Noel v. Noel

• Decision Date: 14 July 1973
• Docket Number: No. 46863,46863
• Citation: 212 Kan. 583,512 P.2d 324
• Parties: James E. NOEL et al., Appellants, v. Helen M. NOEL et al., Appellees and Cross Appellants, v. GRAINFIELD TELEPHONE COMPANY, Cross Appellee.
• Court: Kansas Supreme Court

Page 324

512 P.2d 324

212 Kan. 583

James E. NOEL et al., Appellants, v. Helen M. NOEL et al., Appellees and Cross Appellants, v. GRAINFIELD TELEPHONE COMPANY, Cross Appellee.

No. 46863.

Supreme Court of Kansas.

July 14, 1973.

Syllabus by the Court

1. The relationship of a life tenant to remaindermen is that of trustee of quasi trustee. Absent a specific provision to the contrary, any sale of the principal of the life estate by a life tenant must be a bona fide sale for the best price obtainable.

2. A power granted to a life tenant to sell all or any part of the estate as he thinks necessary for his 'comfort and necessities' does not carry with it the power to dispose of the property by gift.

3. 'Love and affection and one dollar' is not adequate consideration for the sale of real estate by a life tenant who has a duty to seek the best price obtainable.

4. When the trial court finds that a party has not sustained his burden of proof, that finding must be affirmed on appeal absent a showing of bias, passion or prejudice on the part of the trial judge, or of an arbitrary and capricious disregard of undisputed evidence.

5. In an action by remaindermen to quiet title to certain real estate previously conveyed by the life tenant, the record is examined and it is held: (1) the trial court erred in finding there was adequate consideration for the conveyance; (2) the trial court did not err in denying relief on the grantee's cross claim.

Douglas C. Spencer, Oakley, argued the cause, and Corwin C. Spencer, Oakley, was with him on the briefs for the appellants and cross appellee.

E. Charles Hageman, Stockton, argued the cause and was on the brief for the appellees and cross appellants.

FOTH, Commissioner:

The primary issue in this case is whether a conveyance of land by a life tenant was authorized by the power of sale given to him by the will under which he acquired his life estate.

The life tenant, Floyd K. Noel, was for many years married to Phyllis N. Noel, and when Phyllis died in December, 1957, they had five adult sons. Her will, which was a joint and mutual will with her husband Floyd, contained the following pertinent provisions:

'ITEM TWO. We hereby give, devise and bequeth (sic) to the survivor of us all our property, real and personal to have for and during the term of life of the survivor of us with full power and authority to sell all or any part of the same as shall be thought necessary (sic) by such survivor for the comfort and necessities of such survivor and such survivor shall not be required to ask any court for authority to do so.

* * *

* * *

* * *

* * *

* * *

* * *

'ITEM SIX. We hereby give, devise and bequeath all the remainder of our property, subject to the life estate of our survivor of us to our five dear sons heretofore named, share and share alike.'

There passed to Floyd under these provisions, along with other property, the family home and three lots in Grainfield, Kansas, which had been owned by Phyllis outright. This is the property in controversy, and was known by the parties as the 'Noel home.'

After Phyllis died Floyd, as is the wont of many widowers, sought solace in a further matrimonial venture. On September 14, 1958, he married Helen M. Noel, one of the appellees and the grantee of the challenged conveyance. Floyd and his new bride fixed up the Noel home, moved in, and resided there until Floyd died on November 12, 1960.

For the month or so they were refurbishing the Noel home the newlyweds resided in a house belonging to the new Mrs. Noel called the 'Bacon place.' After they moved they rented out the Bacon place for about six months, and then apparently let it stand vacant for several months.

In April, 1960, they were approached by their new tenant, Leo Ross, with a proposition to buy the Bacon place. They had been discussing the advisability of such a sale for some time as a way to avoid paying taxes on both homes. The result was a contract of sale dated April 18, 1960, under which Ross agreed to pay them $50 per month on the purchase price. Ross apparently paid for a year or two and then defaulted-the total sales price does not appear in the record. In any event, this sale was never consummated. Helen refused to execute a deed because, she said, she anticipated Ross's default, and also because she would then have no place of her own.

Which brings us to the deed in question in this action. It is a general warranty deed purporting to convey the Noel home to Helen in fee simple, executed by Floyd on May 5, 1960. (This, it will be noted, was some three weeks after Floyd and Helen contracted to sell the Bacon place to Ross.) The consideration recited in the deed was 'Love and affection and one and no/100 DOLLARS.' No revenue stamps were affixed.

After Floyd's death on November 12, 1960, Helen continued to live in the Noel place. On October 14, 1970, she deeded it to the appellees W. Ralph and M. Margaret Long, reserving a life estate. She was living with the Longs in Kirwin, Kansas, at the time of trial.

This action was brought by the four surviving sons of Floyd and Phyllis, and the children of a deceased son, to quiet their title to the Noel home as against Helen and her grantees, the Longs. On the primary issue the plaintiffs contended (by way of reply) that the deed from Floyd to Helen was a gift, and as such was invalid under the limited power of disposal contained in Phyllis's will. They asserted that Helen's continued occupancy of the Noel home after Floyd's death was under an oral understanding with them that she could live there as long as she liked, so long as she kept up the premises and paid the taxes.

The answer of Helen and the Longs set up the deed from Floyd as a bona fide exercise of his power of disposal, Helen alleging 'That the deed given by the said Floyd K. Noel to this defendant was for his comfort and necessities in that the proceeds from the sale of her former home (the Bacon place) were used to modernize and improve the home on said 3 lots which he occupied until his death.'

On this issue the trial court, sitting without a jury, found in favor of Helen:

'No. 2

'The Court finds from the evidence that the conveyance is in fee simple was made in all particulars within the power granted in the will to Floyd K. Noel, the survivor in the will.

(a) The conveyance was made under circumstances 'thought necessary by such survivor for the comfort and necessities of such survivor.'

(b) The conveyance was made for valuable consideration, namely 'love and affection and one and no/100 dollars,' and was a sale.

(c) The conveyance was freely and voluntarily made, for valuable consideration, made in good faith, and without fraud, and as the result of a sale.

'The one dollar was delivered by the grantee, and included in the love and affection consideration, were the following by the grantee: Contributing her savings to the joint account; contributing her social security payments and wages to the joint account; contracting to sell and convey her separate house property in Grainfield, Kansas, with the proceeds to the joint account; contributing to the repairs and upkeep of the property which she and the grantor, her husband, occupied as their home; maintaining a happy home life for the grantor from the time of their marriage, September 14, 1958, until the time of his untimely death November 12, 1960.

'No. 3

'The conveyance of which Defendants' exhibit #5 is a copy of the deed, is valid as a conveyance in fee simple of the real estate described therein; the Court finds no grounds for declaring it void, and it should not be declared void.'

The plaintiffs have appealed, insisting that the deed to Helen was gratuitous and thus outside Floyd's power of sale. We are compelled to agree.

The parties all concur in the proposition that a power of sale such as was conferred upon the life tenant here does not carry with it the power to dispose of the property by gift. Klooz, Administrator v. Cox, 209 Kan. 347, 496 P.2d 1350; Baldwin v. Hambleton, 196 Kan. 353, 411 P.2d 626; Stump v. Flint, 195 Kan. 2, 402 P.2d 794; In re Estate of Tompkins, 195 Kan. 467, 407 P.2d 545; Pearson v. Orcutt, 106 Kan. 610, 189 P. 160.

Certain other principles are also applicable. Thus, Floyd's relationship to the remaindermen was of a fiduciary nature. In Windscheffel v. Wright, 187 Kan. 678, 360 P.2d 178, 89 A.L.R.2d 636, this court held:

'A life tenant with power to sell real property devised to her for life with remainder to designated persons, is a trustee or quasi trustee and occupies a fiduciary relation to the remaindermen, and in the exercise of that power, she owes to them the highest duty to act honestly and in good faith by selling the...