Brent v. McDonald

• Decision Date: 13 July 1956
• Docket Number: No. 40181,40181
• Citation: 180 Kan. 142,300 P.2d 396
• Parties: Pearl BRENT, Appellee, v. Alda McDONALD et al., Appellant.
• Court: Kansas Supreme Court

Page 396

300 P.2d 396

180 Kan. 142

Pearl BRENT, Appellee, v. Alda McDONALD et al., Appellant.

No. 40181.

Supreme Court of Kansas.

July 13, 1956.

Syllabus by the Court

1. Specifications of error, which are neither briefed nor argued, are regarded as abandoned and on appeal will not be reviewed or considered by the supreme court.

2. In ruling on a demurrer to the evidence an appellate court does not weigh

or compare contradictory evidence but accepts all evidence as true and gives it the benefit of all inferences that may properly be drawn therefrom, and considers only such portions thereof as are favorable to the party adducing it.

3. Family settlements are favorites of the law and when rights of creditors are not involved, will be enforced when unconnected with fraud or gross injustice and are freely and fairly entered into, and, when so made, are given a liberal construction and should not be disturbed by those who entered into them.

4. Beneficiaries under a will have the right and power to contract between themselves for distribution of their respective portions of the estate in a manner different from that provided in the will; and such an agreement containing the mutual promises of the contracting parties is based upon a sufficient consideration.

5. A family settlement freely and voluntarily entered into by an heir, devisee or legatee of a decedent on the supposition of a right, or of a doubtful right, is binding and enforceable between the parties to the agreement.

6. The failure to assert a claim in a family settlement to certain property, which is left in the possession of other heirs, devisees or legatees, may act as a relinquishment to the right, title and interest of such property.

7. When a family settlement is entered into in writing during the administration of a decedent's estate, the effect of which is to provide for a distribution of the estate in a manner different from that provided in the testator's will, it is necessary to have such agreement submitted to and approved by the probate court in order to obtain a decree of final settlement and an assignment of the real estate in accordance with its provisions.

8. Probate courts have exclusive jurisdiction of final settlement and distribution of decedents' estates, and pursuant to G.S.1949, 59-2249, are required to set forth in the final decree closing estates the nature and extent of the title which heirs, devisees or legatees acquire in real estate and assign the same to them by such decree.

9. When a family settlement was freely and voluntarily entered into in writing and presented to and approved by the probate court and found to be fair and equitable, a decree assigning title to real estate pursuant to such agreement to one of the parties as the owner of an undivided interest and such decree became final, another party who claimed to be the owner of such interest, but failed to assert a claim thereto in the family settlement or in the probate court, may not thereafter assert rights contrary to the decree of final settlement when such party stood by and did not assert such rights at the time of final settlement.

10. The record in a partition action considered, examined and held: That the trial court did not err (1) in overruling defendant's demurrer to plaintiff's evidence; (2) in making findings of fact and conclusions of law and rendering judgment decreeing plaintiff to be the owner of an undivided one-seventh interest in the real estate subject to a lien in favor of defendant in the sum of $1,041; and (3) in overruling defendant's motion for a new trial.

Wm. B. Ryan, Norton, argued the cause, and George P. Nellans, Norton, was with him on the briefs for appellant.

Keith G. Sebelius, of Norton, argued the cause and was on the briefs for appellee.

FATZER, Justice.

This was an action to partition 960 acres of real estate in Norton County. The parties were the heirs at law of Charles Lincoln Cooley, deceased, and children of deceased heirs at law. Pearl Brent, a daughter, was plaintiff and is the appellee. Alda McDonald, a daughter, was the only defendant who made any defense, and is the appellant. There was no dispute as to the interests of the other parties defendant. Pearl Brent contended that she was the owner of an undivided one-seventh interest in the real estate pursuant to a judgment rendered by the district court of Norton County, Case No. 5398, and in accordance with a family settlement entered into October 20, 1943. Alda McDonald contended she was the owner of a two-sevenths interest in such property; one-seventh interest which she received pursuant to the family settlement and another one-seventh interest which she purchased in 1936. The trial court entered judgment that Pearl Brent was the owner of an undivided one-seventh interest in the real estate, and from this judgment Alda McDonald has appealed.

While this appeal was pending Pearl Brent died. The action was revived against the defendants in the names of her heirs at law. For the purpose of this opinion her heirs at law will be collectively referred to as Pearl Brent.

The facts so far as pertinent to this appeal may be summarized as follows: On March 25, 1932, Charles Lincoln Cooley died testate, a resident of Norton County, and the owner of the real estate involved. He was survived by his wife, Lillie Cooley, and their seven children: Pearl Brent, the plaintiff; Loretta Stockbridge; Lennie Evans; Alda McDonald, the principal defendant; Valda Knobel; Avis Craven; and, Charles S. Cooley. The testator's will was admitted to probate in Norton County May 5, 1932. He nominated his wife, Lillie Cooley, and his son, Charles S. Cooley, as executors and directed them to sell the personal property as soon as practicable and to divide the proceeds equally among his seven children.

The portion of the will pertinent to this controversy, reads:

'Fourth, I hereby direct that my wife Lillie Cooley of Logan, Norton County, Kansas, is to receive all of the net income derived from agriculture purposes from the land that I own and describe as follows, Section Fourteen (14) and the west half of Section Eleven (11), Lincoln Township, Norton County, Kansas, for ten years after my death, or until her death if she does not live for ten years after my death. At the end of ten years after my death I hereby direct that my land be sold and the proceeds of said sale be divided as follows, my wife Lillie Cooley is to receive Five Thousand Dollars ($5,000.00) in cash and the balance is to be equally divided between my seven children above named. If any one of them shall have died leaving issue, her or his share shall go to such issue, but if any one shall have died without issue her or his share shall be divided equally among those who survive. Any income what-so-ever derived from my land from oil purposes or other sources not here-to-fore mentioned is to be divided as follows, my wife Lillie Cooley above named is to receive one half of such income and the other half is to be divided equally between my seven children as it is received.'

Lillie Cooley elected to take under the testator's will. She died intestate December 21, 1933.

On May 18, 1932, The First State Bank of Alton commenced an action against Pearl Brent and J. J. Brent, her husband, in the district court of Norton County, to recover an indebtedness owed by the Brents, and attached a one-seventh interest in the real estate as belonging to Pearl Brent. This was case No. 5048. At that time the Brents were residents of the State of Iowa and service by publication was made upon them. On January 9, 1933, judgment was rendered against the Brents for $1,873, and the one-seventh interest of Pearl Brent in the real estate was ordered sold. On January 2, 1934, Pearl Brent's one-seventh interest was sold to The First State Bank of Alton, and redemption was fixed at eighteen months. On September 10, 1935, no redemption being made, a sheriff's deed was issued to The First State Bank of Osborne, the successor to the Alton bank, and was filed of record in Norton County September 11, 1935.

On September 17, 1935, The First State Bank of Osborne commenced an action in the district court of Norton County to partition the real estate devised by the testator's will. This was case No. 5398. All of the heirs at law of the decedent, except Pearl Brent, were made parties defendant including Charles S. Cooley, as executor. Pearl Brent asked for and received permission to intervene. Charles S. Cooley, individually and as executor, Alda McDonald and Valda Knobel were represented by L. H. Wilder, the attorney for the decedent's estate; defendants Loretta Stockbridge, Avis Craven and the intervenor, Pearl Brent, were represented by Mahin and Mahin of Smith Center. Answers of both groups of defendants were filed. The answer of Alda McDonald alleged that the will of the testator created an equitable conversion; that the Osborne bank had no title to such real estate by reason of any pretended sale thereof or other pretended proceedings, and had no interest therein at that time. Her prayer was that the Osborne bank be adjudged to have no interest in the real estate. Charles S. Cooley, as executor, filed a similar answer, and prayed that the Osborne bank be enjoined from making claims to such real estate and that the title be quieted. Almost identical answers were filed by defendants Loretta Stockbridge, Avis Craven and the intervenor, Pearl Brent. The Osborne bank filed a reply to the answers of the defendants.

On January 14, 1936, with the issues thus joined, trial was had by the court. When it appeared that a settlement of the controlversy might be effected, an adjournment was ordered for such purpose. On January 22, 1936, the parties filed a stipulation which recited that a settlement had been agreed upon, and requested that the action be dismissed with prejudice. Thereafter, and on March 10, 1936, all the parties appeared in court and...