Moore v. Miles (In re Estate of Moore)

Decision Date17 February 2017
Docket NumberNo. 115,628,115,628
Parties In the MATTER OF the ESTATE OF Roxie A. MOORE, Deceased, Harvey L. Moore, Appellant, v. Maureen E. Miles, Kenneth L. Kollenbach, Bart A. Moore, Laurie Moore, and Ryan C. Moore, Appellees.
CourtKansas Court of Appeals

53 Kan.App.2d 667
390 P.3d 551

In the MATTER OF the ESTATE OF Roxie A. MOORE, Deceased,

Harvey L. Moore, Appellant,
Maureen E. Miles, Kenneth L. Kollenbach, Bart A. Moore, Laurie Moore, and Ryan C. Moore, Appellees.

No. 115,628

Court of Appeals of Kansas.

Opinion filed February 17, 2017

Jason P. Brewer, of Wilson & Brewer, P.A., of Arkansas City, for appellant.

James D. Oliver, of Foulston Siefkin LLP, of Overland Park, and Sharon E. Rye, of the same firm, of Wichita, for appellee.

Before Gardner, P.J., Atcheson, J., and Stutzman, S.J.

Gardner, J.:

In this appeal, Harvey L. Moore asks us to reverse the district court's ruling which found his mother's transfer-on-death deed valid, although it was signed not by his mother but by his ex-wife at his mother's direction, as an amanuensis—one who copies or writes from the dictation of another. That transfer-on-death (TOD) deed left the real estate in question to Harvey's ex-wife, Maureen, and had the effect of disinheriting Harvey, who would have inherited the real estate under the laws of intestate succession absent a valid TOD deed. Finding no reversible error, we affirm.

Factual and procedural background

Roxie Moore married Harvey Moore, Sr. and they had one child, Harvey Moore, Jr. (Harvey). Roxie and Harvey Sr. made their living primarily by ranching and farming, and over the years acquired around 900 acres. When Roxie died, only 360 acres located north and west of Cambridge, Kansas, remained. This property was referred to as "the homeplace" and is the subject matter of this litigation.

Harvey married Maureen Miles, and they had two sons: Bart A. Moore and Ryan C. Moore. In the 1980s, Roxie and Harvey Sr. moved from the homeplace to Burden, Kansas, to be closer to their grandchildren, Bart and Ryan. Harvey Sr. passed away in 1985.

Roxie suffered a stroke in 1991 which greatly affected her speech, but she continued to live in her home in Burden for the next 12 years. Several witnesses testified that although Roxie's speech was impaired, one could communicate with her if one was patient. However, if Roxie did not like someone or became frustrated, she would not communicate.

In December 1992, Harvey and Maureen divorced. Harvey moved in with Roxie and stayed there for the next 11 years. Roxie and Harvey had what was described as a "strained relationship," but Maureen and her sons maintained a very close relationship with Roxie.

In August 2003, Roxie fell in her home in Burden and was taken to the hospital and then to Cumbernauld Village, an assisted living facility in Winfield, Kansas. Maureen made the arrangements to move Roxie to Cumbernauld. Over the next 6 years, approximately $265,000 was spent on Roxie's nursing care. Harvey was asked to help with the expense but paid nothing. Maureen visited Roxie multiple times a week, while Harvey never visited.

On April 29, 2004, Roxie signed a general durable power of attorney (DPOA) naming Maureen as her attorney-in-fact. Shortly thereafter, Roxie asked Maureen to assist in

390 P.3d 556

transferring the homeplace to her grandsons. Roxie wanted an attorney to draft a TOD deed to Maureen, who would hold the property until the grandsons were secure enough financially to own it themselves. Soon thereafter, an attorney drafted the TOD deed for Roxie which is the subject of this appeal.

The facts relating to the execution of the TOD deed are not disputed. On May 10, 2004, a notary public from the attorney's office went to Cumbernauld Village to notarize the TOD deed prepared by the attorney. The notary signed the document, but she could not testify at trial as to any particulars because she could not recall the event. Others present during the execution of the TOD deed were Maureen, Mildred Moore, Deborah Keely, Bart, and Ryan. Maureen testified that Roxie was in her bed experiencing pain. Maureen handed the TOD deed to Roxie, who read the document. Maureen asked Roxie if they could get the staff to help her out of bed, but Roxie refused and told Maureen, "I want you to sign it." Maureen took the TOD deed and signed Roxie A. Moore's name as grantor "by Maureen Miles, Power of Atty."

Bart and Ryan testified they were not visiting Roxie that day as witnesses. They were there only because it was Mother's Day. Both Bart and Ryan recalled the TOD deed being read out loud. Ryan asked Roxie, "Are you sure this is what you want to do, Grandma?" Roxie replied, "Yes." Deborah Keely, Maureen's friend, testified that Roxie told Maureen she was in a lot of pain and asked Maureen to sign the deed. She also saw Roxie look at the document and testified "something was read to her." The TOD deed was recorded the same day it was signed, directly after the general DPOA was recorded.

Roxie passed away intestate on September 15, 2009. Upon her death, the ownership of the homeplace was transferred to Maureen by operation of the TOD deed. Had the real estate transferred pursuant to the laws of intestate succession and without a TOD deed, Harvey would have owned the homeplace. In October 2009, Harvey expressed a desire to build a home on the homeplace and learned from Bart that Maureen was the record owner of the property. On November 3, 2009, Maureen and her current husband executed a TOD deed naming Bart and Ryan as the beneficiaries. Three years later, Maureen and her husband signed a warranty deed conveying the homeplace outright to Bart and Ryan.

Harvey later filed a petition for determination of descent of the homeplace. Bart and Ryan subsequently filed written defenses, claiming they were the legal owners of the homeplace, and filed a separate petition to quiet title and for declaratory judgment. After the two cases were consolidated, the parties filed cross-motions for summary judgment. The argument and the authorities cited in both motions focused almost exclusively on Maureen's legal authority under the DPOA to sign Roxie's name to the TOD deed.

The district court granted, for the most part, Harvey's motion for summary judgment, finding Maureen did not have express authority pursuant to the DPOA to sign the TOD deed as attorney-in-fact for Roxie. Bart and Ryan moved to reconsider based upon a nonagency theory as to the validity of the TOD deed—the amanuensis theory. The district court granted the motion and set the matter for trial, limiting the issues to the nonagency theory because Maureen's authority under the DPOA had previously been decided.

Following a trial on the amanuensis theory, the district court found that under Kansas law, a TOD deed may be signed by another. The district court then found that because Maureen was an interested amanuensis—one who would directly benefit from the transfer of title—the TOD deed was presumed invalid. Therefore, Maureen, Bart, and Ryan had the burden of proof to show that "Maureen's signing of Roxie's name was a mechanical act, in that Roxie intended to sign the TOD deed using the instrumentality of the amanuensis." The district court then addressed whether Roxie possessed the necessary mental capacity to execute the TOD deed and found that Harvey failed to meet his burden to show Roxie's lack of capacity. Next, applying a two-prong test to determine whether undue influence was exerted over Roxie, the district court found: (1) Maureen was in a confidential and fiduciary relationship

390 P.3d 557

with Roxie; and (2) suspicious circumstances surrounded the making of the TOD deed. Thus, undue influence was presumed. But the district court found sufficient evidence had been presented to overcome this presumption. The district court ultimately concluded that Roxie intended to sign the TOD deed, Maureen's signature was a mechanical act, and the presumption of invalidity of the TOD deed was overcome. Harvey timely appeals.

I. The district court did not err in admitting evidence that Roxie instructed Maureen to sign the TOD deed

We first address Harvey's contention that the district court erred by admitting parol evidence and hearsay that Roxie told Maureen to sign the TOD deed for her.

A. Parol Evidence

Harvey contends that the district court erred by "permit[ing] parol evidence to establish that Maureen signed the transfer-on-death deed not as attorney-in-fact but as the amanuensis of Roxie." Harvey apparently contends that Maureen's signing Roxie A. Moore's name as grantor "by Maureen Miles, Power of Atty." is part of the deed and is contradicted by oral testimony that she signed not as power of attorney, but in another capacity—as an amanuensis.

The amanuensis rule provides that "[a] signature to an instrument may be attached by ... the hand of another, at the request of a party...." Kadota Fig Ass'n. v. Case–Swayne Co. , 73 Cal.App.2d 815, 819, 167 P.2d 523 (1946). "The Oxford English Dictionary (2d ed. 1989) defines ‘amanuensis' as ‘one who copies or writes from the dictation of another.’ " Estate of Stephens , 28 Cal.4th 665, 671 n.1, 122 Cal.Rptr.2d 358, 49 P.3d 1093 (2002). Whether the district court erred in admitting this evidence raises a question of law which we review de novo. State v. Bowen , 299 Kan. 339, 348–49, 323 P.3d 853 (2014).

Generally, the parol evidence rule provides that oral testimony of a prior agreement cannot be used to vary the terms of a...

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