Hughes v. Hughes
| Decision Date | 07 December 1940 |
| Docket Number | 34921. |
| Citation | 107 P.2d 672,152 Kan. 720 |
| Parties | HUGHES v. HUGHES et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
A beneficiary of will who, with full knowledge of the facts accepted distributive share under terms of will devising particular land to third person was held to have elected to take under the will, and was barred by "estoppel" from seeking specific performance of alleged oral contract by testator to convey such land to such beneficiary.
Where testator, after devising property owned by him to one beneficiary, assumes to devise to another property belonging to the first devisee, devisee of the property owned by testator, if he accepts the devise with knowledge of all the facts, is precluded from asserting a claim to his own property devised to the other beneficiary.
A beneficiary cannot accept benefits under a will without renouncing rights which are inconsistent with the will.
1. Where a testator, after devising property owned by him to one beneficiary, assumes to devise to another property belonging to the first devisee, the devisee of the property owned by the testator, if he accepts the devise with knowledge of all the facts, is precluded from asserting a claim to his own property devised to the other beneficiary.
2. A beneficiary who, with full knowledge of the facts, accepts a distributive share under the terms of a will, which will is wholly inconsistent with rights he claims outside of the will to land devised to another, is held to have elected to take under the will.
Appeal from District Court, Kingman County; Clark A. Wallace, Judge.
Action by Homer N. Hughes against Herschel A. Hughes and others to compel specific performance of oral land contract, and in the alternative damages. From an order sustaining demurrers to the reply, plaintiff appeals.
H. E Walter and Paul R. Wunsch, both of Kingman, for appellant.
John McKenna, of Kingman, for appellees.
In this action plaintiff sought to compel the specific performance of an alleged oral contract relating to a certain tract of land and in the alternative damages for the value of the land or a decree impressing the land with a trust, the land having been devised to another contrary to the oral contract which plaintiff claimed to have had with the testator and which he performed during the life of the testator. Defendants prevailed and plaintiff appeals.
The appeal is from an order sustaining defendants' demurrers to plaintiff's reply. The demurrer, of course, searched the record. It is conceded in the contentions of the parties that one of the specific issues raised was whether plaintiff having elected to take under the will, could also compel performance of the alleged oral contract. Other issues are argued. They are whether the reply constituted a departure from and was inconsistent with the allegations of the last amended petition, whether the district court had jurisdiction over the subject matter of the action, whether several causes of action were improperly joined, whether the alleged oral contract was enforceable under the statute of frauds and whether the action was barred by statutes of limitation. The defense that plaintiff is estopped to claim under the oral contract because he elected to take under the will, if valid, determines the lawsuit. We are told that was primarily the ground upon which the demurrers were sustained. In discussing that defense we shall state only facts which appear to be admitted by the pleadings and which are not challenged in the contentions of the parties. This approach makes it unnecessary to narrate in detail the various averments, and the general and special denials contained in the pleadings.
Plaintiff is the son of the testator Edmon Ellsworth Hughes. The testator left surviving him two adult sons, the plaintiff, Homer N. Hughes, and Herschel A. Hughes. Herschel had a son, Richard D. Hughes, a minor. The particular land which plaintiff claims by virtue of his alleged oral contract was devised to Richard D. Hughes. The defendants were Herschel A. Hughes, executor of testator's estate, Richard D. Hughes, a minor, and John McKenna, guardian ad litem for Richard D. Hughes, a minor. The testator died April 27, 1938. The will was duly probated. The instant action was instituted February 25, 1939. The estate was then and is now in the process of administration. The alleged oral contract under which plaintiff claims the land devised to Richard D. Hughes, was made in 1925, and was at that time alleged to have been fully performed by plaintiff. Under the will other land than that embraced in the alleged oral contract was devised to plaintiff. Plaintiff was also a beneficiary under the residuary clause of the will. Paragraph five of the will provided: 5th. "I hereby will, give, bequeath and devise all the rest, residue and remainder of my property, that remains after the payment of my said debts, funeral expenses and the expenses of the administration of my estate, and after the foregoing bequests and devises of real property, to my two sons, Homer N. Hughes and Herschel A. Hughes, absolutely, the same to be equally divided among them, share and share alike."
No action or proceeding has been commenced by plaintiff to set aside or contest the will. On July 30, 1938, plaintiff accepted a partial payment of his distributive share under the terms of the will. The receipt which was signed and filed in the probate court for that distributive share was as follows:
Plaintiff pleaded in substance: The testator at his death held only the naked legal title to the land in question known as the "North Place"; the equitable title to the land was in the plaintiff by operation of law and resulted from the oral contract made with his father which was fully performed by plaintiff in 1925; the "North Place" was no part of testator's estate at the time of his death and was not subject to any devise; the title to the land was saddled with the trust and the grandson held the title in trust for plaintiff and should be required to convey it to plaintiff; plaintiff was not barred or estopped from claiming the land by reason of having accepted whatever was devised or bequeathed to him out of the property which remained a part of testator's estate.
The pleadings of plaintiff embrace his contentions. Defendants counter with the contention that the will was inconsistent with the rights of plaintiff under the alleged oral contract, in that, the will devised to the grandson the specific land which plaintiff now claims under his contract and that the acceptance by plaintiff of all benefits under the will constituted an election to take under the will and a renunciation of his rights under the alleged oral contract.
It should be noted at the outset that the vital question now is not whether this particular land was at one time impressed with a trust in favor of the plaintiff. Nor is the question now whether such a...
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Metz v. U.S.
...held a devisee must either accept or reject a will as written and that he cannot accept its benefits and reject its burdens." 152 Kan. 720, 107 P.2d 672, 675 (1940). The Hughes court held that a party who accepted a residuary distribution under a will could not later bring a contract action......