110 Kan. 99 | Kan. | 1921
Mary B. Ady commenced this action to set aside a contract made by her with the defendant settling their respective interests' in the estate of I. L. Ady, deceased, the husband of Mary B. Ady and the father of the defendant, and to set aside deeds made by Mary B. Ady to the defendant in pursuance of that contract. The petition alleged that the execution of the contract and deeds had be,en procured by the fraud of the defendant. Mary B. Ady, as administratrix of the estate of I. L. Ady, deceased, was joined as plaintiff and asked that all personal property belonging to the estate be placed in the hands of the administratrix. Judgment was rendered in favor of the plaintiff personally and as administratrix. The defendant appeals.
An appellate court does not observe the appearance, mannerisms, and characteristics of the parties to litigation and of the witnesses therein. The plaintiff testified on the trial; the defendant was in the court -room; both were observed by the court. From the evidence, including letters written by defendant to the plaintiff, and from what was seen by the court, the following finding of fact was made, which may properly be considered by this court in passing on the demurrer to the evidence:
“18. That the plaintiff is a person of weak and frail physique, and of a timid and retiring nature, never actively engaged in business for herself, and during her life dependent more or less upon and following the advice of others; that she was wholly unacquainted with the schemes -of defendant’s fraud, credulous, fearful of opposition and antagonism, and at and prior to-the execution of the contract in question, and subsequent thereto, was confused in mind by the revelations concerning her deceased husband’s family relations; and defendant George L. Ady, being of strong physique, and of a domineering and aggressive personality, took advantage of these weaknesses of the plaintiff, and by his domineering and aggressive and threatening attitude toward said Mary B. Ady, and by his false and fraudulent representations, exercised an undue influence over her, and thereby induced her to execute the said contract of division of property offered in evidence in this case, and thereby induced her to execute the deeds, make payments and carry out the terms of said contract.”
When the defendant informed the plaintiff of the existence of Stella Fisher, an alert person would have realized that the defendant had made false statements about the children of I. L. Ady and would have realized that a fraud had been committed. Subsequent to that time, the plaintiff gave the defendant $375 to purchase the
“Where a family agreement or compromise is entered into in ignorance by one party of material facts which it is the duty of the other side to disclose, it will be set aside at the instance of the party who entered into it in ignorance of the facts.” (Syl. If 4.)
(See, also, Welch v. Lewis et al., 104 Ky. 531; Toomey v. Whitney, 94 App. Div. [N. Y.] 154.)
The court properly overruled the demurrer to the evidence, and the judgment rendered on that evidence was entirely just and proper.
All complaints have been examined; there is nothing in any of them to warrant further discussion.
The defendant was guilty of a grievous wrong against the plaintiff. The judgment undertook to right that wrong, was eminently just and proper, and is affirmed.