Goff's Estate, In re

• Decision Date: 02 March 1963
• Docket Number: No. 42894,42894
• Citation: 379 P.2d 225,191 Kan. 17
• Parties: In the Matter of the ESTATE of U. S. GOFF, Deceased. Steve Clayton GOFF, a minor, and Perry Lenn Goff, a minor, by Evelyn Goff Brock, their mother and natural guardian, Appellees, v. David U. GOFF and Mary C. Goff, Executors of said Estate, Appellants.
• Court: Kansas Supreme Court

Page 225

379 P.2d 225

191 Kan. 17

In the Matter of the ESTATE of U. S. GOFF, Deceased.

Steve Clayton GOFF, a minor, and Perry Lenn Goff, a minor, by Evelyn Goff Brock, their mother and natural guardian, Appellees, v. David U. GOFF and Mary C. Goff, Executors of said Estate, Appellants.

No. 42894.

Supreme Court of Kansas.

March 2, 1963.

Syllabus by the Court

This is an action in the nature of a demand against an estate based upon the breach of an alleged oral contract between the claimants' mother and the decedent, whereby, in consideration of the conveyance of a section of real property by the claimants' mother to the decedent, and a release pursuant to a property settlement in contemplation of divorce, the decedent agreed upon his death to devise the section of property (the subject of the conveyance) to the claimants, who were his grandchildren (third party donee beneficiaries). The trial court, after admitting evidence to establish the oral contract, found that the oral contract had been made, and ordered specific performance. On appeal the record is examined and it is held: Evidence as to the alleged oral contract was admissible on the ground that the oral contract was entirely collateral, separate and distinct from the property settlement which contemplated a divorce between the claimants' mother and their father (a son of the decedent), and did not violate the statute of frauds in that the mother had performed her part of the agreement, and the contract was enforceable, all as more fully set out in the opinion.

J. Eugene Balloun, Great Bend, argued the cause, and Oscar Ostrum, Russell, was with him on the brief for appellants.

Alex M. Fromme, Hoxie, argued the cause, and Joseph W. Fromme, Hoxie, was with him on the brief for appellees.

SCHROEDER, Justice.

This is an action based upon a claim against an estate wherein it is alleged the decedent prior to his death orally agreed to will a section of real property to his two grandsons (third party beneficiary claimants) as part of the consideration for a property settlement involving a divorce of the decedent's son. Pursuant to the provisions of G.S.1949, 59-2402a, as amended, and 59-2402b, the matter was transferred from the probate court to the district court where, after hearing, the claim was allowed. Appeal has been duly perfected from the judgment and various rulings and orders of the trial court.

The underlying question is whether, under the facts and circumstances here presented, the oral promise is enforceable as a matter of law.

Evidence as to whether the oral promise was actually made by the decedent was in sharp conflict. It may be said the basic findings of fact made by the trial court are supported, in substance, by the evidence, assuming the evidence under challenge on appeal was admissible. We shall, therefore, not burden our reports with a detailed account of the evidence, but present the facts by quoting the findings made by the trial court as set forth in its journal entry of judgment:

'Findings of Fact.

'1. The decedent, U. S. Goff, died testate in Graham County, Kansas, on the 15th day of December, 1958, a resident of Graham County, Kansas. Mary C. Goff and David U. Goff were duly appointed, qualified, and are now acting as executors of said estate. The petitioners, Steve Clayton Goff and Perry Lenn Goff, are minors. They filed their joint claim against the estate by their mother and natural guardian, Evelyn (Goff) Brock. No legal guardian has been appointed for said minors. Their claim was properly and timely filed in the Probate Court of Graham County, Kansas, and transferred upon proper petition, notice, and order to the District Court for trial as provided by G.S.1959, 59-2402a and 59-2402b.

'2. The decedent, U. S. Goff, was survived by the following heirs-at-law:

Mary C. Goff, his widow;

David U. Goff, a son;

Beth Collins, a daughter;

Miron D. Goff, a son;

Perry C. Goff, a son;

and the petitioners, Steve Clayton Goff and Perry Lenn Goff, are the children of Perry C. Goff and grandsons of the decedent.

'3. The decedent's last will and testament was admitted to probate in the Probate Court of Graham County, Kansas, on July 27, 1959. It was dated and executed on May 24, 1958. The terms of said will bequeathed and devised all personal property and one half interest in all real estate owned by him at his death to Mary C. Goff, his widow. The other one half interest in the real estate was devised to Mary C. Goff for her life, and on her death the remainder in fee to David U. Goff, a son. No specific real estate was described by the testator in his will.

'4. The decedent held legal title to 2720 acres of land in Graham County, Kansas, at the time of his death, and included therein was 640 acres of land referred to in the evidence as the 'Park's Place,' and specifically described as follows: [Description omitted] all lying and situated in Graham County, Kansas, and subject to mineral reservations of record.

'5. Perry C. Goff and Evelyn (Goff) Brock were first married in 1950. One son, Steve Clayton Goff, was born August 26, 1952, and the other son, Perry Lenn Goff, was born December 1, 1954. The parents were divorced in February, 1956. They remarried on December 2, 1956. They were again divorced in May 1959 by decree of a Florida court. Evelyn (Goff) Brock was granted the care, custody and control of the minor children, and they have continued to live with their mother in Florida.

'6. During the marriage Perry C. Goff acquired the 640 acres of land known as the 'Park's Place' from his father and mother, U. S. and Mary C. Goff. The deed of conveyance was introduced in evidence as 'Petitioners' Exhibit 1.' The deed was acknowledged January 24, 1957, and recorded February 21, 1957. This deed was on a standard general warranty deed form, and the only reservation therein related to an interest in oil, gas and other minerals reserved to U. S. Goff and Mary C. Goff jointly and to terminate on the death of the survivor. The warranty clause contained no mention of prior grants or reservations. No condition subsequent was contained in the deed.

'7. Perry C. Goff and Evelyn (Goff) Brock and their two children containued to live on the farm in the house with U. S. and Mary C. Goff after Perry C. Goff acquired the 'Park's Place.' In the late summer and fall of 1957 Perry C. Goff and Evelyn (Goff) Brock began having marital difficulties. While living with U. S. and Mary C. Goff, Perry C. Goff engaged in farming operations with his father on the Goff farms. A crop of milo had been planted and was growing on the farm. Fall wheat had been plainted, and Perry C. Goff had some interest in the milo, wheat and livestock on the farm. He also was the owner of a car and a welding truck outfit.

'8. Evelyn (Goff) Brock consulted an attorney, Mr. Kenneth Clark, of Hill City, Kansas, about the domestic difficulties with her husband. These consultations covered a period from the middle of August to the 1st of November, 1957. During this time not only Evelyn (Goff) Brock, but also Perry C. Goff, U. S. Goff and Mary C. Goff talked with Mr. Clark in an attempt to work out the marital difficulties. During the latter part of October it became apparent to Evelyn that no reconciliation could be made between her and her husband, and she directed her attorney, Kenneth Clark, to prepare divorce papers to be filed in court against Perry C. Goff in which she would seek a divorce, alimony, property settlement, and support and custody of the minor children.

'9. A petition was prepared by Mr. Clark together with other papers to restrain Perry C. Goff from disposing of his personal property. At that time Perry C. Goff held legal title to the 640 acres of land known as the 'Park's Place.' The land was subject to two mortgages. One mortgage was held by The Federal Land Bank of Wichita, Kansas, to secure a note signed by U. S. Goff, Mary C. Goff, Perry C. Goff and Evelyn Goff, in the sum of $7,100.00. The other mortgage was held by U. S. Goff and Mary C. Goff, jointly, to secure a note signed by Perry C. Goff and Evelyn Goff, in the sum of $18,900.00. Certified copies of these mortgages and the $18,900.00 note was introduced in evidence and appear in the record as Petitioners' Exhibits 2, 5, and 6, respectively.

'10. On the 30th day of October, 1957, Perry C. Goff, Evelyn (Goff) Brock, and U. S. Goff went to the office of Clark, Chipman & Clark, attorneys, in Hill City, Kansas, to attempt to work out a settlement of property rights, alimony, custody and support of the minor children between Perry C. Goff and Evelyn Goff. At that time in the presence of Kenneth Clark, Evelyn Goff, and Perry C. Goff, he (U. S. Goff) expressed an interest in the welfare of the minor children of the marriage. He stated that he would will the 640 acres of land known as the 'Park's Place' on his death to his grandchildren, Stave Clayton Goff and Perry Lenn Goff, provided Evelyn would join with her husband in deeding the land to U. S. Goff, and provided further that she would release all claim which she might have in the growing crop of milo and wheat and all farming operations of U. S. and Perry C. Goff. As a part of this offer U. S. Goff agreed to release Evelyn from any liability on the note and mortgage he held against the land, and to save her harmless against the Federal Land Bank note and mortgage.

'11. After discussing the offer among themselves at the Goff farm, Perry C. Goff, Evelyn (Goff) Brock and U. S. Goff returned to the offices of Clark, Chipman & Clark, at Hill City, Kansas on November 2, 1957. There in the presence of Marion W. Chipman, Perry C. Goff, Evelyn (Goff) Brock, and Mr. and Mrs. S. A. Crosby, who are the parents of Evelyn, U. S. Goff renewed his previous offer and the same was accepted by Evelyn. On that date Perry C. Goff and Evelyn Goff, his wife, executed and delivered to U. S. Goff a deed to the 'Park's Place.' This deed appears in the...