Harris v. Morrison

• Decision Date: 10 March 1917
• Docket Number: 20,739
• Citation: 100 Kan. 157,163 P. 1062
• Parties: DORA HARRIS, Appellee and Appellant, v. HUGH MORRISON, Appellant and Appellee
• Court: Kansas Supreme Court

163 P. 1062

100 Kan. 157

DORA HARRIS, Appellee and Appellant, v. HUGH MORRISON, Appellant and Appellee

No. 20,739

Supreme Court of Kansas

March 10, 1917

Decided January, 1917.

Appeal from Greenwood district court; ALLISON T. AYRES, judge.

SYLLABUS

SYLLABUS BY THE COURT.

1. PLEADINGS--Motion to Strike Out Allegations of Petition Denied--No Error. An order denying a motion to strike unnecessary allegations from a petition will not cause a reversal of a judgment, where the defendant was fully informed of the nature of the plaintiff's cause of action.

2. ACTION--Determining Ownership of Property--When Judgment is Conclusive. In an action to determine the ownership of the residue of property left after paying the debts of a deceased person, which action is prosecuted by one to whom the deceased person had contracted to leave the property at his death, against the beneficiary under a will executed by the deceased person, a judgment against the beneficiary is final and conclusive and will be binding on the executor in the final distribution of the estate, where the beneficiary is also the executor.

3. EXCLUSION OF EVIDENCE--Evidence Not Produced--Review. Error in the exclusion of evidence will not be considered on appeal, where the excluded evidence was not produced on the hearing of the motion for a new trial.

4. EVIDENCE -- Transaction with Person Since Deceased -- Competent Witness. In such an action as is mentioned in section 2 of this syllabus, the plaintiff's husband, who is not a party to the action, is a competent witness by whom to prove the contract between the plaintiff and the deceased person, although the plaintiff and her husband may be occupying a part of the land in controversy as a homestead.

5. PETITION -- Stated One Cause of Action -- No Election Required. Where a petition states one cause of action and the evidence tends to establish that cause of action, it is not error to refuse to require the plaintiff to make any election between different phases of the evidence.

6. EVIDENCE--Established Plaintiff's Cause of Action. The evidence has been examined. It was sufficient to establish the plaintiff's cause of action, and defendant's demurrer to the plaintiff's evidence was properly overruled.

7. TRIAL--Findings of Court Cover All the Issues Involved. A judgment will not be reversed because of the failure of the court to make detailed special findings of fact, where no findings are presented by the parties, and where the court makes special findings which are somewhat general in their nature, but which cover all the issues involved in the action.

8. CONTRACT--To Leave Property at Death--May be Performed by Deed or Will. In such an action as is mentioned in section 2 of this syllabus, the contract may be performed by deed or will.

9. -- Former Decision Followed. Cathcart v. Myers, 97 Kan. 727, 156 P. 751, followed.

10. ACTION -- Ownership of Property -- Certain Conversation Between Plaintiff and Defendant Competent Evidence. In such an action as is mentioned in section 2 of this syllabus where the defendant testifies that he never heard of such a contract until after the action was commenced, the plaintiff may, in rebuttal, testify to a conversation had by him with the defendant, in which the conversation with the deceased person was detailed.

11. SECONDARY EVIDENCE. No secondary evidence of the contents of a letter was offered or admitted.

12. ACTION--Ownership of Property--Evidence--Nature of Judgment to be Rendered. In such an action as is mentioned in section 2 of this syllabus, judgment should be rendered in favor of the plaintiff for all the property, where the contract and its performance on the part of the plaintiff are proved and are found by the court, notwithstanding that the defendant has claims which may be allowed by the probate court against the estate of the deceased person; and a judgment decreeing the defendant to be the owner of a part of the property, based on such claims, will be reversed.

W. L. Huggins, of Emporia, S. F. Wicker, and Gordon A. Badger, both of Eureka, for the plaintiff.

Howard J. Hodgson, of Eureka, Eli B. Felsenthal, and Francis S. Wilson, both of Chicago, Ill., for the defendant.

OPINION

MARSHALL, J.:

This is an action to determine the ownership of property. The plaintiff recovered judgment giving her a portion of the property, from which judgment the defendant appeals; and the defendant recovered judgment for a portion of the property, from which judgment the plaintiff appeals.

C. H. Day and Anna Day, his wife, owned real and personal property in Greenwood county. The plaintiff was the daughter of C. H. Day and stepdaughter of Anna Day. The plaintiff pleaded, the evidence tended to prove, and the court found that C. H. Day and Anna Day orally contracted with the plaintiff that if she and her husband and children would live with or near C. H. Day and Anna Day, and give them such attention and care as a daughter could give, until they should die, the plaintiff should have, as her reward and compensation, all the property of which they or either of them should die seized and possessed; that this contract was fully performed on the part of the plaintiff; that C. H. Day died first; that after his death, Anna Day orally stated to the plaintiff that if the plaintiff would continue to care for and wait upon Anna Day as she had been doing for C. H. Day and Anna Day, the plaintiff should, upon the death of Anna Day, have and receive all the property of every nature and kind of which Anna Day should die seized and possessed; and that the plaintiff fully complied with this request of Anna Day and cared for her until she died. On the 28th day of September, 1912, Anna Day executed a will, devising all her property to the defendant, her brother, and appointing him executor of her estate. Anna Day died on the 18th day of October, 1912.

The facts upon which each of the specifications of error depend are set out as each specification of error is discussed.

1. Quoting from the defendant's brief:

"The appellant filed a motion asking the court to strike from the petition of the appellee all the allegations in the petition, in effect, save and except those which alleged the death of Anna Day, the execution and probating of the will and the naming of Hugh Morrison as executor and the qualification of Hugh Morrison as executor of the will. The same motion asked that the appellee be required to make her petition more definite and certain by attaching a copy of the will."

The petition may have contained unnecessary allegations, and some of the allegations may have been set out with unnecessary prolixity, but they did not prejudice any substantial right of the defendant. He was fully informed of the nature of the plaintiff's cause of action. It was within the sound discretion of the trial court to refuse to strike out any part of the petition on the request of the defendant. ( Drake v. National Bank, 33 Kan. 634, 639, 7 P. 219; Sramek v. Sklenar, 73 Kan. 450, 85 P. 566.) Even if some of the allegations should have been stricken out, the refusal of the court to strike them out was not sufficient error to warrant a reversal of the judgment. (Civ. Code, § 581.)

2. Another complaint of the defendant is as follows:

"Under the petition as filed in this case, the allegations were direct and positive that Hugh Morrison as executor of the last will and testament of Anna Day deceased was administering upon that estate and had in his possession as such executor the entire estate of Anna Day and no part of said estate could pass from Hugh Morrison, executor of the last will and testament of Anna Day, to Hugh Morrison as an individual, no matter what claim of any kind he might be making to such property until the final settlement of the estate of Anna Day in the Probate Court of Greenwood County, Kansas."

That part of the petition which set out the interest claimed by Hugh Morrison in the property in controversy was as follows:

"That said last will and testament has been admitted to probate in the Probate Court of Greenwood County, Kansas, and the said Hugh Morrison, defendant above named, has been appointed and is now acting as the executor thereof, and said estate is in the process of settlement and is about to be closed.

"That the said Hugh Morrison is in possession of all of said personal property except such as he may have used for the payment of debts of the said Annie Day, deceased. That said Hugh Morrison refuses to deliver any of said property to this plaintiff. That the said Hugh Morrison also claims the possession of said real property and excludes this plaintiff from the possession thereof."

The plaintiff claims that portion of the property which will be left after the payment of all claims and debts against the estate of Anna Day. The executor is entitled to the possession of all personal property until the estate has been fully administered, and has power to sell the real property for the payment of debts, if the personal property is insufficient for that purpose. Upon the complete administration of the estate the executor must, under the order of the probate court, turn the property in his possession over to those entitled thereto. Hugh Morrison, who is the executor, claims all the property left after the payment of the debts, under the will of Anna Day. The judgment determines which of the parties to this action is entitled to the property. As between them, the judgment will be conclusive in the probate court on the final distribution of the estate. This conclusion is supported, to some extent by Railway Co. v. Mills, 57 Kan. 687, 47 P. 834; Getty v. Larkin, 59 Kan. 548, 53 P. 755; Railroad Co. v. Menager, 59 Kan. 687, 54 P. 1043; Barnett v. Schad, 73...