In re Henry's Estate

• Decision Date: 08 May 1943
• Docket Number: 35850.
• Citation: 137 P.2d 222,156 Kan. 788
• Parties: In re HENRY'S ESTATE. v. SCURRY et al. HENRY
• Court: Kansas Supreme Court

137 P.2d 222

156 Kan. 788

In re HENRY'S ESTATE.

HENRY v. SCURRY et al.

No. 35850.

Supreme Court of Kansas

May 8, 1943

Rehearing Granted July 7, 1943.

Syllabus by the Court.

Ordinarily it is no breach of professional ethics for an attorney to give testimony respecting mere formal matters in an action in which he is serving as attorney, but if attorney is called on to testify on material matters from that point onward he should withdraw from the case.

In action for specific performance of oral contract to devise realty, attorney who represented respondents in proceedings in probate court and who gathered evidence in their behalf was not disqualified to testify for that reason, and, where it appeared that testimony of such attorney was essential to ends of justice, its exclusion was prejudicial.

One asserting claim against a deceased's estate based on oral contract for services which were to be paid for by devise of lands was competent to testify touching alleged conversation between claimant's wife and deceased.

Where claimant was asserting a claim against deceased's estate based on oral contract for services which were to be paid for by a devise of lands, allegations in claimant's petition and evidence in support thereof touching services claimant had rendered for promisors over a period of 24 years prior to alleged making of oral contract, though not a valid "consideration" for the contract, were properly pleaded and proved as matter of inducement to show any prior dealings between parties which led to making of the contract. Gen.St.1935, 60-312.

Where alleged oral contract to devise land in payment for services made by two promisors each owning an undivided one-half interest in the land, provided that devise should be made by survivor of the promisors, promisee was not required to file a timely claim against estate of promisor who died first since nothing was due him under alleged contract until death of other promisor.

Where claimant was asserting a claim against deceased's estate based on oral contract entered into by deceased and her husband during their lifetime with claimant for services which were to be paid for by a devise of land by survivor of deceased or her husband, claim for compensation against estate of deceased who survived her husband was not limited to claimant's services rendered within three years of her death, but extended back to time contract was made.

A jury trial in district court in an appeal from a judgment of probate court is discretionary, and is not a matter of express statutory right. Gen.St.Supp.1941, 59-2408.

Where claimant, on appeal from money judgment of probate court on a claim based on alleged oral contract for services which were to be paid for by a devise of land, sought specific performance of alleged contract, district court did not abuse its discretion in refusing request for an advisory jury made by parties opposing claimant's petition. Gen.St.Supp.1941, 59-2408.

A suit for specific performance is a "suit in equity", not triable by a jury as a matter of right.

In suit for specific performance of oral contract for services to be paid for by a devise of land, where there existed neither difficulty nor inequity in granting specific performance contract should be enforced as made, notwithstanding that services could be compensated in money.

Trial court's refusal to amend journal entry of judgment to include its specific findings of fact was erroneous, but not prejudicial, where its findings were otherwise accurately incorporated in record.

1. In an appeal and cross appeal from a money judgment of the probate court on a claim based on an alleged oral contract for services which were to be paid for by a devise of land the record made in the district court where the matter was tried de novo examined and held: (a) The district court erred in excluding the testimony of a witness on the ground that he was a lawyer and had been an attorney for the respondents in the proceedings in the probate court and because he had gathered evidence in their behalf. (b) Neither the cannons of professional ethics nor any rule of law or precedent of this court disqualified the attorney to testify; it was essential to the ends of justice that his testimony should have been received, and its exclusion was prejudicial.

2. The admission of claimant's testimony touching a conversation between his wife and the persons with whom claimant's alleged contract had been made was not error.

3. The allegations of claimant's petition and whatever evidence there was to support them touching services claimant had rendered for the promisors over a period of twenty-four years prior to the making of the oral contract sued on, were not a valid consideration for the oral contract (G.S.1935, 60-312), but they were not improperly pleaded and proved as matter of inducement to show any prior dealings between the parties which lead to the making of the contract, and no material error is shown under this assignment.

4. No rule of law required claimant to file a timely claim against the estate of the promisor who died first since nothing was due him under his alleged contract until the death of the other promisor.

5. The claim for compensation against the estate of the last surviving promisor was not limited to his services rendered within three years of her death, but extended back to the time the contract was made.

6. A jury trial in the district court in an appeal from a judgment of the probate court is not a matter of express statutory right, (G.S.1941 Supp. 59-2408), and its denial was not reversible error.

7. In a suit for specific performance of an oral contract for compensation for services to be paid for by a devise of land, the fact that the services could be compensated in money is not controlling. Where there exists neither difficulty nor inequity in granting specific performance the contract should be enforced as made,-- following Hoppas v.

Bremer, 114 Kan. 609, 220 P. 251, Syl. 3.

8. Under the facts appearing in the record, the trial court's refusal to amend the journal entry of judgment to include its specific findings of fact was erroneous but not prejudicial.

Appeal from District Court, Sumner County; Wendell Ready, Judge.

Reversed and remanded.

SMITH, J., dissenting in part.

A. M. Cowan, of Wichita (E. J. Taggart, of Wellington, and C. A. McCorkle, W. A. Kahrs, Robert H. Nelson, and Henry L. Butler, all of Wichita, on the brief), for appellants.

George

Siefkin, of Wichita (H. W. Goodwin and W. H. Schwinn, both of Wellington, on the brief), for appellee.

DAWSON Chief Justice.

This is an appeal from a judgment of the district court decreeing specific performance of an alleged oral contract to devise 240 acres of Sumner county land. The promisors were the late J. S. Henry and Minnie G. Henry, his wife, of Boonville, Missouri. J. B. Henry, of Mayfield, Kansas, nephew of J. S. Henry, was the promisee.

J. S. Henry and Minnie G. Henry each owned an undivided one-half interest in 480 acres of land in Sumner county.

J. S. Henry died testate in Missouri in February, 1939, after devising all his property to his wife, Minnie G. Henry. She died intestate in Missouri in June, 1941.

One Ruth K. Chambers, of Boonville, Mo., was appointed administratrix of Mrs. Henry's estate, and Floyd N. Anderson was appointed ancillary administrator by the probate court of Sumner county.

After certain abortive proceedings had been commenced by parties interested in the Sumner county property, J. B. Henry filed a petition in the probate court of Sumner county laying claim to three 80-acre tracts of the land. He alleged that Minnie G. Henry had acquired title to the land in 1898 and that in 1919 she conveyed an undivided one-half interest in it to her husband; that prior to 1907 claimant's father had rendered to Minnie G. Henry and J. S. Henry the usual services performed by a real estate agent--leasing the land, collecting the rent, selling the crops, paying the taxes, and keeping up the improvements; and that beginning in 1908 this claimant rendered the same kind of services down to 1932.

Claimant alleged that during that long interval Mr. and Mrs. Henry frequently told him that they appreciated his services and that they would, "at some future time, make definite arrangements with him to see that he was well paid for his efforts and labor in their behalf."

Claimant alleged that at harvest time in 1932, Mr. and Mrs. Henry came from Missouri to Sumner county and he took them to their property, and that they there expressed their appreciation of his services and said: "*** that it was time that some definite arrangement be made for paying him for such services. They further stated to this petitioner that they were without children themselves, that they had no close relatives and that it was becoming increasingly difficult for them to come out to Sumner county, Kansas, each year to see the petitioner about the management and care of the real estate. They further stated to the petitioner that they desired the petitioner, in the future, to take full charge and control of the said real estate and further requested that instead of having them come to Sumner county, Kansas, to make settlement that he come to Boonville, Missouri, to make settlement each year.

"*** that they desired to have for themselves, and the survivor of them, all of the income and profit from the real. estate so long as either of them might live; but that if the petitioner would continue to render services to them in the future as he had in the past, that they would so prepare their wills that upon the death of the survivor of them, he, the said J. B Henry, would receive as payment for services rendered in the past...