Howard v. Howard

52 Kan. 469 | Kan. | 1893

The opinion of the court was delivered by

JOHNSTON, J.:

By the stipulation of the parties, two cases which raised substantially the same issues were merged and tried as one action. The rulings of the court upon preliminary questions in the first of these, known as the Clark case, have thereby become immaterial, and no error .can be predicated thereon. The question so much argued by counsel for plaintiff as to the inconsistencies in defendant’s testimony, and as to where the preponderance is, cannot be considered in this court. We cannot weigh the conflicting evidence introduced, nor go further than to examine whether that offered by defendant tends to sustain the findings and judgment of the court.

1. Under Kansas statutes, a trust resulted. We have no hesitancy in holding that there is abundant evidence to sustain every material issue and finding in the case. It is clear that when Doctor Howard was married to the defendant, he had little, if any, property or money, and that what he has since used or invested was obtained from her. She had property and interests, derived from the estate of a former husband, amounting to about $50,000, which she intrusted to Doctor Howard for management, and the title to her real estate was conveyed to and held by him in trust for her. It is contended that the trust was not created in the manner prescribed by the Illinois statute, and hence could not be enforced, but the question of whether it is enforceable or not has become immaterial. The Illinois real estate was converted into money, which was paid to and taken possession of by Mrs. Howard as her own. It appears that there remained of the estate at that time only about $12,000 or $13,000. Several thousand dollars of this amount were never in the possession of her husband. This money was admitted by Doctor Howard to be her own. She carried it upon her person, and brought it to Kansas, where it was invested in the real estate which is the subject of controversy in this proceeding. After the remaining portion of her property, which had been intrusted to the control and management of Doctor Howard, was converted into money and paid over to her, the trust was to that extent executed, and the statute of Illinois respecting the creation and enforcement of trusts can have no application. The testimony shows clearly enough that the money which was invested in the Clark land was obtained from the defendant. The understanding, as she testifies, was that the mortgage and deed executed by the Clarks for the money thus advanced should be executed to her, and she believed, until after Doctor Howard’s death, that the land had been conveyed to her. As the whole of the con- . , , , •, 11, sideration was paid by her and an absolute con±t J veyance taken in the name of Doctor Howard without her consent, a trust results in her favor. (Kennedy v. Taylor, 20 Kas. 558; English v. Law, 27 id. 242; Mosteller v. Mosteller, 40 id. 658; Barlow v. Barlow, 47 id. 676; Gen. Stat. of 1889, ¶ 7166.)

3‘ fcrmüiftea by counsel. The second objection is, that the findings made by the court were prepared by the attorneys for defendant. There is nothing substantial in this objection. The court first announced its decision orally, and written findings of fact and conclusions of law being desired, the attorneys for defendant, at the suggestion of the court, formulated and presented them to the court. It is not an uncommon practice for the attorneys of the respective parties to formulate such findings as they desire to have made, leaving the court to adopt them, or such of them as in its judgment have been established by the proofs. The findings presented ^ o it to the court in this case were adopted by the court as its own, and the fact that they were formulated by counsel is no ground for criticism or objection.

■ 4' ttcliew_pra°’ It is next claimed, that the testimony of defendant should have been disregarded, as some of it concerned transactions and communications had with her deceased husband. It appears from the record that quite an extended examination was made and history of the ease given before an objection of any kind was made by the plaintiff. The objection which was made was not specific, and did not state that the objection to the communication or transaction was because the plaintiff was the heir at law of the deceased person- Objections to testimony should be distinctly pointed out, in order that the court may rule intelligently upon them, and unless this is done they are not entitled to consideration here. More than this, the plaintiff entered upon an exhaustive and detailed examination of the defendant as to her courtship with Doctor Howard, and most of the communications and transactions had between them during the continuance of their married lives were called out by the plaintiff. Under the circumstances, we think the objection now made comes too late, and that no prejudicial error was committed.

2-conveyance, The objection to the testimony of Grover cannot be sustained. The defendant was entitled to show by parol proof the facts and circumstances from which the trust resulted, notwithstanding it contradicted the terms of the conveyance or deed wrongfully made by Clark to Doctor Howard. (Marsh v. Davis, 33 Kas. 326.)

The exclusion of the hearsay testimony proposed to be shown by Heath in favor of the plaintiff was not erroneous. There are other objections, but they are deemed immaterial, and require no comment.

We think the court reached a just and correct conclusion, and we find no substantial grounds for the complaints that have been made against its rulings. The judgment will be affirmed.

All the Justices concurring.