In re Estate of Swisher
| Decision Date | 08 March 1941 |
| Docket Number | 35086. |
| Citation | 110 P.2d 765,153 Kan. 401 |
| Parties | In re SWISHER'S ESTATE. Appeal of McMAIN. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
A client is bound by acts of his attorneys except where he takes timely steps to repudiate them by showing their want of authority to act in his behalf.
Where wife survived husband and their joint will was abortive because not filed within three years after husband's death, but attorney for sole devisee seeking to obtain its probate after wife's death concealed the existence and their possession of later valid will of wife, such devisee and attorney as administrator were barred by "estoppel" from subsequently having the later will probated, as against heir at law who had incurred expense of time and effort to defeat the earlier abortive will. Gen.St.1935, 22-233; Gen.St.Supp.1939, 59-617.
The rule of equitable "estoppel" against client arising from attorney's acts is of general application, and applies not only in successive steps in the same lawsuit, but in a series of litigation involving the same general subject matter.
The reviewing court's usual rule of giving deference to credence given in trial court to oral testimony does not apply to testimony given by deposition, but it becomes reviewing court's own responsibility to adjudge credence to be given it.
Where beneficiaries under later will, by agreement with administrator appointed under earlier abortive will who was suppressing later will, accepted the cash equivalent of their bequests as an allowance of groundless claim for services rendered, and gave releases of any and all claims against the estate, they were barred from demanding the belated probating of later will.
1. In an appeal from a judgment admitting a will to probate which its proponents had suppressed and whose existence they had concealed from the probate court while they procured the probate of an earlier, abortive will and attempted to secure the whole of the estate thereunder for one of their number the record examined and held: (1) the proponents of the abortive will were equitably estopped to have the suppressed will probated after they had caused the heir at law expense of time and effort to defeat their attempt to have the estate administered under the earlier abortive will; and (2) by agreement with the administrator two beneficiaries under the suppressed and concealed will accepted the cash equivalent of their bequests and released all their claims against the estate of the testatrix, and barred themselves of any right to demand the belated probating of the suppressed will.
2. Under the facts stated in the opinion, the heir at law was entitled to judgment setting aside the probate of the suppressed will.
Appeal from District Court, Sedgwick County, Division No. 3; Grover Pierpont, Judge.
Reversed and remanded with instructions.
Dale M Bryant, Austin M. Cowan, and Morris H. Cundiff, all of Wichita, for appellant.
Dempster O. Potts, Robert C. Foulston, and Lester L. Morris, all of Wichita, for appellees Joel C. Swisher and Dallas M. Potts executor of estate of Olive B. Swisher, deceased.
C. A. Matson, I. H. Stearns, E. P. Villepigue, all of Wichita, for appellees Mrs. G. G. Greenamyer and Dorothy Greenamyer.
This is an appeal from a judgment of the district court which sustained an order of the probate court admitting a will to probate over the objections of the heir at law.
The pertinent facts were these: The late Mrs. Olive B. Swisher of Wichita, a widow whose sole heir was her only brother, William S. McMain of North Kansas City, Mo., employed the law firm of Dempster O. Potts and Dallas M. Potts, father and son, to draw her will which is the subject of this lawsuit. Its principal terms read:
Dated, signed and witnessed December 10, 1937.
Mrs. Swisher left this will in the custody of the attorneys who drew it, and died in less than two months thereafter, on February 2, 1938.
Instead of offering for probate this will which was in his possession and without giving the probate court any intimation of its existence, on February 8, 1938, Dallas M. Potts filed for probate a purported "Joint Last Will and Testament" of Charles R. Swisher and Olive B. Swisher, husband and wife, dated April 7, 1920, and signed by Charles R. Swisher and Olive B. Swisher, and witnessed on April 9, 1920, by Dempster O. Potts and another. By its terms, if Olive B. Swisher should survive her husband, his estate was devised to her without restrictions, but providing that "If there shall remain in her hands any of the estate coming to her under this will, including rents, profits and increase, we mutually will and bequeath the same to the said Joel Swisher, to have and hold the same to his exclusive use and benefit."
Charles R. Swisher died on June 21, 1926, but the foregoing will of 1920 was never offered for probate in the administration of his estate. It had been in the possession and control of Olive B. Swisher and her stepson for a number of years (for more than three years next prior to February 2, 1938).
On the petition of Dallas M. Potts, this instrument of 1920 was admitted to probate as the last will of Olive B. Swisher, and its proponent was appointed and qualified as administrator of her estate, with the purported will of 1920 annexed. This appellant William S. McMain, brother and sole heir at law of Olive B. Swisher, was unaware of the existence of the will which his sister had made a few weeks before her death. Two of the beneficiaries of that will, however, Dorothy Greenamyer and Mrs. G. G. Greenamyer, had been informed by Mrs. Swisher herself that she had made her will and had bequests in it in their behalf. This feature of the case will be further developed later in this opinion.
The estate in controversy consisted of a house and parcel of ground in Toronto, Kansas, valued at $1,000 and about $9,000 in government bonds, cash, and insurance policies. Dallas M. Potts gave a bond in the sum of $2,000 for his faithful administration of the estate. Shortly thereafter Mrs. Greenamyer inquired of him about the bequests Mrs. Swisher had made for her and her daughter. She testified by deposition that Potts told her that it (the will he had drawn in December 1937) "wasn't any good, it wouldn't stand." Mrs. Greenamyer asked to see that will but he refused to show it to her. Her deposition continued:
Dorothy Greenamyer testified that she went to Dallas Potts' office with her mother (Mrs. G. G. Greenamyer) and asked to see the will of December 1937 and that he refused to show it to her.
About the time Mrs. Greenamyer and her daughter were inquiring about the will of December 1937, in which Mrs. Swisher had made bequests in their behalf and about which the testatrix had informed them, Mr. Greenamyer filed a demand against the estate of Mrs. Swisher for an "amount agreed upon and the wish of the deceased, *** in payment of services rendered deceased by claimant, in nursing and general care during last illness of deceased, $1,000.00." The date when this claim was presented is not shown but it was verified on February 12, 1938, and endorsed thereon are the following:
This was followed on April 25, 1938, with a formal order of the probate court reciting that "The court after investigating the records and being fully advised in the matter, finds that the demand of the said G. G. Greenamyer against said estate in the sum of One Thousand Dollars was heard and allowed on the 17th day of March, 1938," and directing that the $1,000 be paid. Potts the administrator had already taken receipts from G. G. Greenamyer and his wife and daughter for the payment of this claim and for any and all other claims of the Greenamyer family against Mrs. Swisher's estate. These read:
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