In re Bond's Estate
| Decision Date | 08 July 1944 |
| Docket Number | 36181. |
| Parties | In re BOND'S ESTATE. v. TRENT. BOND |
| Court | Kansas Supreme Court |
Rehearing Denied Sept. 2, 1944.
Syllabus by the Court.
One seeking to establish a claim to property of a deceased under an oral contract was incompetent to testify in her own behalf under statute as to transactions or communications had personally with deceased. Gen.St.1935, 60-2804.
Trial court's action of weighing the evidence in considering a demurrer to evidence was error, since on a demurrer to the evidence the court must accept all evidence as true and consider such portions thereof as are favorable to the party adducing it.
Where there was some competent evidence to support plaintiff's claim, action of trial court in sustaining a demurrer to evidence was error.
Generally where the reason given by trial court in sustaining demurrer is found to be insufficient, the judgment will be affirmed if the demurrer was properly sustainable on other grounds.
A judgment sustaining a demurrer to claimant's evidence would not be affirmed, regardless of court's reasons for sustaining demurrer, where demurrer was not sustainable for any reason.
In a proceeding to specifically perform the terms of an oral contract under which a person claims title to all the property owned by a decedent at the time of his death, and following the rule that on a demurrer to the evidence courts do not weigh the evidence or compare contradictory testimony but must accept all evidence as true and consider only such portions thereof as are favorable to the party adducing it held, it is error for the trial court at the close of a plaintiff's testimony to sustain a demurrer to the evidence and render judgment against her, where there was some evidence to sustain such plaintiff's contention, she was entitled to the relief prayed for in her petition.
Appeal from District Court, Shawnee County, Division No. 3; Dean McElhenny, Judge.
Reversed and remanded.
A Harry Crane, of Topeka (Ward D. Martin, of Topeka, on the brief), for appellant.
Randal C. Harvey, of Topeka (Marlin S. Casey, of Topeka, and R. E. Melvin and George K. Melvin, both of Lawrence, on the brief), for appellee.
This was a proceeding to establish, and specifically perform, an oral contract under which the claimant Susie Bond asserts a right to all of the property owned by the decedent at the time of his death. The trial court sustained a demurrer to the claimant's evidence and rendered judgment disallowing such claim. The claimant appeals.
Preliminary to a statement of the facts pertinent to the main issue a chronological narrative of the events responsible for their existence will be helpful.
On October 31, 1908, the claimant and the decedent H. G. Bond were united in wedlock and thereafter lived on a farm and later in Overbrook. To that union was born a daughter Edna who in due time was married to one Verne Johnson and later divorced from him. Subsequently she remarried and her name is now Edna Wasmuth. Marital differences arose between the father and mother and in 1928 Mrs. Bond procured a divorce in the district court of Osage County. By virtue of the terms of a stipulation and agreement judgment was rendered in the divorce action dividing the personal property then owned by the parties and vesting title to a residence property in Overbrook in Mrs. Bond. The remaining property owned by the parties at the time was an eighty-acre tract of land located near Pauline. This land was disposed of by that judgment and decree as follows:
"That as to the following described real estate in Shawnee County, Kansas, to-wit: The south half of southwest quarter of Section 33, Township 12, Range 16, being the land mentioned in said stipulation as held in the name of the defendant and located near Pauline, Shawnee County, Kansas, the said plaintiff and defendant shall each be entitled to and have free from the claims of the other, a life estate in and to an undivided one-half of said real estate, with remainder to Edna Johnson, daughter of plaintiff and defendant; and that the said Edna Johnson shall have the right to the exclusive use, occupancy and possession of said real estate during said life estates, as long as she may desire to use and occupy said land, and said defendant may assist her in such use and possession by overseeing and advising in the operation of said land."
Subsequent to the divorce action Mrs. Bond resided at Overbrook and later in Topeka where, except for a short period presently referred to, she lived on all dates involved herein. For a time Edna Johnson and her husband lived on the land referred to but for reasons herein inconsequential moved away and Mr. Bond, who had been living with them, continued to occupy it as his home until the date of his death. On March 16, 1931, the claimant procured a judgment against Mr. Bond in Shawnee county for $425.45 based on his improper action in selling her share of crops grown on the farm and some of the buildings located thereon. From that date, and perhaps before, up to August 1936 on intermittent intervals she made trips to the farm. On some of those occasions and particularly throughout the year 1934, Verne Johnson, who was either separated or divorced from Edna during all that time and yet remained on friendly terms with both Mr. and Mrs. Bond, would take the latter out to the place and while there frequently had conversations with the former and overheard conversations between the two of them. It was on one of such occasions it is claimed the contract relied upon by claimant was consummated. In April 1936, Mrs. Bond who bad been working as a laundress at the State Hospital quit her job, bought some pigs and chickens and moved out to the farm where both she and Mr. Bond resided until he died on February 5, 1943. During that time she cooked the meals, did the housework, helped with the chores, hauled feed, fed Mr. Bond's livestock, and performed many tasks, manual in character and having to do with personal property owned by the decedent. She also cared for and ministered to the decedent during the last two years of his life while he was ill and in an almost helpless condition due to a paralytic stroke.
Turning now to matters germane to the principal question involved the record discloses the following facts and proceedings: On October 21, 1943, after institution of proceedings for the administration of the estate of H. G. Bond, deceased, the claimant filed a petition for allowance of her demand against his estate wherein she claimed his entire estate and alleged she was entitled thereto by reason of the fact that in the spring of 1934 she entered into an oral contract with decedent, thereafter fully performed by her, whereby in consideration of the cancellation of her judgment heretofore referred to and care of decedent for the balance of his life, he would leave her all of his property at his death. Subsequently Rosa Elva Trent, a sister of decedent and the appellee herein, filed an answer, the allegations of which, so far as they are pertinent to the issues here, denied generally the existence of any valid contract between claimant and the decedent or that she had any right, title or interest in and to his property on the date of his death. On the issues thus joined a hearing was had in the probate court on the demand and it was allowed. In due time, Mrs. Trent appealed to the district court where a demurrer to the evidence produced by the claimant in support of her demand was sustained and a judgment was rendered disallowing her claim and remanding the cause back to the probate court with instructions to disallow it and render judgment in favor of Mrs. Trent for the costs incurred by her in the appeal to district court. It is from that judgment the appeal is taken.
On the trial in district court the only competent testimony produced by the appellant with respect to the terms of the oral agreement relied upon by her was that of Verne Johnson. The claimant herself made an attempt to testify regarding that transaction but her testimony was properly rejected on the ground that G.S. 1935, 60-2804, made her incompetent to testify in her own behalf with respect to transactions or communications had personally by her with her deceased ex-husband. Summarizing, Mr. Johnson's evidence in substance was that one Sunday in the spring of 1934, identified by Mrs. Bond in her testimony as one Sunday in April of that year, he took Mrs. Bond to the farm and there overheard a conversation between her and Mr. Bond. Specifically, with respect to the terms of the oral contract relied on by appellant, the record discloses this witness was asked questions to which he made answers as follows:
Direct examination:
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