Mary M. Perry and her said lawful heirs at her death; that defendants now are unlawfully and fraudulently holding the said property and preventing and excluding plaintiffs from any right thereto or having any control thereover; and that defendants and each of them at the time of so confederating and forming said conspiracy and at all times thereafter had full knowledge and information of the physical and mental condition of the said Mary M. Berry, her property rights and of the plaintiffs' relationship to the said Mary M. Berry as her heirs and their interests in said property, and defendants at all times well knew that the said Mary M. Berry was fatally ill and could not recover, and that the duration of her life was very short.
"Plaintiffs further state that, by reason of the wrongful, unlawful and malicious acts of defendants, as aforesaid, the defendants have obtained and converted to their own use all of the property belonging to the estate of the said Mary M. Berry, deceased, and deprived and are still depriving plaintiffs of their interest therein, and that by reason of the unlawful, wrongful and malicious acts of defendants as aforesaid, plaintiffs have suffered actual damages in the sum of ten thousand dollars, and, by reason thereof, plaintiffs are entitled to recover from defendants punitive damages in the sum of twenty-five thousand dollars.
"Wherefore, plaintiffs pray judgment against defendants, individually and collectively, in the sum of ten thousand dollars actual damages, and for the further sum of twenty-five thousand dollars punitive damages, together with costs of suit."
By defendants' demurrer this petition was successfully challenged, in that (1) plaintiffs have not legal capacity to sue; (2) there is a defect of parties plaintiff; (3) several causes of action are improperly united; and (4) the petition does not state facts sufficient to constitute a cause of action. Was the court correct in so ruling? We think so.
Under the petition, keeping in mind, without repeating, the numerous reiterations as to all defendants' acts being unlawful, wicked, malicious, wrongful, fraudulent, etc., we may summarize the allegations as stating, first, by way of inducement and as a setting to defendants' wrongdoing, that Mary M. Berry for a year or more prior to her death was afflicted with an incurable disease, and her mind became affected so that she was incapable...
