Lostutter v. Estate of Larkin

• Decision Date: 12 September 1968
• Citation: 679 P.2d 181,235 Kan. 154
• Parties: John M. LOSTUTTER and Robert K. Lostutter, Sr., Appellants, v. The ESTATE OF William A. LARKIN a/k/a W.A. Larkin and The Emporia State Bank & Trust, Co., as Trustee of the W.A. Larkin Revocable Trust dated
• Court: Kansas Supreme Court

Page 181

679 P.2d 181

235 Kan. 154

John M. LOSTUTTER and Robert K. Lostutter, Sr., Appellants, v. The ESTATE OF William A. LARKIN a/k/a W.A. Larkin and The Emporia State Bank & Trust, Co., as Trustee of the W.A Larkin Revocable Trust dated September 12, 1968, including all amendments thereto, Appellees.

No. 55697.

Supreme Court of Kansas.

March 24, 1984.

Syllabus by the Court

1. A trial court's finding of fact will not be upset on appeal if there is any substantial competent evidence to support it, even though that evidence may be controverted. When the findings are negative, however, there must be proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice, since the negative finding signifies the failure of the party upon whom the burden of proof was cast to sustain it. See Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, Syl. p 5, 548 P.2d 719 (1976).

2. Where a contract with the deceased is urged in a will contest, the standard of proof is by clear and convincing evidence due to the inherent danger of fraud in such cases. Jones v. Estate of Cooper, 216 Kan. 764, 766, 533 P.2d 1273 (1975).

3. No party may assign as error the giving or failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict. The objection when given must distinctly state the matter to which the party objects and the grounds for the objection, unless the instruction is clearly erroneous. State v. Stafford, 223 Kan. 62, 573 P.2d 970 (1977).

4. An advisory jury is merely consultative with no binding effect on the trial court's decision. Thus, any error in the instructions to the advisory jury constitutes harmless error. See Grannell v. Wakefield, 172 Kan. 685, Syl. p 1, 242 P.2d 1075 (1952).

5. Summary judgment is proper only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Zehring v. Wickham, 232 Kan. 704, Syl. p 1, 658 P.2d 1004 (1983). A motion for summary judgment should not be sustained so long as discovery is incomplete, unless the incomplete discovery is irrelevant to the uncontroverted facts, which form the basis for the granting of summary judgment. See Citizens State Bank v. Gilmore, 226 Kan. 662, 664, 603 P.2d 605 (1979).

6. A point not raised before the trial court may not be raised for the first time on appeal. See Lantz v. City of Lawrence, 232 Kan. 492, 500, 657 P.2d 539 (1983).

John M. Lostutter, argued the cause pro se and was on the briefs for appellants.

Richard C. Hite of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, argued the cause and was on the brief for appellee Emporia State Bank & Trust Co., trustee of the W.A. Larkin Revocable Trust.

J. Stan Sexton of Hampton, Royce, Engleman & Nelson, Salina, argued the cause and was on the brief for appellee Emporia State Bank & Trust Co., executor of the estate of W.A. Larkin, deceased.

HERD, Justice:

This is a consolidated action by John M. Lostutter and Robert K. Lostutter, Sr., to enforce the provisions of an oral contract against the Estate of William A. Larkin, deceased, and the W.A. Larkin Revocable Trust. This appeal is from judgment for the estate. We affirm.

William Larkin lived a successful life in Emporia, having overcome the early loss of his parents. At his death, he left a combined probate and trust estate of three million dollars. The appellants, John M. and Robert K. Lostutter, Sr., allege they are each entitled to one-half of the probate and trust estate pursuant to an oral agreement with William A. Larkin and his wife Esther, made December 25, 1946.

William A. Larkin was born on September 10, 1890, in Caldwell. He was adopted and raised by an aunt and uncle. In 1910, Larkin moved to Emporia where he obtained employment with a local bank. He married Esther Wilhite in 1914. Esther Wilhite had a sister, Florine, who married Frank Lostutter in 1910. Esther and Florine were the daughters of O.M. Wilhite of Emporia. John M. Lostutter and Robert K. Lostutter, Sr., are the sons of Frank and Florine Lostutter and hence nephews by blood of Esther Larkin. The Larkins had no children.

In 1914, after their marriage, the Larkins moved into a house which they built at 1513 Rural Street, Emporia. The Frank Lostutters built a home in 1913 at 1605 Rural Street, and in the same year O.M. Wilhite built a home at 1701 Rural Street. Florine Lostutter continued to live in the Lostutter home until August, 1977, when she moved to a house in Emporia owned by John M. Lostutter. The Larkin family home always remained at 1513 Rural Street. Robert K. Lostutter, Sr., has always lived in Emporia near the Larkin home.

After Larkin's marriage to Esther, he obtained a bookkeeping position with the Warren Mortgage Company of Emporia. The Warren Company was engaged in making farm loans. Larkin subsequently became vice-president of the Warren Mortgage Company. After World War II, the company changed operations and began selling mutual funds and insurance until it closed in the 1960's. Larkin retired in the mid-1950's when he was sixty-four years old.

John Lostutter, after graduating from the University of Kansas Law School in the late 1930's, obtained a position with the Internal Revenue Service in Washington, D.C., in the Estate and Gift Tax Division. During World War II he served as an Ensign in the U.S. Navy. After leaving the U.S. Navy in 1946, John returned to the I.R.S. He served in the Chicago and Los Angeles offices until 1952.

In an April, 1951, visit to Emporia, John was allegedly told by William A. Larkin he wished him to obtain a position close to Emporia so he would be available to provide investment advice at more frequent intervals. John was thereafter transferred by the I.R.S. to Kansas City, Missouri.

In recent years, John has practiced law in Kansas City, Kansas, and frequently has served as a judge pro tem in the Wyandotte County district court.

Robert Lostutter, Sr., went to work for the Santa Fe Railroad in 1937, and, except for military service with the U.S. Army between 1944 and 1946, he was employed by that company continuously until his retirement as a conductor in 1972. Since his retirement, Robert has owned and operated a liquor store in Emporia.

For some years John and Robert have also owned and managed a family agricultural operation consisting of about four thousand acres, located in the Emporia area. Their operation is only a short distance from the farm which was owned by William A. Larkin.

The Lostutters contend that on Christmas Day, 1946, William A. Larkin and Esther Larkin entered into an oral agreement with them. Pursuant to the contract John and Robert Sr., were to provide love, affection, entertainment, comfort, companionship, care, maintenance, and advice, in consideration for which William A. Larkin and Esther Larkin agreed to give, devise and bequeath to the appellants all of their property then owned or thereafter acquired.

Over the next thirty-five years, John and Robert, Sr., claim they rendered services to William and Esther Larkin consisting of visits to the Larkins, either by home visit or by telephone. The visits were frequent and lasted from minutes to hours. This claim was corroborated by friends and neighbors of the Larkins. During hospital stays, the Lostutters would arrange for the admittance and dismissal of the Larkins. Often they would stay with them and visit with them during their hospital stays. During the holidays, the Larkins would always be entertained in the homes of the appellants. There were many other occasions in which the appellants would entertain the Larkins with picnics and outings.

William A. Larkin was taken on automobile trips with the appellants to inspect and transact necessary business in connection with his farm real estate holdings in several counties around Emporia.

John Lostutter allegedly provided continuing and regular advice and counsel concerning tax laws, as well as extensive estate planning advice for William Larkin. John claims to have provided Larkin with top quality and unique information on tax matters, due to his position with the I.R.S. John also asserts he provided substantial investment advice due to his exceptional experience in investments.

Esther Larkin died on November 30, 1977, and by the terms of her will she bequeathed her property to the children of the Lostutters. William A. Larkin died on November 12, 1981. His will, dated May 11, 1977, with two codicils, dated January 26, 1978, and May 9, 1980, was admitted to probate in Lyon County, Kansas, on December 18, 1981. The estimated value of the probate estate was nine hundred thousand dollars. Appellants discovered in 1981 after Larkin's death, that William A. Larkin also had created a revocable trust on September 12, 1968. The chief beneficiary of the trust was St. Francis Boys' Home in Salina. The Lostutters were omitted from both the will and the trust.

Witnesses for the appellees refuted the testimony of appellants. Howard Gunkel, executive vice-president and trust officer of Emporia State Bank and Trust Company, the executor, reviewed all of Larkin's books, records, and documents at Larkin's home. Gunkel found no writing evidencing the contract with appellants.

Gunkel testified that after Larkin created the trust in 1968, he received detailed written instructions from Larkin regarding the proper management of the trust. The instructions provided all farm and commercial leases were to be in writing. Larkin often gave Gunkel written directions on other matters relating to the trust.

Roland Bowers, a tenant on Larkin's farm for over forty years, testified Larkin always insisted on having a written farm lease and there was not a year between 1942 and 1981 that a new written annual lease was not...