Braden v. Neal
| Decision Date | 07 February 1931 |
| Docket Number | 29,727 |
| Citation | 132 Kan. 387,295 P. 678 |
| Parties | JAMES E. BRADEN et al., Appellants, v. WILLIAM S. NEAL et al. Appellees |
| Court | Kansas Supreme Court |
Decided January, 1931.
Appeal from Kiowa district court; KARL MILLER, judge.
Judgment reversed and cause remanded.
SYLLABUS BY THE COURT.
WILLS--Contract to Devise--Action for Breach. The amended petition considered in an action by beneficiaries of an oral contract to leave a will, to enforce the contract and to set aside a deed and will in contravention of the contract, and held, plaintiffs had capacity to sue, causes of action were not misjoined, and the pleading stated facts sufficient to constitute a cause of action.
C. E Vance, Clifford R. Hope and A. M. Fleming, all of Garden City, for the appellants.
O. G. Underwood, of Greensburg, for the appellees.
The action was one by beneficiaries of an oral contract to make a will, to enforce the contract and to remove obstructions to enforcement. Demurrers to the amended petition were sustained, and plaintiffs appeal.
W. J. Kessinger and his wife, Lapatete Kessinger, had no children. On the death of one, the survivor would inherit the property of the decedent. Each one had collateral relatives. Mr. and Mrs. Kessinger agreed orally that during their joint lives neither would make a will, and that the survivor would make a will disposing of whatever property the survivor might leave, in a manner which was agreed to. He was a Mason, and $ 1,000 was to be given to the Masonic home at Wichita. She was a member of the Christian church, and $ 1,000 was to be given to the First Christian Church of Greensburg. The remainder of the estate was to be divided between his relatives and her relatives.
Mr. Kessinger died first. Relying on the contract with his wife, he made no will. Shortly after his death Mrs. Kessinger made a will according to the contract. Some five years later Mrs. Kessinger destroyed her will and made another which violated the terms of the contract with her husband. The bequests to the Masonic home and the Christian church were reduced to $ 500 each, some specific bequests aggregating $ 4,000 were made, and the residue of the personal property, appraised at approximately $ 24,000, was given to William S. Neal, who was Mrs. Kessinger's brother. On the day the second will was made Mrs. Kessinger conveyed to Neal her real estate, appraised at $ 10,400. The second will was admitted to probate on June 25, 1928, and executors named in the will were appointed, and qualified.
Plaintiffs were beneficiaries under the probated will. They were also beneficiaries of the contract between Mr. and Mrs. Kessinger, and on June 20, 1929, plaintiffs commenced an action to enforce the contract, and to set aside the probated will and the deed. The plaintiffs were children of a brother and of a sister of Mr. Kessinger, a brother of Mrs. Kessinger, and children of a brother and of a sister of Mrs. Kessinger. The defendants were William S. Neal, the Christian church, and the executors of the probated will. Because of some undisclosed arrangement, the Masonic home was no longer interested.
The petition pleaded the facts which have been narrated, and alleged that, while Mrs. Kessinger was suffering great agony caused by a fatal disease, and was weakened in body and mind and not in control of her faculties, she was induced, through fraud and undue influence, to make the probated will, and was induced to make the deed to William S. Neal through his fraud and undue influence. Defendants demurred to the petition, and the demurrer was sustained on September 10, 1929, but plaintiffs were given leave to file an amended petition.
An amended petition was filed on September 23, 1929. The amended petition did not vary in substance from the original petition. The parties were the same; although there was some elaboration of details, the foundation for relief was the same; and the relief prayed for was the same. The form of the pleading was changed. The amended petition was divided into two causes of action. The first cause of action pleaded the contract, compliance with the contract on the part of Mr. Kessinger, the first will, the second will, probate of the second will and appointment of executors, and the deed to William S. Neal. It was alleged that Neal took his deed with full knowledge of the oral contract between Mr. and Mrs. Kessinger, and the first cause of action concluded as follows:
"That neither said will nor said deed has any force or effect as against said oral contract so made and entered into between said W. J. Kessinger and said Lapatete E. Kessinger, and that these plaintiffs are entitled to specific performance of said oral contract and for such other relief as shall be proper."
The second cause of action made the first cause of action a part of the second cause of action, and pleaded with more fullness than before the incapacity of Mrs. Kessinger, and the fraud and undue influence practiced on her, resulting in execution of the deed and the probated will. The second cause of action concluded as follows:
Neal and the executors filed demurrers to each cause of action, on three grounds: Plaintiffs have no legal capacity to sue; misjoinder of causes of action; and failure to state facts sufficient to constitute a cause of action. The demurrers were not based on the fact that the first and second counts were misjoined. The Christian church did not demur or answer.
The action is founded on an oral contract between Mr. and Mrs. Kessinger, the nature of which has been described. Defendants contend there was no consideration for the contract. There were mutual promises, fully performed on the side of Mr. Kessinger. The right of Mr. Kessinger to will half of his property to others than his wife was a valuable right. He promised her to forego that right, and did so. At his death, Mrs. Kessinger received the benefit of his relinquishment, and the contract was binding on her under any theory of consideration.
Defendants contend the contract was unenforceable because of the statute of frauds. The contract was such that it might have been fully performed within a year; it...
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