Frontier Lodge 104, A.F. & A.M. of Washington, Kan. v. Wilson

• Decision Date: 10 March 1934
• Docket Number: 31506.
• Citation: 139 Kan. 75,30 P.2d 307
• Parties: FRONTIER LODGE NO. 104, A. F. & A. M. OF WASHINGTON, KAN., v. WILSON et al.
• Court: Kansas Supreme Court

30 P.2d 307

139 Kan. 75

FRONTIER LODGE NO. 104, A. F. & A. M. OF WASHINGTON, KAN., v. WILSON et al.

No. 31506.

Supreme Court of Kansas

March 10, 1934

Syllabus by the Court.

Where trial court omitted from findings of fact finding necessary for plaintiff's recovery, and included it in conclusions of law, but on attention being directed to matter court adhered to findings as already made, statement in conclusions of law could not be regarded as finding.

Evidence of conversation with others, both before and after execution of wills, as to testators' plans and desires for disposition of property, held not sufficient to establish that wills were contractual and therefore irrevocable.

In action by residuary legatee to obtain specific performance of contract allegedly made by husband and wife to leave property to residuary legatee, affirmative proof of existence of agreement held essential to legatee's recovery; either will made without such agreement being revocable by execution of subsequent will.

Joint mutual and reciprocal wills are revocable, unless they are contractual.

1. In an action by the residuary legatee in separate wills executed by husband and wife, to enforce specific performance of a contract said to have been made by the husband and wife to leave their property to such residuary legatee, the affirmative proof of the making and existence of such agreement is essential to plaintiff's recovery, and either of such wills made without such a contract is revocable by the execution of a subsequent will.

2. In this state, joint mutual and reciprocal wills may be revocable, as are other wills, unless they are contractual.

3. Where the trial court at the request of one of the parties to the action makes and files findings of fact and conclusions of law, but entirely omits from the findings of fact a certain finding which is one of the affirmative essential elements for the recovery by plaintiff, but includes it in the conclusions of law, and on a motion by defendants for judgment in their favor, upon the findings of fact, the attention of the trial court is directed to such omission and that such matter is among the conclusions of law instead of with the findings of fact, and the court adheres to the findings of fact as already made, stating in the journal entry concerning the same that the findings of fact as made and filed were about as far as the court felt at liberty to go under the evidence, the statement in the conclusions of law should not be further regarded as a finding of fact, and where it is a finding essential to a recovery by the plaintiff, the motion of the defendants for judgment on the findings should be sustained.

4. Evidence of conversations with others as to the plans and desires of the testators for the disposition of property by them, both before and after executing their wills, is not a substitute for the proof of the existence and the terms and conditions of a contract necessary to the making of such wills contractual, and therefore irrevocable.

Appeal from District Court, Washington County; Tom Kennett, Judge.

Action by the Frontier Lodge No. 104, Ancient, Free and Accepted Masons of Washington, Kan., against Howard L. Wilson and others. Judgment for plaintiff, and defendants appeal.

Judgment reversed, and cause remanded, with instructions.

J. R Hyland, of Washington, Kan., and W. D. Vance and Fred Emery both of Belleville, for appellants.

Edgar Bennett and A. C. Bokelman, both of Washington, Kan., for appellee.

HUTCHISON Justice.

This action brought by Frontier Lodge No. 104, Ancient Free and Accepted Masons of Washington, Kan., a corporation, against the heirs at law of Barton S. Wilson to establish and enforce specific performance of a contract said to have been made between Barton S. Wilson and his wife, Lydia Wilson, to leave by their wills their property to the plaintiff lodge. They did each make the plaintiff lodge the residuary legatee, but wills are revocable while contracts are irrevocable. The action is therefore not based on a will, but on an alleged contract made between this husband and wife prior to or at the time of the drawing and executing the wills. The trial court made findings of fact and conclusions of law, but failed entirely to make a finding of fact that the wills were contractual, but did make a conclusion of law that they were not only mutual and reciprocal, but also contractual, and rendered judgment for plaintiff, from which defendants appeal.

The petition alleged a contract; the answer denied it both generally and specifically. The plaintiff requested findings of fact that the wills were "executed in pursuance of a prior or antecedent agreement or contract entered into between themselves." The defendants requested findings that the wills were not contractual and that there was no substantial evidence showing the existence of any agreement or contract between them upon which the wills were executed. The main issue in the case was whether or not the wills were contractual.

At the close of plaintiff's evidence the trial court overruled the demurrer of defendants to the plaintiff's evidence and the defendants rested without the introduction of any evidence. When the trial court later filed findings of fact and conclusions of law, the defendants filed a motion for judgment on the findings and a separate motion for a new trial. The motion for judgment on the findings was mainly because of the want of an essential and affirmative finding that the wills were contractual. Under the pleading of plaintiff in its petition, it could not hope to succeed without an affirmative finding that the wills were contractual. Neither party requested the court for additional findings. Both parties appear to be satisfied with them. Appellants say they are supported by the evidence, and for that reason appellants did not bring up to this court any of the evidence. Appellee cites the case of Shuler v. Lashhorn, 67 Kan. 694, 74 P. 264, which quoted with approval from the opinion in the case of Briggs v. Eggan, 17 Kan. 589, that the court does not commit substantial error when it inadvertently fails to make a special finding upon some particular matter in controversy unless its attention is first called to the omission and it then fails or refuses to correct the same. Appellee also cites Burns v. Burns, 87 Kan. 19, 123 P. 720, where it was said: "What is designated by the trial court as a conclusion of law will be treated on review as a finding of fact if it appears to be essentially of that character." Syllabus par. 1.

The case of Funk v. Insurance Co., 87 Kan. 568, 125 P. 35, is also cited by appellee, where it was held that a judgment implies a finding favorable to the prevailing party.

In answer to these three propositions it may very properly be said it is never the duty of the defendant to request the making of an omitted affirmative finding essential to the recovery of the plaintiff, but he will not be allowed to take advantage of an inadvertence without the attention of the court being called thereto. The proceedings had in connection with the motion for judgment for defendants on the findings show conclusively the omission of this essential finding was not an inadvertence or a presumption of favorable finding or the use of a conclusion of law for a finding of fact. These matters were all fully before the trial court and he adhered to the findings as originally made by him as being "about as far as the court felt at liberty to go under the evidence," which amounted to a declination of the court to find from the evidence that the wills were contractual. The following portion of the journal entry as to the hearing of the motion for judgment for defendants on the findings of fact is pertinent and shows these matters were all before the trial court and that there was no occasion for inadvertence, presumptions, or implications: "Thereafter, to-wit, on the 5th day of June, 1933, this cause comes further on to be heard before the court, the parties appearing as heretofore stated herein, upon the motion of said appearing defendants for judgment in their favor and as against the plaintiff, based upon the findings of fact made and filed by the court herein, and upon such presentation and argument thereof before the court, said defendants contended that the findings of fact were insufficient in law to authorize a decree herein in favor of the plaintiff for specific performance of the alleged contract sued upon by the plaintiff, said plaintiff contending that such findings of fact were sufficient in themselves, and further, that said motion for judgment should not be allowed for the additional reason that said defendants have made no request for additional findings and that the conclusion of law numbered (1), as above set forth herein, may be considered in effect, a mixed finding of fact and conclusion of law, and not a mere conclusion of law, and so considered the findings of fact were sufficient. ***"

This statement by the court as to the contentions of the parties is immediately followed by the following order and ruling "*** And thereupon, the court being well advised in the premises announces that the findings of fact as made and filed herein, and as designated, based upon the evidence...