Carlson's Estates, In re
| Decision Date | 13 July 1968 |
| Docket Number | No. 45100,45100 |
| Citation | 201 Kan. 635,443 P.2d 339 |
| Parties | In the Matter of the ESTATES of C. V. CARLSON, Deceased, and Emma Carlson, Deceased; and in the Matter of the Partnership Estate of Victor Carlson, Deceased, and Elmer Carlson, Surviving Partner. Leslie L. NEEDHAM, Administrator with Will Annexed of C. V. Carlson Estate and Administrator of Emma Carlson Estate, Appellant, v. Elmer CARLSON and Viola Garver, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. An estate in joint tenancy in personal property may be created between two or more persons by an oral contract.
2. A joint tenancy exists where a single estate in property, real or personal, is owned by two or more persons, under one instrument or act of the parties. The grand incident of joint tenancy is survivorship, by which the entire tenancy on the decease of any joint tenant remains to the survivors, and at length to the last survivor.
3. The existence of a confidential relationship between persons does not, as a matter of law, operate to bar the right of the beneficiary to enter into contracts or to receive a gift. If the person who conferred the benefit was at the time of sound mind and clearly understood the transaction, and executed a free will in the act, being under no restraint or undue influence, and, where the evidence requires it, there was adequate consideration, the transaction will be sustained.
4. Courts view with suspicion gifts or contracts between parties occupying a confidential or fiduciary relationship and will scrutinize them closely and rescind or cancel them unless the one claiming thereunder shows by convincing evidence there was no restraint, overreaching, or undue influence, and that there was good faith on his part.
5. The requirement of independent advice is designed to provide assurance that the aged or infirm or otherwise dependent person conferring the benefit knew what he was doing and did it of his own free act and will, and to see that no undue advantage was taken of him.
6. The rule of independent advice is applicable only under circumstances where the evidence warrants it. Our decisions do not require application of the rule where the beneficiary or party upon whom is cast the burden of proof presents substantial evidence that the gift, deed or contract was made in good faith, not induced by undue influence, and for a valuable consideration. (Following Jernberg v. Evangelical Lutheran Bethany Home for the Aged, 156 Kan. 167, 131 p.2d 691.)
7. The supreme court adheres to the rule prescribed in K.S.A. 60-404, and has consistently held that objections to the admissibility of evidence will not for the first time be considered on appeal in the absence of timely objection made thereto.
8. The record in an action by an administrator of two decedents' estates brought against the defendants and heirs at law of the decedents, to set aside transfers of personal property, two bills of sale, and a deed conveying three quarter sections of land, upon the alleged grounds that the defendants occupied a confidential relationship with the decedents and that the transfers and conveyances of property were made without independent advice; without consideration, and as a result of undue influence of the defendants, is examined, and it is held: The record contains substantial evidence which amply supports the district court's findings of fact, and its conclusions of law are embraced in and buttressed by its findings of fact which sustains the judgment rendered for the defendants. It is further held that under the circumstances disclosed, the district court did not err in holding the defendant Elmer Carlson was not under the duty of showing the decedents had independent advice at the time on oral contract creating a joint tenancy in personal property with right of survivorship was entered into in 1954.
Elmo Lund, Oberlin, argued the cause, and L. F. Cushenbery and W. H. Hayes, Oberlin, with him on brief for appellant.
Marion W. Chipman, Olathe, argued the cause, and Robert Lewis, Sr. and Robert Lewis, Jr., Atwood, with him on brief for appellees.
The actions involved in this appeal were brought by the administrator of the estates of Victor Carlson, deceased, also known as C. V. Carlson, and Emma Carlson, deceased, against the defendants, Elmer Carlson and Viola Garver, the son and a daughter of the decedents, to bring property back into the estates of the decedents, which, it was alleged, the defendants had caused to be transferred to their names during the lifetime or their mother and father. Three of the cases sought relief upon the grounds that the decedents were incompetent and of unsound mind at the time of the alleged transfers; that the defendants had forged the decedents' names to various documents conveying title to the defendants; that each defendant occupied a confidential and fiduciary relationship with the decedents, and that the transfers and conveyances of property were made without independent advice, without consideration, and as a result of undue influence of the defendants.
The plaintiff, as administrator of both decedents' estates, is referred to as the plaintiff; Victor Carlson, also known as C. V. Carlson, is referred to as Victor; Emma Carlson is referred to as Emma; Elmer Carlson is referred to as Elmer, and Viola Garver is referred to as Viola.
This case involves a young Swedish immigrant who married a Kansas girl and raised a family on a homestead in Rawlins County. Victor was born in Sweden in 1872 and came to America as a young man. Emma, who later married Victor, was born in 1886. Victor homesteaded and obtained a patent to a quarter section of land referred to as the home place, in 1905. In 1907 he purchased another quarter section of land called the 'Call' land of which about 100 acres was tillable. Victor and Emma had five children; one son, Elmer, and four daughters, one of whom is the defendant Viola.
In 1948 Victor had his will prepared by his attorney, Lyloyd Vieux, now deceased, who practiced law at Atwood. By the terms of his will, Emma was devised and bequeathed 1/2 of all the testator's property; Elmer was bequeathed $100, and the balance of his estate was devised and bequeathed 1/8th to each of his four daughters. The will provided, in part:
Victor was 90 years of age when he died testate on April 8, 1963. His will was admitted to probate in Rawlins County, and its validity has never been questioned. About three months later, on July 20, 1963, Emma died intestate at the age of 77 years and her estate was duly probated in Rawlins County.
Elmer lived with his parents on the home place until their death. Viola had married, but in 1950 she obtained a divorce, and she and her young daughter, Jeanne Anne Garver, moved back to the home place and lived with her parents until their death. Viola paid no board and room or similar expenses.
At a pretrial conference which included many stipulations of the parties and admissions by the defendants, the district court ruled that a confidential or fiduciary relationship existed between Victor and Emma and Elmar and Viola, and that for purposes of the trial, the burden was upon the defendants to show the utmost good faith while acting in that capacity.
The consolidated lawsuits were tried to an advisory jury and to the district court in a long and complicated trial which lasted eight days. The parties were afforded opportunity to introduce all their evidence including evidence obtained at pretrial discovery proceedings. The advisory jury was instructed, and was asked to answer special questions on the issues involved. No complaint is here made of any of the court's instructions to the jury. At the conclusion of the trial, the jury returned answrs to the special questions as follows:
'No. 1. Was Victor Carlson mentally competent to understand the nature and effect of a deed to real estate on February 8, 1957?
'A. Yes.
'No. 2. Was Victor Carlson unduly influenced by Elmer C. Carlson when he executed the above deed?
'A. No.
'No. 3. Was Emma Carlson unduly influenced by Elmer C. Carlson when she executed the above deed?
'A. No.
'No. 4. Did Victor Carlson and Emma Carlson have independent advice as defined in the instructions, concerning the transfer of such real estate?
'A. Yes.
'No. 5. If the answer to the above question is 'Yes', state who provided said independent advice to said C. V. Carlson and Emma Carlson.
'A. Lon Nichols and Lloyd Vieux.
'No. 6. How much did the defendant, Elmer Carlson, pay from his own funds in complying with the terms of said contract?
'A. $15,000.
'No. 7. What was the reasonable market value of the land, described in Plaintiff's Exhibit No. 70, on February 8, 1957?
'A. $15,000.
'No. 8. Do you find that there was an oral agreement entered into between Victor Carlson, Emma Carlson and Elmer Carlson in the latter part of 1954, that all money earned by any of them, or then belonging to any of them, should be placed in various bank accounts, savings accounts and certificates of deposit, and that such accounts, certificates and other investments, and personal property then owned, or thereafter acquired, should belong to all and/or any of them for such use as all and/or any of them wished to make of such property, and that all of such property should pass to, and be the property of, the survivor of them?
'A. Yes.
'If your answer to Question No. 8 is 'Yes', then answer Question ...
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