Johnson v. Johnson
| Decision Date | 12 May 1982 |
| Docket Number | No. 53372,53372 |
| Parties | Cylus A. JOHNSON, et al., Appellants, v. Elsie G. JOHNSON, Executrix, et al. In the Matter of the ESTATE OF Albert R. JOHNSON, deceased, Appellees. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. A trust instrument, otherwise revocable at the election of the settlor, may become burdened by a contract executed by the settlor, resulting in a restriction on the power of revocation.
2. Dismissal of pending judicial proceedings that are not palpably unjust or groundless may constitute legal consideration for a contract.
3. An agreement to make a future disposition of property cannot unilaterally be rescinded after the promisee performs his agreement under the contract, as rescission would constitute "an intolerable fraud."
4. An appellate court is free to make its own interpretation of unambiguous written instruments and of their legal effect.
5. Common meaning of terms and reasonable interpretations are guides in determining the meaning of contracts.
6. The hand of equity has two sides. It not only creates what needs to be, it also wipes out what should not be.
7. Equity will not permit one to do indirectly that which one is not permitted to do directly.
8. In a suit for fraudulent breach of a father's contract to allow a plaintiff son to share an estate equally with two other brothers in which the father thereafter amended his trust agreement to provide nothing for any son, but made provision for the families of the other two sons, it is held the trial court erred in granting summary judgment to defendants and in failing to enter summary judgment for plaintiffs.
Philip Shaffer, Salina, for appellants.
C. Stanley Nelson, of Hampton, Royce, Engleman & Nelson, Salina, for appellees.
Before FOTH, Chief Justice Presiding, TERRY L. BULLOCK, District Judge, and FREDERICK WOLESLAGEL, District Judge Retired, Assigned.
Cylus and Shirley Johnson (plaintiffs-appellants) are husband and wife. They appeal from a denial of their motion for summary judgment and a grant of summary judgment to defendants. Plaintiffs claimed Albert R. Johnson, father of Cylus and two other sons, Adley E., and Don A., breached an agreement to treat Cylus equally with his brothers by executing a supplement to an existing trust instrument. The supplement provided that none of the brothers would receive any benefit, but the wives and children of the two other brothers would. We reverse as to each motion for summary judgment.
The total evidence before the trial court consisted of an original trust agreement, a first supplement, the court files in this and three earlier court proceedings, an agreement settling most issues in two of those proceedings, a second supplement to the trust agreement and an affidavit of attorney Aubrey G. Linville who represented Cylus when the settlement agreement was entered into. The factual representations of the affidavit are substantially as set forth hereafter and they are not disputed.
On May 21, 1969, Albert R. Johnson established a revocable trust which provided in relevant part that upon the death of the survivor of Albert and his wife Elsie G. Johnson "Trustees shall divide this trust into such number of separate shares of equal value as to provide one such separate share for each child of the Donor who is then living, and one such separate share for each child of the Donor who is then deceased but who has any one or more of a spouse or issue then living."
After the execution of the trust instrument, a dispute arose concerning family business operations. On August 13, 1970, Albert and Elsie filed a petition in the probate court of Saline County alleging that Cylus was mentally ill and requesting a determination of mental illness and an order of protective custody. On that same day an ex parte hearing was held, an order for protective custody was issued, and the sheriff took plaintiff into custody and delivered him to Asbury Hospital in Salina. Plaintiff was released on August 17, 1970, pending a final determination of his sanity.
On September 1, 1970, Albert signed an amendment to the trust termed a "First Supplement." It recognized a provision in the original which provided for funds for Albert and his wife during their lives. Instead of providing a share for each son or his family, however, it revoked the provision for Cylus or his family while it provided shares for the other two sons, or their families.
On September 10, 1970, the probate court determined that Cylus was not mentally ill and he was discharged.
On February 3, 1971, Cylus filed an action against Albert, Adley and Don seeking the dissolution of two family partnerships and accountings thereof. On August 13, 1971, Cylus filed an action against Albert and Elsie for false imprisonment and malicious prosecution arising out of the mental illness proceedings. On February 15, 1972, the day before trial, Albert, Elsie, Cylus and his wife Shirley, and their attorneys entered into a settlement agreement which provides in part:
On March 15, 1972, Albert executed a "Second Supplement" to the trust, providing in pertinent part:
Albert died on January 26, 1977, and copies of the trust and amendments thereto were received by the attorney then representing Cylus on February 29, 1977. Cylus Johnson and his wife filed this action against Albert's estate on ...
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