In re Gereke's Estate

• Decision Date: 12 June 1948
• Docket Number: 37026.
• Citation: 195 P.2d 323,165 Kan. 249
• Parties: In re GEREKE'S ESTATE. v. PEOPLE'S BANK OF PRATT et al. GEREKE
• Court: Kansas Supreme Court

195 P.2d 323

165 Kan. 249

In re GEREKE'S ESTATE.

GEREKE v. PEOPLE'S BANK OF PRATT et al.

No. 37026.

Supreme Court of Kansas

June 12, 1948

Rehearing Denied July 9, 1948.

Appeal from District Court, Pratt County; Clark A. Wallace, Judge.

Proceeding in the matter of the estate of John W. Gereke, deceased, on the petition of the Peoples Bank, as one of the executors named in decedent's will, for the probate of the will contested by Mary E. Gereke, decedent's widow; and on claim of Mary E. Gereke against the estate, opposed by the Peoples Bank. Mary E. Gereke took separate appeals to the district court from orders of the probate court admitting will to probate and denying her claim, which appeals were consolidated in district court and opposed by the People Bank, Karen Langford, a minor, and George Barrett, guardian ad litem for Karen Langford. From an adverse judgment, Mary E.Gereke appeals.

Syllabus by the Court

1. The test of competency to make a will is that the testator know and understand what property he has, know about his relatives and others who may be the objects of his bounty and be able to direct and make disposition of his property with understanding and reason.

2. In reviewing the judgment of a trial court, made on disputed evidence, the appellate court is concerned only with evidence which supports or tends to support the judgment.

3. The record examined in an action to admit a will to probate where one of the defenses was that testator and his wife had mutually agreed not to make wills, and held, the trial court's finding there was no agreement must be sustained.

4. The record further examined, and held, that the widow, who was the only person making an adverse claim, and who would have inherited one-half of the testator's estate had he died intestate, and who elected to take under the law and not under the will, is not concerned with whether or not the testator did or did not make a will.

5. Where a verified claim asserting an interest therein was filed against the estate of a deceased person by the widow and the executor filed no written defenses thereto, and no contention was made by the claimant in the trial court that there was any defect in pleading, and claimant there adduced evidence in support of her claim, a contention first made in the appellate court that claimant was entitled to judgment because of the state of the pleadings comes too late, and error cannot be predicated on it.

6. The matter of a claimed partnership between a testator and his wife not having been an issue under the pleadings, a subject of controversy at the trial of her claim against his estate, nor ruled upon by the trial court, may not be asserted for the first time in the appellate court.

7. As applied to the facts of this case, our statute relating to trusts and powers (G.S.1935, Ch. 67, Art. 4) provides that no trust concerning lands shall be created except such as may arise by implication of law, unless in writing signed by the party creating the same (67-401); that when a conveyance for a valuable consideration is made to one person and the consideration paid by another, no trust shall result in favor of the other (67-406) unless it shall be made to appear that 'by agreement and without fraudulent intent the party to whom the conveyance was made, or in whom the title shall vest, was to hold the land or some interest therein in trust for the party paying the purchase money or some part thereof.' (67-408)

8. Whether there was an agreement by the grantee to hold lands in trust and its terms, may be inferred from the relation of the parties, their financial means, their conduct and admissions and other circumstantial evidence, but the test of the sufficiency of such evidence is that it must be clear and satisfactory to the trial court.

9. Where two opposing inferences may possibly be made from evidence of the character referred to in the foregoing paragraph, a trial court does not err because it makes the one unfavorable to the complaining party.

10. The record further examined, and held, the trial court did not err in holding there was no agreement for a trust.

11. A contention that because of the widow's election to take under the law and not under the will of the testator, his plan and purpose as outlined in his will has been destroyed and his will has failed and should not be admitted to probate, considered and not sustained.

12. Complaints that the trial court erroneously refused to admit certain evidence examined, and held, not to constitute prejudicial error.

W. L. Cunningham, of Arkansas City (D. Arthur Walker, Wm. E. Cunningham, and William R. Howard, all of Arkansas City, on the brief), for appellant.

George Barrett, of Pratt, for appellee.

THIELE Justice.

This appeal involves the validity of the will of John W. Gereke, and of a claim by his widow against his estate.

John W. Gereke was a farmer living in Pratt County. He died May 26, 1946, survived by his widow Mary E. Gereke, his daughter Vada Langford, and his granddaughter Karen, who is the daughter of Vada. Generally the parties will be referred to hereafter by their Christian names.

Under date of April 14, 1945, John executed his last will and testament. In a summary way it may be said he gave all of the furniture, household equipment in their dwelling, as well as his automobile, to his wife Mary. All the rest of his property of every kind and description, real and personal, and none of which was further described, he gave to Mary and The Peoples Bank, Pratt, Kansas, in trust. The powers of the trustees are set out at length, but as the same are not involved in this appeal, they need not be detailed, further than to say the trustees were directed to pay the net income from the trust estate to Mary as long as she should live and she was directed to use part of the income for the care and maintenance of Vada and Karen. Upon the death of Mary the income was to be paid in equal shares to Vada and Karen. Upon the death of Vada the trust was to cease as to that share and it was to be conveyed to the then surviving children of his brothers George Gereke and Will Gereke. Upon the death of Karen the trust was to cease as to that share and it was to be conveyed to the children of her body then surviving, and if there were none, then to the surviving children of his two brothers above named. He appointed his wife and the above named bank as executors.

After the death of John, The Peoples Bank filed its petition in the probate court of Pratt county to have his will admitted to probate. To this petition Mary filed her written defenses and objections, alleging that at the time the will was executed John was of unsound mind; that the will was procured through fraud and undue influence; that the alleged will was contrary to law, showed on its face that it was illegal, in conflict with law and unenforceable and void; that the will was invalid and unenforceable for the reason that it was made in violation of an oral agreement between John and Mary made long prior thereto, in which they agreed not to make wills and that their property should descend under laws of Kansas; that she had carried out the agreement on her part and had not and would not make any will; that John's will was in violation of the agreement and she demanded that the agreement be enforced against John and his estate. Mary further alleged that John, by his will, endeavored to dispose of property belonging to Mary; that all of the property, the record title of which stood in his name in truth and in fact belonged to them jointly and she was the owner of an undivided half thereof. A long statement of reasons for the conclusion stated is later mentioned in connection with her claim against the estate. Mary also included in her defenses and objections an allegation that she elected to take under the law of Kansas and not under the will.

As the result of a hearing in the probate court on the petition to probate the will and the defenses and objections, that court, on December 14, 1946, ordered the will admitted to probate. From that order Mary appealed to the district court.

On January 6, 1947, Mary filed in the probate court her verified petition for allowance of her claim against John's estate. The gist of this petition is that for many years prior to and at his death, John and Mary were joint owners in and to all real and personal property owned or which stood in the name of either of them, and that John, by his will, attempted to create a trust in property which he did not own. Then follows a long statement of what might be called evidentiary matter, leading to an allegation that, by reason of agreement made without fraudulent intent, John held one-half of the property standing in his name in trust for Mary, and she asked that such a trust be adjudged and enforced. Mary further alleged an agreement between John and her that neither should make a will but would permit all of their property to descend according to the statutes of Kansas, that she has fully performed, and the agreement should be enforced. Mary further alleged that her election to take under the law and John's failure to know and understand the nature and extent of his estate, which was over seventy-five percent less than he believed, effectually destroyed the manifest intention and purpose of John in executing his alleged will. On the same day the above petition was filed, Mary also filed her verified petition to have her petition for the allowance of her claim certified to the district court for hearing and determination, and on the same day the probate court made an order to that effect.

On May 19, 1947, the matters came on for hearing in the district court and over the objection of the proponent of the...