Wohlfort v. Wohlfort

• Decision Date: 12 March 1927
• Docket Number: 27,219
• Citation: 123 Kan. 142,254 P. 334
• Parties: ANNA F. WOHLFORT, Appellee, v. AXEL T. WOHLFORT, LOUISE C. WOHLFORT AND BESS M. WOHLFORT, Appellants
• Court: Kansas Supreme Court

254 P. 334

123 Kan. 142

ANNA F. WOHLFORT, Appellee, v. AXEL T. WOHLFORT, LOUISE C. WOHLFORT AND BESS M. WOHLFORT, Appellants

No. 27,219

Supreme Court of Kansas

March 12, 1927

Decided January, 1927.

Appeal from Republic district court; JOHN C. HOGIN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. APPEAL AND ERROR--Review--Ruling on Demurrer--Time for Appeal. In an action for alimony wherein the defendants demurred to the petition, which demurrer was overruled and no appeal was taken from the ruling within six months, the legal questions raised by the demurrer must be regarded as having been finally determined and are not thereafter open to review.

2. DIVORCE--Independent Action for Alimony--Setting Apart Specific Property to Wife. In such an action where no divorce is sought the court has power to make an equitable division of the property of the parties and set apart to the wife real estate of the husband--following Osman v. Osman, 86 Kan. 519 121 P. 327.

3. SAME--Independent Action for Alimony--Third Party Defendants. In such an action where other parties than the husband claimed the property sought to be set apart to the wife, it was competent for her to make such claimants parties defendant in order to have settled therein the ownership of the property.

4. SAME--Independent Action for Alimony--Determining Rights Under Will. The claimants alleged that they held the complete title to all the land involved which had been derived through a will made by the husband's father, a part of which land the wife alleged was owned by her husband, and it is held that the inquiry and determination of the ownership of the land was a mere incident of the action for alimony and is not to be regarded as a contest of the will.

5. WILLS--Forfeiture of Devise by Withholding Will from Probate. Where the devisees under the will had knowledge of its existence and had it under their power and control for more than three years without offering it for probate, it became ineffective as to them and the land so devised became intestate property. The subsequent probate of the will did not operate to revive the devise.

6. WILLS--Devisees' Knowledge of Will--Evidence. The evidence examined and held to be sufficient to support the finding that the devisees in the will knew of its existence and had it under their power and control without offering it for probate for more than three years.

7. DIVORCE--Independent Action for Alimony--Abandonment. The charges of the wife that her husband had abandoned, neglected and wronged her, and had failed in his marital duties towards her, are held to have been sustained by the evidence, and that it warranted the granting of alimony and a share of his property, and further, that the award made cannot be held to be excessive.

8. SAME--Generally. Other objections have been considered and are not deemed to be material.

Park B. Pulsifer, Clyde L. Short, both of Concordia, and C. Vincent Jones, of Clay Center, for the appellants.

W. D. Vance, R. E. McTaggart and H. H. Van Natta, all of Belleville, for the appellee.

OPINION

JOHNSTON, C. J.:

This was an action to obtain alimony, brought by Anna F. Wohlfort against her husband, Axel T. Wohlfort; and his mother, Louise C. Wohlfort, and Bess M. Wohlfort, his sister, were joined as defendants. After stating the marriage relation and her fidelity to her marital obligations, she alleged that her husband abandoned her in Chicago where they had been living for some time, leaving her in an enfeebled condition resulting from illness and a surgical operation which she had undergone late in October, 1922, from which she had not then and has not now fully recovered, and that since the abandonment he has failed and neglected to provide funds or means of support, and that since that time she has been required to depend upon the good will and charity of friends and relatives. She also alleged that he is physically able to earn funds with which to provide for himself and her, and is also the owner of property with which he could provide support. In respect to the property she alleged that besides certain personal property he had an interest in the assets of the estate of his deceased father, including rents and profits derived from land of the value of $ 4,000; besides, it is alleged that he owned an undivided one-sixth interest in real estate consisting of town lots and farms in the aggregate of 1,227 1/2 acres, and that his interest in this real estate was reasonably worth a sum in excess of $ 30,000. She alleged that Louise C. Wohlfort and Bess M. Wohlfort claimed some interest in the real estate which had descended to her husband, and therefore they were made parties, but the exact claims made by them were not known to her, but she believed that they were based upon a purported will claimed to have been made by his father, Thure Wohlfort, who died in November, 1916. She averred that Bess M. Wohlfort had instituted proceedings in the probate court of Republic county where she procured a probate of an instrument claimed to be the last will of her father, Thure Wohlfort, by which it was sought to vest the title to the real estate mentioned in her mother and herself in equal shares, but their claims under the purported will and pretended probate were without foundation, in fact or in law, inasmuch as the defendants had had in their possession and under their control the purported will for more than three years prior to the time the same was offered for probate and more than six years after the death of Thure Wohlfort, and that whatever claims they had under the will had been forfeited, and the real estate had become intestate property, and plaintiff therefore asked for temporary and permanent alimony from defendant, Axel T. Wohlfort, and that she be awarded a just proportion of the property owned by the defendant.

Following a number of motions for temporary alimony and other purposes, including contempt proceedings, the history of which may be found in part in Wohlfort v. Wohlfort, 116 Kan. 154, 225 P. 746, and 118 Kan. 292, 235 P. 111, Axel T. Wohlfort filed an answer consisting of a general denial and averments to the effect that he had no interest in the real estate mentioned by the plaintiff, that he recognizes the validity of the will made by his father, and had been without knowledge of it or control over it until after his return to Kansas in March, 1923. He specifically denied that he had been guilty of gross neglect of duty towards his wife, and that when he left Chicago he turned over to her all of the property he possessed except some worn out machinery and a few animals of little value that were on the farm. He added that plaintiff had never since he left Chicago offered to live with him, nor communicated with him, and that he has only met her in court when she was attempting to put him in jail because of his inability to give her the money she wanted. Louise C. Wohlfort alleged that her husband died testate, leaving a will which had been probated and that her son Axel was not a legatee nor had he been given any interest in the estate of Thure Wohlfort under the will. The answer of Bess was to the same effect, in which she set up a copy of the will, executed September 27, 1912, in which it was recited that the testator gave one-half of all the property, real, personal or mixed, with which he was seized and possessed to his wife, Louise C. Wohlfort, and the other one-half of the same to his daughter, Bess M. Wohlfort, and named his daughter Bess as executrix. She alleged that she had no knowledge of the existence of the will until in March, 1923, when with the assistance of her mother she made a search among old papers and found the will which had been kept in an old trunk belonging to her father where he kept deeds, abstracts and papers of that kind. In the evidence was a transcript of testimony introduced in the two contempt proceedings. The court called a jury to pass on the facts relating to the title to the real estate and reserved to itself the decision of other questions. In the decree entered in May, 1926, the court adjudged that plaintiff was entitled to judgment against defendant's mother and sister on the findings of the jury, that Axel T. Wohlfort was the owner of a one-sixth interest in the real estate of Thure Wohlfort, and further that Axel T. Wohlfort had been guilty of extreme cruelty as well as abandonment and gross neglect of duty towards his wife, awarding her permanent alimony out of his one-sixth interest in certain property which was described and which amounted to 1,227 acres.

In defendants' appeal they insist first that the demurrer of Louise C. and Bess M. Wohlfort to plaintiff's petition as amended should have been sustained. The grounds of the demurrer were that the plaintiff did not have legal capacity to sue them inasmuch as the suit was one to obtain alimony from her husband, and that his mother and sister had no interest in that controversy, and that so far as the estate of Thure Wohlfort was concerned it was a matter wholly within the jurisdiction of the probate court. Another ground of the demurrer was that several causes of action were improperly joined, in that plaintiff sought to join with her action for alimony another to set aside a will and have the property declared to be intestate and a part of it set over to plaintiff as alimony. The demurrer was overruled and the six months period for appeal passed but no appeal was taken. Instead Louise C. Wohlfort filed an answer setting out defenses as already stated, and then prayed that the title to all of the real estate described in the petition be quieted as against any claim of the plaintiff or of plaintiff's husband, Axel T. Wohlfort. Bess M. Wohlfort filed a...