Hirt v. Bucklin State Bank of Bucklin
| Decision Date | 25 January 1941 |
| Docket Number | 35038. |
| Citation | 109 P.2d 171,153 Kan. 194 |
| Parties | HIRT v. BUCKLIN STATE BANK OF BUCKLIN. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
The allowance or refusal of belated amendments to pleadings is so largely addressed to trial court's discretion that error can rarely be predicated thereon.
Addition of the adjective "oral" to qualify the noun "agreement" in amendment to petition was immaterial, as respects propriety of allowing the amendment at a late date, where validity of the agreement as against third parties did not turn on whether it was oral or in writing.
That an agreement should be in writing but is merely oral is a matter of no consequence to third parties.
A "motion for judgment on pleadings" is the equivalent of a "demurrer", and in ruling on such motion all well-pleaded facts in adversary's pleadings must be favorably construed, and all pleadings of the moving party must be left out of consideration.
It is not illegal under Kansas law for persons interested as heirs or beneficiaries of an estate, testate or intestate, to make an agreement for its disposition different from that directed by the statute of descents or the statute of wills.
In action against bank to recover balance of sum deposited by plaintiff's father, petition alleging that father had died in Germany leaving will but that heirs and beneficiaries had agreed upon different disposition of the property, and that bank had made payments pursuant to such agreement and had given plaintiff a written statement of the fund in its hands belonging to plaintiff, was sufficient against motion for judgment on the pleadings, notwithstanding that father's will was never probated in Kansas.
A matter of inducement, not essential to statement of the cause of action, is ordinarily unobjectionable and frequently helpful to understanding of the gist of the action.
In action against bank to recover balance of sum deposited by plaintiff's father, pursuant to agreement of heirs and beneficiaries after father's death, and admission by bank of amount due to plaintiff, petition was not subject to motion for judgment on the pleadings merely because it attempted to state single cause of action in three separate counts.
Where bank executed agreement in 1934 admitting amount due to particular heir under family agreement for division of deposit by father, and made payments to such heir until 1935 heir's action against bank begun in 1937 was not barred by limitations, whether considered on theory of recovery of trust fund, recovery under written acknowledgment of existing indebtedness, or recovery on simple account stated. Gen.St.1935, 60-312.
Where bank executed instrument acknowledging amount due to depositor's heir pursuant to family agreement for division of a deposit, bank could not resist recovery of balance of such deposit on ground that bank had no trust powers, since corporations cannot escape their just obligations on plea of "ultra vires".
1. In an action to recover the balance of a sum of money deposited in the defendant bank by plaintiff's father, long since deceased, plaintiff's petition examined, and held that it stated a cause of action which could not be met by a motion for judgment.
2. Error based on the trial court's refusal to permit a belated amendment to plaintiff's petition considered and not sustained; but held also that the requested amendment was immaterial under the other allegations of the petition.
3. The propriety of a motion for judgment on the pleadings is to be determined on the sufficiency of the pleadings against which the motion is leveled, and for such determination the pleadings of the moving party are to be ignored.
4. It is neither illegal nor unusual for persons interested in an estate as heirs or devisees to effect an agreement for its division or disposition at variance with the terms of the testator's will or at variance with the statute of descents and distributions, following Babst v Babst, 130 Kan. 826, 288 P. 593; and Myers v Noble, 141 Kan. 432, 41 P.2d 1021, 97 A.L.R. 463.
5. Matters of inducement, while not essential to the statement of a cause of action, are not ordinarily objectionable, and are frequently helpful to an understanding of the gist of the action.
6. Other objections to plaintiff's petition suggested by defendant to uphold the trial court's ruling thereon considered and not sustained.
Appeal from District Court, Ford County; Karl Miller, Judge.
Action by William Hirt against the Bucklin State Bank of Bucklin Kan., to recover the balance of a sum deposited in defendant bank by plaintiff's father. From a judgment on the pleadings for defendant, plaintiff appeals.
Reversed and remanded.
Carl Van Riper and Russell L. Hazzard, both of Dodge City, for appellant.
C. H. Brooks, Howard T. Fleeson, Carl G. Tebbe, Wayne Coulson, and Paul R. Kitch, all of Wichita, and George R. Gould and E. C. Minner, both of Dodge City, for appellee.
This is an appeal from an adverse judgment on the pleadings in an action to recover the balance of a sum of money which originally had been part of a deposit in the defendant bank belonging to plaintiff's father who died in Germany about fourteen years ago.
In his first petition and also in successive amended petitions plaintiff narrated at length certain antecedent facts as the background of his cause of action, which he formulated in three counts.
Defendant levelled motions and dilatory pleas against some of plaintiff's petitions, but neither they nor the trial court's rulings thereon will need attention because eventually plaintiff filed a third amended petition which was held good as against defendant's demurrer,--for a time, at least, --and that petition will require our careful perusal. Summarizing its contents, that petition alleged that for many years plaintiff's father, one Frederick Hirt, lived in Bucklin, Kansas. At some unstated time he removed to Germany and resided there until his death in 1927. When he left Bucklin he had on deposit in the defendant bank about $33,500. Hirt's will was probated in Germany. By that will he made disposition of his property in Germany to various beneficiaries, and as to his deposit in the Bucklin State Bank the will provided:
Nothing in the nature of ancillary administration was instituted in Kansas. In lieu thereof and by agreement of the persons concerned, a different disposition of the money in the defendant bank was effected and apportioned thus:
"The six minor children of Friedrich Hirt ... $ 3,000.00 Five other children .......................... 5,000.00 Augusta Pinneo ............................... 5,000.00 Mary Hoeme ................................... 5,000.00 William Hirt (this plaintiff) ................ 5,000.00 Clara Hirt ................................... 8,832.09 A brother and sister ......................... 600.00 Probate court costs, attorney fees ........... 1,067.91 ------------- Total .................................. $33,500.00"
How the defendant bank became apprised of this family agreement was not pleaded but the bank allegedly acquiesced in it and disbursed most of the Hirt money in its hands pursuant to its terms. Prior to July 26, 1934, defendant had thus disbursed to plaintiff the sum of $1,000 in two $500 payments, and on that date the bank through its cashier and active manager, Marion A. Neal, gave plaintiff a written statement of the Hirt fund in its hands belonging to him. It read:
Since the last date shown above, defendant has paid nothing and has refused plaintiff's demand for further payment. Hence this action which was begun on October 16, 1937.
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