Opinion
No. K-470.
May 2, 1932.
Suit by Elizabeth M. Kengel, executrix of John A. Kengel, deceased, and another, individually and in their capacity as beneficiaries of the estate of Joseph Kengel, against the United States.
Petition dismissed.
This is a suit to recover from the United States estate taxes in the sum of $91,249.95 paid by the plaintiffs upon real property included by the Commissioner of Internal Revenue as part of the estate of Joseph Kengel, deceased, father of the plaintiffs, the property having been deeded by the said decedent to the plaintiffs within a short time of their father's death, the commissioner including it in the estate as a transfer made in contemplation of death.
This case having been heard by the Court of Claims, the court, upon the report of a commissioner and the evidence, makes the following special findings of fact:
1. This is a suit to recover from the United States the sum of $91,249.95 with interest, being part of the sum of $93,994.35 paid to the collector of internal revenue by the administrator of the estate of Joseph Kengel upon certain real property of the then value of $1,300,000 transferred by the decedent during his final illness and within a few weeks prior to his death at the age of ninety-two years nine months and sixteen days, to his surviving sons, John A. Kengel and Frank H. Kengel, the plaintiffs herein.
2. The decedent was born at Patterborn, Westphalia, Germany, on August 15, 1831. When in his early twenties he emigrated to the United States and in or about the year 1854 established his residence in the city of Detroit, Mich. He subsequently became a naturalized citizen of this country.
The carriage business which the decedent founded in the city of Detroit within a few years after his arrival there prospered and he had the foresight to invest a substantial portion of the surplus earnings of his business in Detroit real estate. In 1865 or thereabouts he purchased the first of the several contiguous pieces of property located at and between Gratiot, Grand river, and Library avenues in downtown Detroit, which he assembled throughout a period of more than thirty years and which ultimately became known in that city as the Library Park Hotel property. The property was also quite generally referred to as the Kengel property. It was there that he had his office, and it was in that property that his business interests during the latter years of his life were chiefly centered.
3. On or about March 5, 1924, while supervising some alterations which were then being made on the Library Park Hotel property, the decedent contracted a heavy cold and from that day until his death on May 31, 1924, he was unable to leave his home. Prior to the beginning of that illness the decedent had but rarely required the services of a physician and then but for colds or other slight illnesses. He was six feet in height and he weighed approximately one hundred ninety pounds. It was his frequent boast that he would live to be a hundred years old.
Soon after the death of his wife in 1895 the decedent retired from the carriage business and built and removed to the country home on Lake St. Clair at Grosse Pointe, near Mount Clemens, Mich., where he continued to reside until his death. During his latter years he had but few close friends. He was regular in his habits and he lived in a quiet and relatively modest manner. His household servants comprised a housekeeper, who was a practical nurse of many years' experience, a gardener, and a chauffeur. The chauffeur's chief duty was to drive the decedent to and from his home at Grosse Pointe and his office in Detroit, a distance of approximately twenty miles in each direction. The decedent was generally accompanied on those drives by his housekeeper. He took a very active interest in his real estate holdings and made it a practice to spend an hour or two each afternoon at his office and in superintending any repairs, alterations, and improvements which might then be under way on his properties.
4. On March 9, 1924, the decedent's housekeeper became alarmed about his condition and called in Dr. Fred K. Lanfesty, of Mount Clemens. Dr. Lanfesty found the decedent confined to his bed with the appearance of being a feeble and very old man. Upon examining him Dr. Lanfesty found that although he was suffering from an inguinal hernia or rupture of the right side, the hernia was not strangulated and was consequently not dangerous.
Dr. Lanfesty visited the decedent again on March 17th and again examined the rupture and found nothing serious. When he next called, on March 29th, he found the decedent to be suffering from bronchitis, that his heart was weak, and that he had a pain on the left side, which condition at his advanced age might have serious consequences. Dr. Lanfesty attributed the weak and irregular heart action to the acute bronchial infection from which the decedent was absorbing poison until it affected the entire muscular system. On the occasion of his next visit, on April 1st, he found the bronchial condition to be improved. He called again on April 2d 3d, and 7th, and on the latter date he found the acute bronchial condition to have cleared up, and that, although mentally bright and able to converse, the decedent was very weak.
During the first several days of his confinement to his home the decedent was able to leave his bed to sit up for a time each day, but as his illness progressed he gradually lost weight and strength and during the last several weeks immediately preceding his death he was entirely confined to his bed. During the first week of his illness he turned over $1,000 in cash to his housekeeper and instructed her to look after the payment of all household expenditures. Prior to that time he had personally taken care of the payment of all such expenditures. About the middle of March, 1924, the decedent's housekeeper engaged a trained nurse to attend to the decedent at night, and with the exception of an interval of a few days when one nurse was discharged and another employed, a trained nurse was thereafter in attendance upon the decedent until the date of his death.
5. On the afternoon of May 12, 1924, the plaintiff Frank Kengel, accompanied by a Mr. Church, a long-time friend and associate of the decedent, called at the offices of Drs. Max Ballin and Norman McCloud Allen, two of Detroit's leading surgeons, to arrange for an examination of the decedent at his home. The call was made at the instance of Mr. Church and only after he had first obtained the decedent's consent to the proposed examination. Frank Kengel informed Dr. Allen that his father was suffering from a strangulated hernia and that although he thought possibly his father was too old to have anything done surgically, he would nevertheless like to have the benefit of his opinion as to whether anything could be done to relieve him. The following morning Frank Kengel and Mr. Church called for Dr. Allen at his office and drove him out to the home of the decedent at Grosse Pointe. Dr. Allen obtained a history of the patient's case, partially from the patient but chiefly from the housekeeper and Frank Kengel. The history which he obtained was that the decedent had been in reasonably good health practically all of his life and up to approximately a year prior to the present illness at which time he had developed chronic constipation. Six months later he had developed frequent bleeding from the rectum and five weeks prior to Dr. Allen's examination he had had an attack of influenza.
Dr. Allen found the decedent to be an old, emaciated man, very weak, and very difficult to converse with. He was more or less drowsy and indisposed to be disturbed, and unable to move about in his bed without assistance. He had the appearance of having been ill for a matter of six months or thereabouts. Dr. Allen examined him thoroughly and found him to have a double femoral hernia which was not strangulated. He further found that the decedent had a cancer in the region of the sigmoid, which he was able to detect by feeling the decedent's abdomen. Dr. Allen termed the cancer an inoperable one and one usually fatal. It was Dr. Allen's opinion based upon much experience with similar cases that the cancer had existed for five or six months. At the conclusion of his examination Dr. Allen informed Frank Kengel and the decedent's housekeeper that the decedent had a cancer of the sigmoid and probably would not live for more than two or three weeks.
On May 28th the housekeeper again called in Dr. Lanfesty and informed him of Dr. Allen's diagnosis. Although surprised at the diagnosis of Dr. Allen, Dr. Lanfesty upon again examining the decedent confirmed it. He, too, was of the opinion that the cancerous condition had existed for a matter of at least six months. He found Mr. Kengel weaker than he had been when he last saw him, that his heart action was weak and irregular, that the cancer was evidenced by quite a hardened mass in the abdomen, and that he was then beyond all hope of recovery. The decedent died on May 31, 1924, and Dr. Lanfesty signed the death certificate stating the cause of his death to be cancer of the stomach.
6. Joseph Kengel was survived by his sons, John A. Kengel and Frank H. Kengel, and several grandchildren, the children of his deceased son William Kengel and of his deceased daughter Mrs. Mary Kengel Bayer, his next of kin and heirs at law. The surviving sons are the plaintiffs herein. They are citizens of the United States and residents of Detroit, Mich., both of them having been born in that city. At the time of the death of the decedent John was sixty years of age and Frank was fifty-two. John's residence in Detroit had been a continuous one, and he had at the time of the death of his father been engaged in the hardware business for more than thirty years. He had at all times been on intimate and very friendly terms with his father and had assisted him to some extent in the care of his various properties. In 1898 or thereabouts Frank was given all of his father's stock in a mine property in Colorado which had been shut down for a number of years and removed to Colorado to look after that property. He thereafter engaged in the hardware business in the city of Denver and remained there until 1917, when following a visit of his father in Denver he disposed of his business there and returned to Detroit at the request of his father to devote all of his time to assisting him in the management of his properties. Upon his return the decedent presented him with a furnished home valued at approximately $30,000 and gave him a monthly salary of $150, which at the time of the decedent's death had been increased to $250. He was subsequently given other properties. The total value of gifts which he received from the decedent between 1917 and 1924, exclusive of the interests in the Library Park Hotel property, was between $50,000 and $60,000. John likewise received gifts of property and cash from time to time, as did the other children during their lifetime.
It had apparently been the desire of the decedent for a number of years preceding his death that the Library Park Hotel property should become the property of Frank and John in order that the Kengel name might be perpetuated in the city of Detroit. In speaking of the property to his friends he frequently referred to it as "the boys' property." He had declined opportunities to lease the property on long-term leases, because it was his intention that Frank and John should be able to exercise complete control over it. He had from time to time during the latter years of his life talked with Frank and John about leaving the property to them. On May 5, 1924, Frank had two deeds prepared conveying an undivided one half interest in the entire Library Park Hotel property to himself and the other half undivided interest to his brother John. The deeds were prepared by Mr. Church and, accompanied by Mr. Church, he drove from Detroit to Grosse Pointe on May 5, 1924, to secure the execution of the deeds. The decedent declined to execute the deeds at that time, stating that he wanted to think the matter over for a few days. The deeds were actually not executed by the decedent until the morning or early afternoon of May 12, 1924, the day preceding Dr. Allen's examination of the decedent, although the date of the deeds, as well as the acknowledgment of the notary thereon, was May 5, 1924.
The decedent was in his bed when he executed the deeds and was so weak that it was necessary for him to be supported while he did so. The circumstances surrounding the execution of the deeds clearly indicate that the decedent knew at the time he executed the deeds that he had but a short time to live. The acknowledgment was by Mr. Church, who died prior to the trial of this case. The two deeds were recorded in the office of the register of deeds of Wayne county, Mich., on May 28, 1924, three days prior to the death of Joseph Kengel. Frank Kengel testified that: "We" — referring to John and himself — "thought it best to put them on record when we thought the old gentleman failing — there might be some controversy. You never know. We thought it best to put them on record for safety first, etc. You know."
7. Within a week following the death of Joseph Kengel the Security Trust Company of Detroit, Mich., was duly appointed and qualified as special administrator of his estate and was thereafter duly appointed and qualified as the general administrator.
In its capacity of administrator, the Security Trust Company on March 14, 1925, made and filed a return for federal estate tax for the estate of the deceased Joseph Kengel and reported in Schedule E thereof the transfer of the Library Park Hotel property as having been made within two years prior to the death of the decedent without a fair consideration in money or money's worth. The value of the property on the day of the death of the decedent as shown in the said return was $1,300,000. The Commissioner of Internal Revenue included in the gross estate of the decedent the aforesaid sum of $1,300,000 representing the value of the Library Park Hotel property, and the Security Trust Company duly paid the tax assessed thereon amounting to $93,994.35 to the proper collector of internal revenue by check dated March 2, 1925, which said check was duly indorsed by the collector of internal revenue and paid through the Detroit Clearing House on May 29, 1925. The Commissioner of Internal Revenue subsequently determined a deficiency in the tax of the estate of Joseph Kengel and made a further assessment by reason thereof in the sum of $5.58. The amount of said deficiency was paid to the collector of internal revenue by the Security Trust Company as administrator by check dated June 1, 1925, which check was duly indorsed by the collector of internal revenue and was paid through the Detroit Clearing House on June 6, 1925. In addition to the real estate valued at $1,300,000 reported by the Security Trust Company in Schedule E of its return for federal estate taxes as having been transferred by the decedent, the administrator reported other real estate located in the states of Michigan and Missouri valued at $66,184, stocks and bonds valued at $2,160.57, currency and certificates of deposit valued at $106,392.34 jointly owned, and other miscellaneous property valued at $15,248.93, $14,136.53 of which was a commercial bank account in the name of Joseph and Frank H. Kengel, and the remaining portion of which was in household effects, making a total gross estate of $1,489,985.84. The liabilities of the estate, including funeral, administrative expenses, and debts of the decedent, totaled $15,042.37.
8. On or about April 3, 1924, the decedent transferred to his son Frank by deeds certain parcels of land located in Claire, Otsego, and Crawford counties in the states of Michigan and Missouri, with instructions to distribute the same equally among his, the decedent's, grandchildren. On June 17, 1924, the grandchildren of the decedent brought a suit in chancery in the circuit court of Wayne county, Mich., against John A. Kengel and Frank H. Kengel and their respective wives to have inter alia the conveyance of certain lands described in the bill of complaint which had been made by the decedent to his sons, Frank and John, set aside. Among the conveyances which the grandchildren sought to have set aside were the deeds of the Library Park Hotel property. The defendants in that action, who are the plaintiffs herein, filed an answer thereto under oath admitting that the conveyances heretofore referred to as having been made on April 3, 1924, were made for the purpose of having those properties equally distributed among all of the heirs, and further admitting that the deeds of the Library Park Hotel property were signed and delivered by the decedent on May 12, 1924, instead of May 5, 1924, as recited in the deeds and in the acknowledgments thereto. The parties to the aforesaid action effected a settlement on December 12, 1924, of all the matters and differences involved in the said litigation whereby the decedent's grandchildren received a total sum of $575,000 in cash, together with certain real and personal property, and wherein it was further provided that the plaintiffs herein should pay all federal estate taxes and all state inheritance taxes assessed in respect to any of the property of the estate of the said Joseph Kengel. The plaintiffs, Frank and John Kengel, thereafter borrowed the additional money to effectuate the settlement with the grandchildren and turned it over to the Security Trust Company, who in turn made the distribution to the heirs contemplated in the settlement and agreement aforesaid, and the federal taxes to the collector of internal revenue. The entire amount of the federal tax came out of the distributive share of John and Frank Kengel and was paid with money supplied by it.
9. On November 24, 1928, the plaintiffs, John A. Kengel and Frank H. Kengel, as heirs at law of Joseph Kengel, deceased, filed with the Treasury Department through the collector of internal revenue at Detroit, Mich., an application for refund of all of said tax amounting to $93,994.35 paid by the Security Trust Company as aforesaid, on the ground that the said Library Park Hotel property should not have been included as a part of the decedent's gross estate because the transfer of that property was not made in contemplation of death. On or about August 6, 1928, the Commissioner of Internal Revenue rejected the said claim in its entirety.
10. The court finds as a fact that the deeds of Joseph Kengel to John A. and Frank H. Kengel for the Library Park Hotel property, herein mentioned and valued at $1,300,000 were made by said Joseph Kengel, deceased, in contemplation of death.
Richard B. Barker, of Washington, D.C. (David I. Hubar, of Detroit, Mich., on the brief), for plaintiffs.
Charles B. Rugg, Asst. Atty. Gen. (Joseph H. Sheppard and William T. Sabine, Jr., both of Washington, D.C., on the brief), for the United States.
Before BOOTH, Chief Justice, and GREEN, LITTLETON, WILLIAMS, and WHALEY, Judges.
On May 29, 1925, the plaintiffs paid to the Commissioner of Internal Revenue $93,994.35 federal estate taxes assessed by the commissioner against the estate of Joseph Kengel, deceased. On June 1, 1925, the plaintiffs paid a small deficiency assessment of $5.58. Of the total amount of estate taxes paid, $91,255.53 was assessed and paid because the commissioner included in the estate tax assessment the then value of certain real property in the city of Detroit deeded by the decedent to his two sons, John A. and Frank H. Kengel, on May 12, 1924, the property being valued at $1,300,000, the commissioner contending that decedent transferred said property to his sons in contemplation of death. This suit is for the recovery of the tax paid as above.
No jurisdictional question is involved. We cite the provisions of the Revenue Act applicable, as follows:
"Sec. 401. That, in lieu of the tax imposed by Title IV of the Revenue Act of 1918, a tax equal to the sum of the following percentages of the value of the net estate (determined as provided in section 403) is hereby imposed upon the transfer of the net estate of every decedent dying after the passage of this Act, whether a resident or nonresident of the United States: * * *
"10 per centum of the amount by which the net estate exceeds $1,000,000 and does not exceed $1,500,000. * * *
"Sec. 402. That the value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated — * * *
"(c) To the extent of any interest therein of which the decedent has at any time made a transfer, or with respect to which he has at any time created a trust, in contemplation of or intended to take effect in possession or enjoyment at or after his death (whether such transfer or trust is made or created before or after the passage of this Act), except in case of a bona fide sale for a fair consideration in money or money's worth. Any transfer of a material part of his property in the nature of a final disposition or distribution thereof, made by the decedent within two years prior to his death without such a consideration, shall, unless shown to the contrary, be deemed to have been made in contemplation of death within the meaning of this title." (Revenue Act of 1921, 42 Stat. 227, 277, 278.)
The Treasury Regulations in force and applicable are articles 17 and 18 of Regulations 63, and contain the following provisions:
"Art. 17. Nature and Time of Transfer. — A transfer made by the decedent at any time, and in any manner, is taxable when made in contemplation of or intended to take effect in possession or enjoyment at or after his death, provided it was not a bona fide sale for a fair consideration in money or money's worth. To constitute such a sale it must have been made in good faith, and the price must have been a fair equivalent, and reducible to a money value. * * *
"Art. 18. Nature of Transfer. — The words `in contemplation of death' do not mean, on the one hand, a general expectation of death such as all persons entertain, nor, on the other, is the meaning limited to an expectation of immediate death. A transfer, however, is made in contemplation of death wherever the person making it is influenced to do so by such an expectation of death, arising from bodily or mental conditions, as prompts persons to dispose of their property to those whom they deem proper objects of their bounty. Such a transfer is taxable, although the decedent parts absolutely and immediately with his title to and possession and enjoyment of the property. * * *"
The case is one of fact. United States v. Wells, 283 U.S. 102, 51 S. Ct. 446, 15 L. Ed. 867, and Heiner v. Donnan, 52 S. Ct. 358, 76 L. Ed. ___, decided by the Supreme Court March 21, 1932. It was said in the Wells Case: "It is apparent that there can be no precise delimitation of the transactions embraced within the conception of transfers in `contemplation of death,' as there can be none in relation to fraud, undue influence, due process of law, or other familiar legal concepts which are applicable to many varying circumstances. There is no escape from the necessity of carefully scrutinizing the circumstances of each case to detect the dominant motive of the donor in the light of his bodily and mental condition, and thus to give effect to the manifest purpose of the statute." Page 119 of 283 U.S. 51 S. Ct. 446, 452.
Joseph Kengel, a naturalized citizen of the United States, was born in Germany on August 15, 1831; he came to this country in his early twenties, taking up a permanent residence in Detroit, Mich., in the year 1854. A few years later he established in Detroit a carriage business and thereby laid the foundation of his subsequent fortune. In 1865 the decedent began to purchase real estate in the city and at the time of his death owned contiguous parcels of the same which came to be known as the Library Park Hotel property, valued at $1,300,000. Toward the development, care, and management of this property Mr. Kengel gave almost his exclusive attention, and in its ownership manifested conscious pride and concern. In 1895 Mrs. Kengel, the wife of the decedent, died at their home in Detroit, and soon thereafter Mr. Kengel retired from the carriage business and removed from Detroit to a country home he constructed on Lake St. Clair at Grosse Pointe, near Mt. Clemens, Mich., some twenty miles from Detroit. On May 31, 1924, Joseph Kengel died intestate at his country home, having attained the age of ninety-two years nine months and sixteen days. He left surviving him two sons, John A. Kengel, since deceased, and Frank H. Kengel, and certain grandchildren — children of a deceased son and daughter — as his heirs at law. Joseph Kengel, the plaintiffs' father, enjoyed remarkably good health; he was rarely ever ill, and his mental faculties remained unimpaired. He was active in the management of his business affairs, devoting much time thereto until within a few months of his death. On March 5, 1924, the decedent contracted a heavy cold which confined him to his house, an illness which at its beginning did not alarm him or his family. In a few days, however, his unimproved condition caused his housekeeper to call in a doctor to see him, and on March 9, 1924, the doctor found him in bed suffering from an inguinal hernia of the right side, as the physician then diagnosed the case, which, notwithstanding his enfeebled appearance and condition, the doctor did not regard as dangerous. On March 17, 1924, this same doctor called again and reported decedent's condition as not alarming. On March 29, 1924, the doctor reported his patient as suffering from bronchitis, weak heart, and severe pains in his left side, which because of his advanced age might prove serious. During the early days of April, 1924, the decedent's bronchitis improved but his physical condition indicated intense weakness, and he was confined to his bed continuously. On May 12, 1924, decedent's son Frank Kengel and an intimate friend, a Mr. Church, consulted two eminent surgeons, and the following day, accompanied by one of them, a Dr. Allen, drove out to his father's home. Dr. Allen found the decedent in a very serious condition, both physically and mentally, i.e., drowsiness and an indisposition to be disturbed characterized his mentality, and physically he was very weak. The doctor diagnosed his case as cancer of the stomach, an affliction which in the doctor's opinion had existed for at least six months and for which he could propose no remedy, saying he would probably not survive for more than two or three weeks.
Without going into additional details, it is sufficient at this point to observe that on May 31, 1924, Joseph Kengel died. On May 5, 1924, Frank Kengel caused two deeds to be drawn up, conveying to him and his brother, John A. Kengel, an undivided one-half interest in the Library Park Hotel property, the realty involved in this litigation. On the same day and date Frank Kengel, in company with Mr. Church, visited Joseph Kengel at his home to secure the execution of the deeds. Joseph Kengel, the father, declined at this time to sign the deeds, saying he wished a few days to think the matter over. While the record contains testimony contrary to the facts just stated and witnesses do fix the date of May 5, 1924, as the date when the deeds were finally executed, another witness, a trained nurse in charge on that date, fixes the same definitely, and this testimony is corroborated by a sworn answer filed by John A. and Frank Kengel in a chancery proceeding brought against them by the grandchildren of the decedent, in which the date May 5, 1924, is expressly fixed as stated in this opinion and May 12, 1924, given as the date of execution. In addition to this, the record indisputably establishes that the deeds were not executed on the date of the son's first visit to his father and that the father declined at first to sign them; and while the deeds bear a notarial acknowledgment as of May 5, 1924, they were not recorded until May 28, 1924, three days prior to the father's death, and we think from the record were in fact signed on May 12, 1924. The matter is not one of such vital importance as the plaintiffs accord it, for aside from all other facts there can be no doubt that the sons regarded the father on the date when the deeds were signed as rapidly approaching his demise.
Preceding May 12, 1924, and on April 3, 1924, at a time when Joseph Kengel was fatally ill, he transferred by deed to his son, Frank, certain other parcels of land located in the states of Michigan and Missouri, with instructions then given to Frank to distribute the lands deeded equally among his grandchildren, and in a court proceeding Frank A. Kengel admitted the above facts.
There can be no doubt that the relations between Joseph Kengel and his two sons were cordial, intimate, and confidential. The father had expressed a desire for his sons to have the Library Park Hotel property, and there is evidence in the record that he contemplated deeding it to them, but he never did so until his final illness, notwithstanding a man of his unusually advanced age, in full possession of his faculties, must have known and appreciated the seriousness of even slight illness. The way was open by either will or deed to accomplish his desire. It is abundantly proved that Joseph Kengel was a frugal and astute business man; he knew full well the value of property and the consequences which might follow his parting irrevocably with title to the same. Real estate constituted practically all his estate and during all the years of his long life he retained title to it in his own name, and as we view it must have appreciated what it meant to him to deed it to another; a transaction of such consequences to such an active, careful, and prudent man justifies the inference, to say the least, that the time had arrived when he confidently believed he would have no further use for it.
The findings, we think, accurately reflect the facts of the case. We will not discuss them in all their relationship to the transaction involved. It is sufficient to say that the deeding of the property included by the commissioner in the decedent's estate under the circumstances and at the time it was deeded exacts of the court the necessity, as was said in the Wells Case, supra, "of carefully scrutinizing the circumstances of each case to detect the dominant motive of the donor in the light of his bodily and mental condition." Subjecting the facts to the rule thus established, we find an unusually elderly man who all his life exerted a maximum of industry and intelligence in the acquirement of large and extremely valuable real estate holdings, maintaining watchful care in the management and control of the same by personal supervision, never parting with the title or making any disposition whatever of it during his life to his heirs, and finally, when over ninety-two years of age, fatally ill, confined to bed, and under the care of doctors, deeds to his sons realty constituting 86 per cent. of his entire estate, and to his grandchildren additional realty of a value not shown. This is, we think, clearly evidentiary that the transfers were made in contemplation of death, and that the "dominant motive" in thus without other consideration than love and affection in making said transfers was his consciousness that he was afflicted with a fatal malady. A man of the type and mental sturdiness of Joseph Kengel did not need to be told that he was fatally ill.
We think the petition should be dismissed. It is so ordered.