98 Kan. 698 | Kan. | 1916
The opinion of the court was delivered by
When the opinion herein (Holland v. Holland, 97 Kan. 169, 155 Pac. 5) was filed, it appears that defendant James Holland had departed this life. A motion for rehearing was filed and left undisposed of until proper notices to secure a revivor could be secured. Revivor having been accomplished, the motion for rehearing is denied.
Modification of the judgment is requested and under the circumstances should be made. The plaintiff should be required to account to the other parties interested for the value of the support of his father from the time he left the plaintiff’s home until the time of his decease. He should also be required to pay the legacies which the jury found he contracted with his parents to pay. When these conditions are complied with the title of the plaintiff to the land should be quieted. Counsel insist that the finding by the trial court that the plaintiff breached his contract is unsupported by the evidence and outside the issues framed by the parties. But as a method of settling the controversy upon equitable principles this seems fairer and more practical than to go again into the facts and merits.
To the extent herein indicated the former judgment and opinion are modified.