Johnson's Estate, In re

• Court: Kansas Supreme Court
• Writing for the Court: O'CONNOR; SCHROEDER; O'CONNOR
• Citation: Johnson's Estate, In re, 452 P.2d 286, 202 Kan. 684 (Kan. 1969)
• Decision Date: 08 March 1969
• Docket Number: No. 45257,45257
• Parties: , 203 Kan. 262 In the Matter of the ESTATE of Charles W. JOHNSON, Deceased. Vernon KEPHART, Executor of the Estate of Charles W. Johnson; and Lorena Meisenheimer, Opal Kreutzer, Leona Johnston and Carl Johnson, Appellees, v. Hazel M. JOHNSON, Appellant.

Page 286

452 P.2d 286

202 Kan. 684, 203 Kan. 262

In the Matter of the ESTATE of Charles W. JOHNSON, Deceased Vernon KEPHART, Executor of the Estate of Charles W Johnson; and Lorena Meisenheimer, Opal Kreutzer Leona Johnston and Carl Johnson, Appellees, v. Hazel M. JOHNSON, Appellant.

No. 45257.

Supreme Court of Kansas.

March 8, 1969.

Supplemental Opinion on Denial of Rehearing April 22, 1969.

[202 Kan. 684] Syllabus by the Court

1. The general rule in this state is that contracts made either before or after marriage, the purpose of which is to fix property rights between a husband and wife, are to be liberally interpreted to carry out the intention of the makers, and to uphold such contracts where they are fairly and understandably made, are just and equitable in their provisions, and are not obtained by fraud or overreaching.

2. The rules governing the construction of contracts generally are also applicable to construction of antenuptial contracts.

3. To warrant rescission of a contract because of a breach of its terms, the breach must be material and the failure to perform so substantial as to defeat the object of the parties in making the agreement; a breach which goes to only a part of the consideration, which is incidental and subordinate to the main purpose of the contract, does not warrant a rescission.

4. Courts are reluctant to rescind or deny specific performance of an antenuptial agreement, in the absence of fraud or other equitable considerations. Since marriage once entered into is a consideration

that cannot be restored, covenants in an antenuptial agreement generally are construed to be independent, and a breach of a covenant which does not defeat the objects and purposes of the agreement does not warrant rescission of the agreement.

5. As a general rule, in order for impossibility of performance to constitute a ground for rescission of a contract, it must clearly appear that the only performance possible would be essentially different from that promised in the contract.

6. Where an affianced wife and her betrothed husband, after receiving independent legal advice, entered into an antenuptial agreement, the terms of which provided she was to receive a substantial portion of her intended husband's estate in the event he predeceased her, and further provided that after the marriage he was to make a last will and testament 'conformably to and in ratification of' the agreement, and it is stipulated the agreement was fair and equitable, the amount to be received by the wife was not disproportionate to the husband's estate, and there was no fraud, misrepresentation or overreaching, it is held, the [202 Kan. 685] agreement was enforceable although the husband did not make a new will as provided by the terms of the agreement; and it is further held, the wife's homestead rights in 160 acres of 280 acres of real estate to be sold in accordance with the terms of the agreement did not render the agreement impossible to perform.

7. The all-important factor in the establishment of a valid joint tenancy bank account is the clarity with which the intent of the depositor is expressed at the time the transaction is initiated.

8. Where a claim is made that a joint tenancy bank account was established and the language of the written instrument signed by the depositor is uncertain or ambiguous, parol evidence relating to the facts and circumstances existing prior to and contemporaneously with the execution of the written instrument is admissible to clarify the intention of the depositor at the time of the creation of the account.

9. Where a depositor and his wife sign an account signature card on which the notation 'A or B or Survivor' is made, but fail to sign the 'Depositor's Contract' portion of the card, and the only parol evidence is that the depositor told the bank officials he wanted 'to make it in a joint account,' it is held, under the facts and circumstances disclosed in the record, that the district court did not err in concluding a joint tenancy account with right of survivorship was not established.

10. Notwithstanding the provisions of K.S.A. 59-1206, the surviving widow occupying the homestead is entitled to crops growing thereon at the time of her husband's death.

Supplemental Opinion

Where a depositor and his wife sign an account signature card, the provisions of which are fully described in In re Estate of Johnson, 202 Kan. 684, 452 P.2d 286, it is held, the instrument is uncertain and ambiguous, and the district court erred in not admitting parol evidence relating to whether or not the depositor intended to create a joint tenancy bank account; and it is further held, the original majority opinion is modified accordingly.

R. R. Mitchell, Dodge City, argued the cause, and A. L. Moffat, Kinsley, and Don C. Smith and David L. Patton, Dodge City, with him on brief for appellant.

Bill Murray, Pratt, argued the cause, and William N. Beezley, Kinsley, and B. V. Hampton and Bill Hampton, Jr., Pratt, with him on brief for appellees.

O'CONNOR, Justice.

This appeal grows out of proceedings in which Hazel M. Johnson, the surviving spouse of Charles W. Johnson, deceased, seeks to avoid the enforcement of an antenuptial agreement and also to strike certain items from the inventory of Charles' estate as being property belonging to her. From an adverse decision in the district court, Hazel has appealed.

Three questions are presented for our consideration: (1) enforceability of the antenuptial agreement, (2) ownership of a joint checking account in the name of Charles or Hazel 'or Survivor,' and (3) whether the executor or surviving widow is entitled to proceeds from crops growing on the homestead at the time of Charles' death.

The facts are not in serious dispute, most of them having been stipulated to at the pretrial conference in district court.

Charles W. Johnson and Hazel M. Bowers were married April 2, 1961. Charles was nearly seventy-nine years of age, and Hazel was fifty-nine. This was the second marriage for each, their prior spouses having died. Hazel had two children by her first marriage. Both are living and are adults. Charles had five children by his first marriage. Two of them predeceased him and left no surviving heirs. One son predeceased him and left two children. Charles' two living children and the two grandchildren, along with the executor of Charles' estate, are appellees here.

On April 1, 1961, the day prior to their marriage, Charles and Hazel executed before a notary public an antenuptial agreement that had been prepared by Charles' attorney, Mr. William N. Beezley, of Kinsley. Mr. A. L. Moffat, who had acted as attorney for Hazel over a period of years, counseled with and advised her in respect to her rights and obligations under the law, in view of her contemplated marriage to Charles, and further explained to her the terms of the agreement. The agreement generally provided that all property owned by each of them at the commencement of the marriage, or thereafter acquired by either of them during the marriage, should be held and controlled by him or her and be subject to his or her disposition in the same manner and to the same extent as if the proposed marriage had never been celebrated. A further provision was that upon the death of either party, the survivor, because of such survivorship or by way of inheritance, would not have or assert any claim to the property and estate of the deceased party, except in accordance with, and limited by, the following provisions for Hazel:

'It is covenanted and agreed that the said Hazel M. Bowers shall have and receive out of the estate of the said Charles W. Johnson, should she survive him as his widow, the following, to-wit: a distributive share of 1/4th of the proceeds for distribution of the sale of the following described real estate, to-wit:

(280 acres of land in Edwards county)

as provided by the 5th paragraph of the last will and testament of the said Charles W. Johnson, party of the first part herein, and dated December 28, 1959, and in addition thereto the widow's statutory allowances from the personal estate of the party of the first part and in addition thereto 1/4th of the personal estate for distribution on the final settlement of the estate of the party of the first part, as and for the full interest and share of the said Hazel M. Bowers in the estate of the said Charles W. Johnson, should she survive him. It is further agreed that after the marriage of the parties hereto the said Charles W. Johnson, party of the first (part) agrees to make a last will and testament conformably to and in ratification of this agreement and the said party of the second part, Hazel M. Bowers, agrees to consent to the provisions of such last will and testament.

'And the said Hazel M. Bowers hereby relinquishes unto the heirs, devisees, legatees, executors, administrators and assigns of the said party of the first part, any and all her claims, distributive shares, interest, right, title and estate in or to the property and estate of which the said Charles W. Johnson, shall die seized and possessed, except as provided by the terms of this agreement.

'It is further understood and agreed that the said Charles W. Johnson has made full disclosure to the said Hazel M. Bowers of the size, extent and value of his property and estate. And the said Hazel M. Bowers, hereby acknowledges and declares that prior to and in the execution of this agreement, she has had the independent advice of counsel of a competent attorney of her own choosing, employed by herself for the purpose of advising with her in all matters in connection with this agreement.'

The fifth paragraph of Charles' last will and testament referred to in the agreement provided the executor was to sell the 280 acres, and after the payment of debts, taxes and costs of administration, the balance of the proceeds of the sale were to be distributed to Charles' two daughters...