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Show MONDAY, MAY ft, 1974 PAGE NINE INTERMOUNTAIN COMMERCIAL RECORD in The Supreme Court Of The State Of Utah 64-7-- 165 Colo. 205. 33 A. L. R. 2d 1257. and Wiaington v. State Home and Train- ing School. 486 P. 2d 417, (Colo. ). thereof shall be assessed to and paid by the applicant, patient, spouse, parents, child or children who are of sufficient financial ability to do so, or by the guardian of the patient who has funds I can lee no merit whatsoever to defendant1! reliance upon Section U.C.A. 1953 which provides: 54, Construction of act. - Nothing contained in this act shall be construed to alter or change the method presently employed for the commitment and care of the criminally insane as provided in chapter 48 of Title 77, Utah Code Annotated 1953. of the patient that may be used for such purpose. similarily Section and It will be noted that that statute refers only to the method of commitment and care of the criminally insane; and that it says nothing whatsoever conhow the of maintenance is to be borne and has no applicacerning expense tion to that problem. Liability of estate of mentally-i- ll person. - The provisions herein made for the support of the mentally ill at public expense shall not release the estate of such persons from liability for their care and treatment, and the division of mental health is authorized and empowered to collect from the estate of such persons any sums paid by the state in their behalf. 6, Section U, C. A. 1953 deals with the subject of the costs of maintenance of patients in the state hospital in direct, general and all inclusive language, and makes no exception. It states: 64-7-- In accordance with what is said above concerning the status of Mr. Diamenti as one not convicted of crime, it is my opinion that the State is correct in its contention that by reason of the statutes just quoted he (and his guardianship estate) are responsible for the reasonable expenses of his maintenance in the state hospital. AH emphasis added. The division shall estimate and determine as nearly as may be the actual expense per annum of keeping and taking care of a patient in the hospital and such amount or portion 2. Briskman v. Central State Hospital, (Ky. ), 264 S. W. 2d 270. 3. State v. Kosiorek, 5 Conn. Cir. 542, 259 A. 2d 151, 20 A. L. R. 3d 363. 4. See similar reasoning by the Illinois court in the cases of In Re Estate of Schneider, 50 111. 2d 152, 277 N. E. 2d 870; and Department of Mental Health v. Pauling, 47 111. 2d; and also in State v. Burnell, 439 P. 2d 38, . . . Ellett, Justice, concurs in the views expressed in the dissenting opinion of Mr. Justice Crockett. filed, and the matter was argued. One point raised on oral argument which was not considered in the original opinion and totally ignored in the prevailing opinion herein should be considered: A gift obtained by one in a superior position from one in a dependent situation is presumed to be obtained by fraud.1 Nels A. Nelson, Administrator of the Estate of Virgil Homer Nelson, deceased, Plaintiff and Appellant, v. V, Homer Nelson, et al. No. 13100 On Rehearing , Defendants and Respondents. V. Homer Nelson, et al. provides that: 64-7-- 18 since 1936 with In this case the deceased had been a semi-inval- id 75 per cent disability and entirely dependent upon his wife for his care and comfort for almost one third of a century. FILED , April 29. 1974 Cross Plaintiffs and Respondents, -- v. Nels A. Nelson, Administrator of the Estate of Virgil Homer Nelson, et al. , Cross -- Defendants and Appellant. I think if the majority of this court would consider the presumption of fraud together with the sworn testimony of the wife, which testimony was against her own interest, a different conclusion would be and certainly should be reached in this rehearing. Allan E. Mecham, Clerk 1. Omega Investment Co. v. Woolley, et al. , 72 Utah 474, 271 P. 797 (1928); In Re Swan's Estate, 4 Utah 2d 277, 293 P. 2d 682 (1956); Johnson v. Johnson, 9 Utah 2d 40, 337 P. 2d 420 (1959). ' I adhere to the reasoning set out in my dissent to the original decision HENRIOD, Justice: in this matter. Petition for rehearing in the above case. Upon review and further consideration, denied with no costs awarded. CROCKETT, Justice: (Dissenting) I concur with Justice Ellett1 s dissent, adding these supplementary observations: presumptions of this character mentioned by Justice Ellett, are particularly cogent as between, members, of a family where because of affection, intimate association and confidence, a trick of that kind would be easier to perpetrate upon a trusting member of the family. 1 Even more important than this are these facts: that the wife Theresa, and the notary public Mrs. Wilson, who testified outside of the presence of each other, and had the only direct knowledge of the event, gave consistent testimony as to what occurred. Their testimony had not only the assurances of credibility of being under oath, but that they were testifying to something that did them no credit, but was against their own interest in that it reflected unfavorably upon them; and as to Theresa, was also against her economic interest. In view of the circumstances just mentioned, the evidence is in mind overwhelming that the deed was obtained by deception, and it should be regarded as a nullity. This case, 30 Utah 2d 80, 513 P. 2d 1011, was affirmed August 31, 1973. On rehearing we find nothing additional to review. Appellant's brief on rehearing presents no reasons for reversal other than those presented at considerable length before and we are constrained to and do hold that there is no reason for reversing our decision. WE CONCUR: R. L. Chief Justice Jr., E. R; Callister, Tuckett, Justice ELLETT, Justice: (Dissenting) See Jardine v. Archibald, Jurisprudence $ 956. I dissent. . Court New Actions City Murray oc Murray City Power JAKES W. SLOAN So. 7th East 6755 A. RONALD B MILLARD DENNIS WARREN MILLER 383 E. 1800 So. a9 Fountains Dr. STUART LEE MORTENS EN KAY E. PRUITT East C 5554 So. 3 (JIM NT E. HAWKINS 5871 So. 157 V. GEORGE A. PLOTT 729 Holly Circle JOANNE BALLARD 6502 So. 1040 W. W. DOOH SPA 135 E. 6100 So. FRONTIER AUTO SALES 5210 So. State ROY BROWN 5901 So. SPARTA INC. 3-l- L. 3051 S. 9050 $111; & VELDA $811 T. P. Vuyk, W. dba 4 State k MURRAY $386; 00; Verhaaren 63763; Garden Gate Dist. Ino WILLIAM G. CALL dba MASTER CRAFT UPHOLSTERY; 2700 So. State; $179; 00 ; S. Vanderslinden, atty; 3-1- 5-7 6376ft Gene's Bldg Materials VS FRANCIS Metos, Credit Cor Ha atty; ilea vs UNITED CAMP- WILLIAM JOHNSON 63775 JR. DODDS RICHARDSON fa DOR-EDODDS aka D0REEN RICH- LYNN EN 00; So. 4800 W. T. P. Vuyk, att b CARLA R. OLIVER; 12775 So. 1802 W. $54; oe; T. P. Vuyk, atty X.1 7k 3-1- 8-7 63679 UC vs CLINTON MULL INS 5609 So. Northwest Ave.; $46; serv; H. G. Hansen, atty; 3-1- 1-7 VS MERLIN fa GAYLA 2787 So. 9000 W. $31; serv; E. H. Fankhauser TH0RSEN; atty; 9-7 SHARP; 7 Alfred Haslen vs STACIE. E. 7615 So. $29 serv; L. Bishop, atty; J'.ILL WER- CK CO. G01 W. & CABINET Lay ton Ave.; $233; cont; R. J. Carting, atty 63789 R. S., Hannah Co. vs DAN LOEWEN; ll6 "P" St.; 3-1-9-7 J. $358; cont; R. atty; Product vs 63790 Bldg J. Calling 9-7 FARLEY; oc; $359; atty; MICHAEL 5325 Aval on Dr. J. R. Carllng, 9-7 63791 Oscar E. Chytraus Co; VS MOBILE ESTATES, INC; oe; 4361 So. State; $265; R. J. Carl ing, atty 63792 D fa T Auto Repair, Ino vs ROBERT RAWS0N dba R0BER1 RAUS0N MASONRY; 5515 Willow Ln. B; $505; 00; R.'J Carl ing, 63793 WSC vs atty; 3-1-9-7 CAROL LEE; 710 Claret Cir.; $11; serv; R. J. Carl ing, atty 63785 Fire Control MELVIN Co. vs MILLER; 4953 E. Ridge Ln,; $277; oe; H. C Verhaaren, atty; 63786 Texaco, Ino vs JAMES L. MOWER; 7152 So. 1320 W.; $523; oe; T. I. Wittmayer atty; 3-1- 9-7 63787 American CLYDE C. Oil Co. vs GANDEE; 4480 West; $668; Wittmayer, atty; 4826 So. oc; 3-1- 9-7 America Weat Acceptance VS LOWELL H. k DONNA DAVIS 1084 E. Turquoise Way; $439; cont; K, Jar gens en, 6379 atty; 9-7 ill J 63795 Dansie, VS AM Ellett b T. I Han Ed W. HILTON, 76 E. 7th S.j $225; R. R. Dansie, atty; 9-7 4216 KAB VS JAMES R-- oc; 3-1-9-7 -74 VS HENRY KAB $148; R. fa LINDA FORBRUSH; 195 E. Brent Cir. $24; T. P. VUylc, atty; 63779 Doc k March Cdt vs WILLIAM- E. CLOUGH dba CLOUGS AUTO REPAIR; 885 S. 200 E. $477; 00; T. P. Vuyk, atty 63782 3-1-8-7 fa UNITED hop, atty; ARDSON: C JOHN WOOD-TE- 3-1- 9-7' U.S.A. 1400 W. No. Temple; $79 oe; L. Bis6377 atty; k Kerch Cdt vs 63778 Doc 63781 SAB R. LINTON; 5686 Alfred aka 3-1-5-7 chk; T. P. Vuyk, 3-1-9-7 1 Way HALES; 63780 SAB VS WAYNE W. BATEHAN 7376 S. 1300 w.; $36; con; E. H. Fankhauser, atty; GROUNDS 1 H. C. atty L. Bishop, CAMPGROUNDS SALES; 6775 S. 860 E. Ferguson 1 252 Camino Stocks 4777 So. 2124 E. oc; East on St.; $921; eon; 63771 J. 63788 R. S. Hannah Co. vs NER HENZEL dba 3-1-9-7 63769 General Credit Co. vs JAMES A. & SHIRLEY HAGLER 3228 So. 4169 W. $978; note; A. H. Metos, atty; A. H. ELLEN -74 VS KENT RANDY STOCKS AUTO 3-1- 5-7 63770 Westinghouse oc; vs KAB 198 Princeton Ave; $38; 8-7 5-7 FERGUSSON Dr.; $55; 5-7 UNCLES; -7 VS JAMES 00 k servj atty; Atty; KINSLOW 658 So. 110 GOLDON 63759 KAB 63777 Alfred Haslem dba Seagull Printing Serv. vs LEE 3-1-5-7 McBEE THURHAN M, atty; E fa M; 63767 J. Wilee fa Virginia M. Beebe vs RONALD k JANET t LEE ARNOLD; $576 W. 5055 So. $l65; rent; N. J. Olsei atty; IIUEB-NE- R;' 874 63768 63760 KAB VS JEFF H. GAY; 22 00 So. 400 V.J $150; T. P. Vuyk, atty; 63762 American Hardvard Mutual Ins. Co. vs RONALD VADDELL 5515D Willow Ln. EMMA Club; II. B. Hansen, 1 63757 AIC vs BILLY RAY fa KAY ARCHULETA; 165 Paxton Ave 1; $888; note; A. M. Met KEMP; East 5325 So. 580 CRAIG Ambassador 3-- l-7 DR. CHICHTON HcNEIL CYNTHJA atty; 5th S. 5249 Sprlnghouse Ln. 5327 E. 560 W. UC VI DONALD fa CAROL PROVOST 1 he 1 73 E. R. COULT 4137 Three MURRAY $19; con. atty; dba k 63766. Gene's Bldg Materials vs JOHN TROY dba JOHN TROY HOME HIPRV. 879 So. 1330 E; $71; 00; M. Biljanio 63756 she 1 -- VS ELD0N THATCHER VS HILDEGARD KAB IO689 So. 2200 W.; $222; T. P. Vuyk, atty; 5-7 22 Murray City Court PERSIS H. MELSHES 39 2 E. riegal 3 RUCK LEE REDD 2 Regal 44 KATHY N. DAWSON 45, E. Miller 6 ELAYNE 5987 So. New Actions YOUNG E. Regal St. 4 STOCKLEY 5650 So. 10th E. Regal St. LA DEAN rials 3370 Pearce L. 63776 3-1-5-7 MIKE BERGSTROH 528 W. CHESTER DONALD J. 1 JOSEPHINE SYNDER 414 BUJanie, atty; 63765 Genes Building MateM. State 5012 So. Spring, House. Ln. 638 8572 So. 150 w. $135; 5160 So. State b K AUTO CUSTOM 305 Germania Ave. RAYMOND MANDET 5683 Capri JOHN K. SIMMERS Utah 2d 88, 274 P. 2d 454; Pomeroy, Equity 3 1. In the first place, the rehearing was granted, briefs were -- JR serv; 3-- 19- 7 vs THERESE M. PRO1620 Talisman Cir. C; $45 agreement; T. P. Vuyk; atty; 63797 KAB VS DAVID R. b KAREN ASHBY; 328 Troy Way; $487 agreement; T. P. Vuyk, att 63796 KAB VOST; -74 3-2- 63798 E. Rita C. Perry vs fa ROBERT SHIRLEY R. NAYL0R; |