The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-10-22

'eged that Mrs. Jennie Gordon obtain
&C the deed to lot No. 2 IN Potwin,
the Gordon home. while living with him
as his wife. and that by Withholding
from him the facts of her former mar
riagcs she was able to exert ar in
fuence over him which was undue and
fraudulent. Attorneys for Mrs. Gordon
took exceptions TO such a cause by
re ason of the failure to state what II
as she did to exert this influence and
that there was no evidence to prove
that she had exercised an influence I'M
Que. He was not mistaken about his
marriage they insisted. for she had
been his legal wife for ten years. and
that there was no ground for that al
legation. Mr.. Crane for the defend
ant also stated that the opposing at
torneys had not based any grounds
for their charge of fraud and had not
alleged a single fraudulent act of Mrs.
G. rdon in securing the deeds.
Judge Asked for Proofs.
Judge Dana ruled that the plaintiff
would have to state what fraud was
perpetrated upon the deceased Mr.. Cor
con.
Mr.. Crane continued to read law to
the effect that undue influence was
practically the same as fraud and
that a simple allegation, such as the
plaintiff had made, was not sufficient.
The court then asked that suppos-
ing Mr.. Gordon had been forgetful,
that he was aged and in feeble mind,
that he exhibited all the contrasts al
legged in his later years and that he
had all those characteristics and that
his wife had control of his business af-
fairs, then suppose even if the evil
dence did fail to show any scheming
on her part, would not the plalnt1ff
still have cause for action against
Mrs. Gordon and sufficient ground to
assert that she had exerted undue IN
f1uence in getting the deeds?
Mr.. Crane cited authorities for quo
tations to the effect that something
more than the wifely influence or the
influence of a loving son or daughter
would have to be shown before undue
influence could be proven and dehed
any one to show that Mr.. Gordon had
been Influenced any more than natur-
al from his love of his wife. Further
more, he repeated the testimony OF
DR.. Mum on the stand that Mrs. Lii
lie Mum did not need the money she
was suing for.
The attorney then asked that Moth
ing in the way of evidence pertaining
to the undue influence and the fraud
that simply the capacity of Mr.. Cor
don to execute a transfer of property
be the issue presented.
It was the contention of Mr.. Hite
that any person who gets too old and
incompetent to conduct his business
and to convert property, but is in
f1uenced to do so without compensa-
ton by some one then that in
f1uence is fraudulent.
Judge Dana in ruling on the mo-
lions, said:
Dana VIII Transmit Noted Questions.
Can it be said that this is an action
for the recovery of real estate? I think
rot The issue as to whether or not
this defendant was a lawful wife was
decided in this court before between
the same parties ana it was found that
she was and tnat will have to be bind
ing in this case Il follows, therefore,
that so far as the property is concerned
this defendant is owner of an undivided
half as an heir even though the deeds
should be set aside. The petition asks
that an absolute ownership of the
property to be vested in the plaintiff.
There complications arise. I feel that
a general verdict of the jury will not be
sufficient and the court himself will
submit questions to the jury as in
other cases of this nature where a jury
| is called to assist the court.
] "As to the matter Of the appeal OF