Quinton v. Kendall

• Decision Date: 12 February 1927
• Docket Number: 27,200
• Citation: 253 P. 600,122 Kan. 814
• Parties: MARY K. QUINTON, Appellant, v. FANNIE L. KENDALL, Appellee
• Court: Kansas Supreme Court

253 P. 600

122 Kan. 814

MARY K. QUINTON, Appellant, v. FANNIE L. KENDALL, Appellee

No. 27,200

Supreme Court of Kansas

February 12, 1927

Decided January, 1927.

Appeal from Shawnee district court, division No. 3; OTIS E. HUNGATE judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WILLS--Construction--Nature of Estate Created. The will of plaintiff's father and defendant's husband examined and held to have devised the testator's entire estate to defendant and not to be fairly susceptible of an interpretation that it devised a life estate to defendant and remainder to plaintiff and her sister.

2. FRAUDS, STATUTE OF--Oral Agreement to Hold Land in Trust. An alleged oral agreement of plaintiff and defendant (and others) following the death of the testator in 1899 whereby defendant agreed to hold in trust for plaintiff and her sister the estate devised in fee to defendant and to make a will bequeathing that estate to them, was void under the statute of frauds, and under the statute of trusts, and was without consideration.

3. SAME--Oral Agreement Concerning Lands--Effect of Later Putting Agreement in Writing. Certain agreements made twenty-two years after the alleged oral agreement referred to in syllabus paragraph 2, which set down in writing what the parties could remember of the terms of the original oral agreement, did not supersede the earlier unenforceable oral agreement, and a fallacious premise in such later agreements touching the nature of the testator's devise rendered them abortive to bind the defendant.

4. JUDGMENTS--Foreign Administration of Estate--Res Judicata. A judgment of a Michigan probate court having jurisdiction of the parties and subject matter construing a will and administering an estate in accordance with Michigan law is not open to collateral attack, and when such judgment was neither reversed nor modified by appeal, it is res judicata.

5. APPEAL AND ERROR--Time for Appeal--Construction of Will. A construction of a will elicited by appellant's demurrer and at her solicitation, and which went to the merits of the action and necessarily controlled it, is conclusive when no appeal was taken therefrom within six months--following Andrews v. Glidden, 122 Kan. 291, 251 P. 1078.

6. TRIAL -- Reception of Evidence -- Burden of Proof -- When Immaterial. Where each party to a lawsuit had a fair opportunity to present all his evidence, the question as to which litigant had the burden of proof is immaterial unless the trial court's ruling thereon shifts the risk of non-persuasion from the litigant who must bear it in order to prevail in the action.

7. APPEAL AND ERROR--Review--Excluded Evidence. Exclusion of evidence is not a basis of error when the record does not show what it was.

8. CONTINUANCE--Costs--Discretion of Court. Without a showing of prejudice, error cannot be based on the granting of a continuance, and the assessment of costs incurred thereby is within the trial court's discretion.

9. EVIDENCE--Exhibits--Necessity of Probative Force. Certain exhibits proffered in evidence by plaintiff considered and held to have been without probative force and not improperly excluded.

10. TRIAL -- Reception of Evidence -- Reopening Case -- Discretion of Court. The privilege of reopening a case for the introduction of further testimony is one which the trial court at its discretion may grant or deny, and no abuse of that privilege appears where the record does not show what further evidence would have been adduced.

11. JUDGMENTS--Effect of Improper Reason. Rule followed that a trial court's reasons for a judgment are immaterial when the judgment itself is correct.

12. WILLS--Construction--Effect of Family Understanding. A family understanding of a clear and simple testamentary devise cannot affect its text and significance when its specific terms have to be subjected to judicial construction.

13. TRIAL--Remarks of Trial Court After Judgment. Remarks of trial court after pronouncing judgment considered and held to furnish no basis for reversing the judgment.

Eugene S. Quinton, of Topeka, for the appellant.

T. F. Garver, A. M. Harvey and Randall C. Harvey, all of Topeka, for the appellee.

Dawson J., Harvey, J., not sitting.

OPINION

DAWSON, J.:

This was an action between a daughter and her mother in which the plaintiff sought to enforce an alleged oral agreement whereby the mother many years ago bound herself to hold the entire estate of her husband, devised to her by his will, as a life estate in her own behalf, and to devise that estate to plaintiff and her sister, daughters of defendant and her deceased husband.

The petition alleged that in 1899 defendant's husband, L. B. Kendall, died testate, devising all his property in fee to his two daughters, the plaintiff, Mary K. Quinton, and Mrs. Elizabeth K. Keely, subject to a life estate in favor of his wife, Fannie L. Kendall, defendant herein. It alleged that soon after the death of L. B. Kendall, defendant and her two daughters and their husbands, Eugene S. Quinton and Thomas Keely, discussed and inventoried the estate and orally agreed that the will of Kendall, deceased, should be withheld from probate, and that all the property of Kendall's estate owned or possessed by him at the date of the execution of his will, not disposed of to others than members of his own family, should be converted into money and invested in good securities in trust by defendant, Fannie L. Kendall, to provide an immediate income for herself as life taker, and as her part and obligation under this oral contract defendant agreed to hold the property in trust and preserve the estate and to make a will devising it in fee to her daughters, Mrs. Quinton and Mrs. Keely.

Plaintiff further alleged that in keeping with this oral agreement the will of Kendall was withheld from probate for many years, and defendant did make a will devising all her estate to Mrs. Quinton and Mrs. Keely. In 1921 Mrs. Keely died, and defendant, then living in Michigan, notified plaintiff that she proposed to make a new will. Plaintiff protested against that proposal as being at variance with the oral agreement made some twenty years before; and plaintiff alleged that it was then agreed that the "oral understanding and agreement in substance and the reasons therefor, as near as the same could be remembered," should be reduced to writing, which was done as follows:

"MEMORANDUM OF AGREEMENT.

"November 14, 1921.

"WHEREAS, Mr. L. B. Kendall at his death left a will, naming certain executors, by which he devised all his property, real and personal, to his wife, Fannie L. Kendall, for life, and at her death to his daughters and only children, Elizabeth and Mary, who at his death were married and were Mrs. Thomas Keely and Mrs. Eugene S. Quinton, that at the time of his death the wife, Fannie L. Kendall, had and has ever since had and now has the possession of said will.

"But, at that time it was suggested, in order that she might have the full enjoyment of said property, and for the purposes of obtaining possession of the same, it being to a large extent real estate, that her two daughters and their husbands join in a quitclaim deed to her for all interest in said estate, upon the understanding and agreement that Fannie L. Kendall would make a will, devising all of the property equally to her two daughters, Elizabeth and Mary, Mrs. Thomas Keely and Mrs. Eugene S. Quinton; and that, accordingly, quitclaim deeds were executed, to all interests in the estate, by her daughters, above named, and their husbands joining.

"And, in furtherance thereof, the said Fannie L. Kendall made and executed a will, in accordance with said agreement, willing all of said estate, at her death, equally to Mrs. Thomas Keely and Mrs. Eugene S. Quinton.

"And that by reason of such arrangement the will of Mr. L. B. Kendall has never been probated and the estate administered in accordance therewith.

"At the time it was not deemed necessary to have the understanding and agreement reduced to writing, but that on account of unforeseen conditions arising we believe it is best, that a statement of the same would prevent any misunderstandings and is advisable.

"(Signed)

FANNIE L. KENDALL,

"MARY K. QUINTON,

"by EUGENE S. QUINTON

and

"EUGENE S. QUINTON."

Plaintiff alleged that defendant also agreed in writing to make a full report of the estate to plaintiff's husband within sixty days, and to keep him informed of any changes in its character. Part of this second agreement reads:

"TOPEKA, KANSAS, November 17, 1921.

". . .

"Sixth. That Fannie L. Kendall is to have the use and full enjoyment of said estate so long as she may live; but at her death said estate is to revert to and become the property of Elizabeth K. Keely and Mary K. Quinton, the same as if either or both were surviving.

"(Signed)

FANNIE L. KENDALL,

"MARY K. QUINTON,

"by EUGENE S. QUINTON

and

"EUGENE S. QUINTON."

Shortly after the execution of these written agreements, Thomas Keely, husband of Mrs. Keely, died, and thereupon defendant notified plaintiff that she would not carry out the contracts written or oral which she had made touching the disposition of her estate, and that she proposed to devise and bequeath all her property to her grandchildren, sons of Mr. and Mrs. Keely.

"Plaintiff further states, that under and by virtue of the agreement the said Fannie L. Kendall was to have and hold in trust, after all lawful debts had been paid, the residue of the estate at the time of the death of the testator for the said Elizabeth K. Keely and Mary K. Quinton, the life interest in the use of the income from the same to the said Fannie L. Kendall for and during her life.

"Plaintiff therefore states, if...