Stevens v. Dimke

Citations

• 110 Kan. 686
• 205 P. 596
• 1922 Kan. LEXIS 125

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>Will — Action to Set Aside — Mental Incapacity of Testator — State Board of Administration Proper Party Defendant. A will was made and probated leaving, one cent to each of the testator’s four brothers and two sisters, providing for funeral expenses and a monument, and giving the rest of his property to the trustees of the State Orphans’ Home. A part of the heirs, including one of the brothers, brought an action to set aside the will because of the testator’s incapacity, naming as defendants one of the sisters, the administrator, and the State Board of Administration and its members, who constitute the trustees of the home. The board upon a special appearance moved to quash the service on it because it represented the state and could not be sued without its consent, and the motion was sustained. The sister, who was a defendant, filed an answer consisting of a general denial. The administrator filed an answer raising no issue. A receiver was appointed to take charge of the real estate left by the testator. A trial was had between the plaintiff on the one hand and the answering defendants on the other and a judgment was rendered setting aside the will. Nearly three months later, but before the expiration of the term of court, the Board of Administration asked to be made a defendant and to be permitted to resist the attack upon the will. The application was denied, and from that ruling the board appeals. It is held that in view of the facts that after the board had caused the service upon it to be quashed the situation was changed by the appointment of a receiver for the real estate, and that the trial was had and judgment rendered solely between parties having no substantial adverse interests, the court should have granted the request of the board for permission to become a party and make a defense.</p>