150 P.2d 343 | Kan. | 1944
The opinion of the court was delivered by
This was a proceeding to establish, and specifically perform, an oral contract under which the claimant Susie Bond asserts a right to all of the property owned by the decedent at the time of his death. The trial court sustained a demurrer to the claimant’s evidence and rendered judgment disallowing such claim. The claimant appeals.
Preliminary to a statement of the facts pertinent to the main issue a chronological narrative of the events responsible for their existence will be helpful.
“That as to the following described real estate in Shawnee County, Kansas, to-wit: The south half of southwest quarter of Section 33, Township 12, Range 16, being the land mentioned in said stipulation as held in the name of the defendant and located near Pauline, Shawnee County, Kansas, the said plaintiff and defendant shall each be entitled to and have free from the claims of the other, a life estate in and to an undivided one-half of said real estate, with remainder to Edna Johnson, daughter of plaintiff and defendant; and that the said Edna Johnson shall have the right to the exclusive use, occupancy and possession of said real estate during said life estates, as long as she may desire to use and occupy said land, and said defendant may assist her in such use and possession by overseeing and advising in the operation of said land.”
Subsequent to the divorce action Mrs. Bond resided at Overbrooli and later in Topeka where, except for a short period presently referred to, she lived on all dates involved herein. For a time Edna Johnson and her husband lived on the land referred to but for reasons herein inconsequential moved away and Mr. Bond, who had been living with them, continued to occupy it as his home until the date of his death. On March 16, 1931, the claimant procured a. judgment against Mr. Bond in Shawnee county for $425.45 based on his improper action in selling her share of crops grown on the farm and some of the buildings located thereon. From that date, and perhaps before, up to August, 1936, on intermittent intervals she made trips to the farm. On some of those occasions and particularly throughout the year 1934, Verne Johnson, who was either separated or divorced from Edna during all that time and yet remained on friendly terms with both Mr. and Mrs. Bond, would take the latter out to the place and while there
Turning now to matters germane to the principal question involved the record discloses the following facts and proceedings: On October 21, 1943, after institution of proceedings for the administration of the estate of H. G. Bond, deceased, the claimant filed a petition for allowance of her demand against his estate wherein she claimed his entire estate and alleged she was entitled thereto by reason of the fact that in the spring of 1934 she entered into an oral contract with decedent, thereafter fully performed by her, whereby in consideration of the cancellation of her judgment heretofore referred to and care of decedent for the balance of his life, he would leave her all of his property at his death. Subsequently Rosa Elva Trent, a sister of decedent and the appellee herein, filed an answer, the allegations of which so far as they are pertinent to the issues here, denied generally the existence of any valid contract between claimant and the decedent or that she had any right, title or interest in and to his property on the date of his death. On the issues thus joined a hearing was had in the probate court on the demand and it was allowed. In due time, Mrs. Trent appealed to the district court, where a demurrer to the evidence produced by the claimant in support of her demand was sustained, and a judgment was rendered disallowing her claim and remanding the cause back to the probate court with instructions to disallow it and render judgment in favor of Mrs. Trent for the costs incurred by her in the appeal to district court. It is from that judgment the appeal is taken.
On the trial in district court the only competent testimony produced by the appellant with respect to the terms of the oral agree
Direct Examination:
“Q. Who said that? A. Mr. Bond. He said he would have to have help, and wanted her to come out and do the work and chores and cook for him and such as that. There was too much for him to do. The conversation that I heard was if she would release the claim that she had against him and come out and run the farm, or help run the farm, cook for him and take care of him he would leave everything to her at his death and then at her death it would — the daughter was to get it.
“Q. What did she say to that? A. She said at that time she couldn’t right now because she had bills to pay, but she would later, and he told her whatever she had to do to pay her bills that would be OK, she could work and come out later, and she said she would do that. So she went out later.”
Cross-examination:
“Q. You say there was something said about releasing a judgment on that day? A. Yes. That was Mr. Bond asked her to release the judgment and for her to come out and help take care of the farm and everything, cook his meals and take care of him, and—
“Q. I am just asking you—
“Mr. Crane: Let him finish his answer. Don’t shut him off.
“A. He said if she would take care of him and help run the farm and cook his meals, at his death he would leave everything to her if she would release this judgment, and then at the time of her death she could leave it to her daughter.
“Q. What, if anything, was said between them on that occasion about when she was to come out? A. There was no particular time set on that. It was to be some time later, but there was no particular time set on it.
“Q. Did he say she could come out any time? A. Not just any time, but she said she had some bills of her own she would have to pay and would have to work at this job for some time and she said she would come out later, as soon as she got that taken care of. He said that would be O. K.”
The appellee’s demurrer was predicated on (1) variance between the contract as pleaded and proved; (2) the agreement was not definite and certain; (3) no clear and satisfactory proof any contract was made; and (4) no showing services of Mrs. Bond were performed pursuant to the terms of any contract. Notwithstanding, the trial court limited the scope of its ruling when in a memorandum announcing its decision it made the following statement:
“Other evidence disclosed that as far as the farm was concerned the decedent and claimant each owned an undivided half interest in a life estate in the farm. The remainder of the estate was owned by the daughter. A fair construction to be put upon the testimony of the witness Johnson leaves a doubt in my mind as to the identity of the property which was to be left to the claimant upon the death of H. G. Bond. It was the burden of the claimant to identify the property to be received by claimant by clear and convincing proof. To me the evidence of the witness Johnson is subject to two constructions — one that they were talking about the whole of the decedent’s estate, the other that they were talking about the possession of the farm and all things incident to that possession. The rule that the most favorable construction be placed upon claimant’s evidence as against a demurrer should not apply where the burden is on the claimant to prove the existence of the contract, all of its terms and the property involved, by clear and convincing proof. The evidence' does not make me sure as to what property they were talking about that the claimant was to get. These were my reasons for sustaining the demurrer to claimant’s evidence, and they are my reasons now for overruling the motion for new trial and for overruling the motion to set aside the order sustaining the demurrer.”
It is apparent from the language just quoted the -trial court in reaching its conclusion was required to and did weigh the evidence adduced by appellant. Such action on consideration of a demurrer to the evidence is in our opinion clearly erroneous. This court in a long line of well-considered decisions has established the rule that in ruling on a demurrer to the evidence courts do not weigh the evi
The judgment sustaining the demurrer to the evidence is reversed and the cause is remanded for further proceedings consistent herewith.