31 P.2d 718 | Kan. | 1934
Lead Opinion
The opinion of the court was delivered by
This was an action for the recovery of real estate and to recover money.
The petition alleged that the father of plaintiff was induced by the Home State Bank and J. T. Fowler to make a will for the benefit of the bank on or about the 31st day of August, 1927; that this will provided for a life estate in all the property in question in the wife of testator and mother of plaintiff, Mary A. Ross, and that at her death thirty acres of the farm owned by testator should go to plaintiff in fee, and sixty acres should go to Arminta Kauble, the daughter of testator and sister of plaintiff, in fee, subject to a mortgage of $1,000. The petition further alleged that after the execution of the will Ephraim Ross and Mary Ross became dissatisfied with the will and made an agreement with plaintiff about September 21, 1927, to the effect that if he would move onto the thirty acres of
To this petition the Home State Bank, J. T. Fowler and the Crawford County Retailers Association answered admitting that Ephraim Ross, on or about August 31, 1917, executed a will, and admitting that the will was written by defendant Fowler, but denying that Ross was persuaded by Fowler to make the will. The answer alleged that by the terms of the will all of the property of Ephraim Ross went to Mary Ross for life, with specific power in Mary Ross that she might use, mortgage, sell or convey any part of this property and at the time of her death the remainder, if there was any, to go to plaintiff and defendant, Arminta Kauble. The answer further alleged that the will of Ephraim Ross was admitted to probate on August 27, 1929, and that plaintiff had not since the will was probated and prior to the filing of the petition in this case contested this will.
C. C. Warlop, Archie Mossom, Mary A. Ross, Arminta Kauble, Florence Gaffney and Joseph Davenport filed general denials.
The case had been set for trial at the special instance of the plaintiff for April 17, 1933. Plaintiff claims that his counsel received a copy of an amended answer of Mary A. Ross and Arminta Kauble on April 13, 1933, through the mail, and that he presumed on that account the case would not be at issue on April 19 and hence
When the case came on to be heard on April 18 plaintiff dismissed his action without prejudice as to any future action against all the defendants except Mary Ross and Arminta Kauble. The result of this was to take the conspiracy feature out of the case and leave as the only issue to be tried the question of whether plaintiff was entitled to the possession of the thirty acres of real estate under the contract which he claimed to have with his father and mother, or whether his mother was entitled to a life estate in it with the power to dispose of it during her lifetime if she saw fit.
The action was one in which the parties would not be entitled to a jury as a matter of right. A jury was impaneled, however. Its function was to act in an advisory capacity to the trial court.
The evidence on the part of plaintiff was about as follows: Plaintiff-asked for a continuance on account of the illness of his wife. This continuance was denied, and the affidavit of what she would testify to was introduced as her evidence. With reference to the contract, the affidavit was as follows:
“That the said defendant, Mary A. Ross and Ephraim Ross, her deceased husband, came to the home of affiant and his wife, on several different occasions, and that said Ephraim Ross stated to affiant and to the witness, Mary G. Ross, that he, the said Ephraim Ross, desired plaintiff and his wife to move to the home of the said Ephraim Ross and to look after and take care of said Ephraim Ross so long as he should live, and also to look after and take care of Mary A. Ross; that in said several conversations the said Ephraim Ross said that if affiant and his wife would do this that the farm consisting of thirty acres, and described in plaintiff’s petition should become the absolute property of the said plaintiff upon the death of said Ephraim Ross; that in these several conversations it was agreed between the said Ephraim Ross and the plaintiff that if the said plaintiff and his wife would move to the place, as aforesaid, he should have free of rent a four-acre truck patch, should pay the taxes on the place and give to the said Ephraim Ross, while he lived, one-fourth of the crops raised on the remainder of said thirty acres.”
It will be noted that the contract testified to by Mrs. Ross was somewhat more favorable to plaintiff than was pleaded by plaintiff in that the petition alleged that plaintiff was to take care of Ephraim
Plaintiff testified as follows:
“Q. Well, what were you to get during the old gentleman’s lifetime? A. I was to get the use of four acres of ground, have a garden patch, and tend to whatever ground I could, and get- a fourth of the crop, and I was to pay the taxes.
“Q. Did you do that? A. I paid most of the taxes.
“Q. Was there any reason why you didn’t pay them? A. Yes, sir.
“Q. Tell the jury what it was. A. Because our father had sold Arminta Eauble a house and she agreed to pay $250. She refused to do so, refused him to do so, after the house was moved on her sixty acres. And he said if she wouldn’t be fair and pay for the house he would equalize it among his children and give $2.50 and that would be $30 a year.
“Q. That was the least he allowed you on the taxes?
“Mr. Von Schriltz: Objected to as assuming.
“Q. Go ahead and tell the rest of it.
“(Witness does not answer.)”
The witness further testified that he carried out the agreement except that he did not pay all the taxes; his mother stayed about eighteen months; she left because she had to, to get anything from the sixty acres where the sister lived; she went to live with the sister; the mother was welcome to come back any time; after the father’s death he considered that his place; the year he was put off the place he intended to make $1,410 farming the thirty acres; the first year he lived there he paid his parents a fourth of what he raised, except that from his four acres; on the second day of March the mother told him she wanted him to stay right there and do just like she had told him before.
On cross-examination the witness testified that he paid a fourth of his corn for rent the first year. It seemed like it was eighteen or twenty bushels. No testimony as to what he paid the second year. The third year he paid twenty bushels of corn. The fourth year he paid nothing.
At the close of the plaintiff’s case the court sustained a demurrer to the evidence. This is an equity action to enforce an oral contract for the conveyance of real estate. Of this class of cases the court said in Laupheimer v. Buck, 135 Kan. 631, 11 P. 2d 721:
“This case is of that class in which trial courts are called upon to examine with care the evidence offered to sustain the contract relied upon. This court,*321 and others, have frequently so ruled. (Cathcart v. Myers, 97 Kan. 727, 732, 156 Pac. 751; James v. Lane, 103 Kan. 540, 549, 175 Pac. 387.) Where the evidence to establish the parol contract relied upon consists of the testimony of plaintiff and his near relatives and immediate friends there is all the inore reason for careful scrutiny. Some courts have ruled that the testimony must come from disinterested witnesses. (Andrews v. Aikens, 44 Ida. 797, 260 Pac. 423.)” (p. 637.)
In Woltz v. First Trust Company, 135 Kan. 253, 9 P. 2d 665, this court, in considering a similar case, said:
“In order to sustain his right to recover plaintiff must plead and show that there was a contract and compliance therewith on his part under which, in equity and good conscience, he should possess and enjoy the property sought, as against those who would otherwise be entitled to it. ‘The contract is the foundation of plaintiff’s right to recover.’ (Dreher v. Brumgardt, 113 Kan. 321, 214 Pac. 419.) It is essential that the contract be clearly established, that there has been performance on the part of the promisee, and that the claim is equitable.” (p. 259.)
The consideration of such a question rests in sound judicial discretion. The jury was acting only in an advisory capacity. The court was not obliged to believe the testimony of any witness simply because it was uncontradicted. (See Weber Implement & A. Co. v. Dubach, 132 Kan. 309, 295 Pac. 979; also, Sharp v. Losee, 109 Kan. 211, 199 Pac. 94; and Peoples National Bank v. Diven, 135 Kan. 400, 110 P. 2d 883.) ”
Since the jury was acting in an advisory capacity only, the duty of weighing the evidence devolved upon the trial court. From the conclusion-reached the trial court evidently did not believe the testimony of plaintiff and his wife, or did not believe that the contract testified to was one which equity should enforce, or did not think that even if the evidence of plaintiff and wife were true as to what was done by them that such constituted sufficient performance of the contract as to warrant a decree ordering performance.
In the event any of these conclusions were reached the court was not bound to wait until the defense had put on its evidence but could conclude the case at the end of the evidence of plaintiff.
As we view the record we have concluded that the court would have been justified in reaching any or all of the above conclusions.
It will be noted that the contract pleaded was that plaintiff was to move onto the place and take care of his mother and father as long as either one should live, and then plaintiff was to get the place. The affidavit of the wife was that plaintiff was to get the place as soon as the father died. The testimony of plaintiff was to the same
Then the proof that the contract was performed is highly unsatisfactory. The nonpayment of taxes is excusable under the testimony of the parties, although the court may not have believed the testimony as to the excuse. The plaintiff himself testified that he did not pay the rent for the fourth year that he lived on the place. He did not testify at all as to how much he paid the second year and said his father demanded twenty bushels of corn the third year when his father died in May of that year. Even had the court believed the testimony of plaintiff, performance of a contract to convey real estate could not have been ordered based upon such evidence as to performance.
The plaintiff makes the further point that the trial court was wrong in giving him only twenty-four hours continuance -in order to prepare the conspiracy part of his case for trial. The record discloses that the case was set for trial on the 13th day of April, 1933, at the request of plaintiff. It appears he had ample notice that defendants expected to go to trial on that day. Trial courts have a wide discretion in the matter of continuances. Under all the circumstances we cannot say the action of the court in this case was an abuse of discretion. There are other errors urged by plaintiff, but in view of the conclusion that we have reached as to the showing made by plaintiff it is not deemed necessary to discuss them.
The judgment of the trial court is affirmed.
Concurrence Opinion
(concurring specially): I concur in the conclusion that the case should be affirmed, and in all that is said in the majority opinion, but think there is a further ground upon which the judgment should be affirmed. I am of the opinion that the suit was one to contest a will, and that it was barred by R. S. 1933 Supp. 22-223.
“Third, I give, devise and bequeath to my beloved wife, Mary A. Ross, all of my property both real and personal, which I may die in possession of, for her use and benefit with full power to sell and dispose of any or all of it as she may see fit to do, and that her action shall be absolute. Should my wife die in possession of my property that I now have it is my will and desire that it be divided as follows,
“To my son William B. Ross, the east three-fourths (94) of the southeast (¼) of the southeast quarter (¼) in section 26, township 27, range 25, Crawford county, Kansas.
“To my daughter Arminta Kauble, the southwest quarter of the southwest quarter, and the west half of the southeast quarter of the southwest quarter all in section 25, township 27, range 25, Crawford county, Kansas.”
The theory of plaintiff is that the action is one to enforce a contract to convey real estate in return for services rendered where the cantract has been fully performed on the part of the party seeking the conveyance. The defendant argues that the action is one to set aside a will, and that the action is barred by R. S. 1933 Supp. 22-223. That section is as follows:
“The mode of contesting a will after probate, or an order of the court refusing to probate the will shall be by civil action in the district court of the county in which the will was admitted to probate or the order of the court refusing to probate was made, which action may be brought at any time within one year after the probate, or the order of the court refusing to probate the will, and not afterwards.”
We have seen that the will of Ephraim Ross was probated August 27, 1929. This action was filed May 2, 1932. More than two years had elapsed after the probating of the will before this suit was filed. We have to consider then whether the action brought was covered by the terms of R. S. 1933 Supp. 22-223.
Interpreting the will of Ephraim Ross, it is plain that Mary Ross took a life interest in the real estate in question with an added power to sell and convey, and that the children took vested remainders in the tracts devised to them, which interests are subject to be divested upon execution of the power by their mother. (See Postlethwaite v. Edson, 98 Kan. 444, 155 Pac. 822.) That is, if the will is given effect defendant, Mary A. Ross, had the right to possession of the real estate in question during her lifetime, and she had the further right to dispose of it, which right continued as long as she lived. If plaintiff should prevail in this action, he would have the right to immediate possession of the thirty acres, subject only to
Under such circumstances I hold that the action is one to contest a will. The plaintiff argues that the will was only mentioned in his petition for the purpose of showing some of the acts of the conspiracy alleged, and that he was relying wholly on the contract. The trouble with that argument is plaintiff makes the following statement in his argument: “It is appellant’s contention that his father in his lifetime abrogated the will in making the agreement with appellant.” An attempt to substantiate such an argument is certainly an attempt to contest a will, no matter by what name it is called. This question arises many times where a will has a provision that if a devisee contests a will he shall lose what has been devised to him. Such a case is Moran v. Moran, 144 Ia. 451, 123 N. W. 202. It was said:
“An attempt to assert title to property embraced in testator’s will, under an independent title, is within a provision forfeiting the share of one who contests the will, if its success would effectually upset and destroy the whole plan which testator had formed for the disposition of his estate.” (30 L. R. A., n. s., 898, headnote 4.)
This action was brought by the children of testator by his first wife and charged that a farm which testator had left his second wife was in reality the property of his first wife, and on that account the testator had no right to devise it to anybody. The theory of the action was that the title to the farm was in plaintiffs by inheritance from their mother.
The court held against them in that action and in a subsequent action held the former suit was in reality an action to contest the will, and under a clause in the will which provided that any of the legatees named in the will who should contest it should thereby forfeit their right to any portion of the estate, the plaintiffs in the original suit had thereby forfeited their rights under the will. The point upon which this and similar cases turn is whether the result sought in the action would be to upset the plan of the testator for disposing of the estate.
In the case at bar it was evidently the intention of the testator in making his will to leave his real estate in such shape that his wife could do with it whatever she deemed to her own best interests. The plaintiff and his sister were to have, at her death, whatever she had not seen fit to use during her lifetime. Manifestly the pres
