Fowler v. Young

The opinion of the court was delivered by Brewer, J.: This was an action to set aside a will,- brought by the sole heir-at-law against the devisee and the administrator with-the-will-annexed. It was alleged that the will was a forgery, and that the probate thereof was obtained through the perjury of the subscribing witnesses. Two juries in successive trials found against the validity of the will, and from the judgment rendered upon the last verdict, this proceeding in error has been brought. The first alleged error is in the appointment of a guardian ad litem for the devisee. The appointment was made upon the claim that she was a minor. The devisee was properly served with process, and the first trial was had upon the supposition that she was of age, and without any appointment of a guardian. But as the record discloses, it appeared upon the trial that she was under age, and thereupon the verdict was set aside, and a guardian ad litem appointed. Subsequently she moved to have that appointment vacated, and that she be allowed to conduct her own defense. This motion was overruled, and of this, complaint is now made. The record discloses none of the evidence upon which the appointment was first made, neither does it purport to contain all offered upon the motion to vacate. Clearly then it does not show error. True, she claimed to be of age; but the question was one of fact, and notwithstanding her claim and oath, non constat but that the entire testimony abundantly established the fact of her minority. Various errors are alleged as occurring during the trial in the admission of testimony, etc., but unfortunately for the plaintiffs in error the motion for a new trial was not filed [159] until four days after the verdict, and no reason shown for the delay. Hence, as already settled by this court, none of these questions so fully discussed by counsel are before us for consideration. Odell v. Sargent, 3 Kas. 80; Mitchell v. Milhoan, 11 Kas. 617; Nesbit v. Hines, 17 Kas. 316. The only remaining matter is the error alleged in overruling a motion for judgment non obstante veredicto. Several grounds were stated in the motion, but the only one entitled to consideration, is, that upon the pleadings the defendants were entitled to judgment. And this cannot be sustained. The petition alleged specifically the death of the deceased, his ownership of property, the heirship of the plaintiff, the forgery of the will, giving a copy of it, and the perjury by which its probate was secured. The answer was a general denial. Clearly, the petition stated a cause of action, and no new matter was alleged in the answer. There was no error in overruling the motion. The judgment will be affirmed. All the Justices concurring.