Seal v. Seal

• Court: Kansas Supreme Court
• Citation: Seal v. Seal, 212 Kan. 55, 510 P.2d 167 (Kan. 1973)
• Decision Date: 12 May 1973
• Docket Number: No. 46729,46729
• Parties: Arthur Merle SEAL et al., Appellees, v. Cora SEAL, Appellant.

Page 167

510 P.2d 167

212 Kan. 55

Arthur Merle SEAL et al., Appellees, v. Cora SEAL, Appellant.

No. 46729.

Supreme Court of Kansas.

May 12, 1973.

Syllabus by the Court

1. Where under a joint, mutual and contractual will the survivor's right of disposal does not include the right to dispose of property without consideration, that contractual limitation extends to all property in the hands of the survivor, regardless of whether it came to him under the will or is in his own name at the time of the other's death.

2. In an action by remaindermen against a life tenant to prevent waste the court has the inherent equitable power in an appropriate case to appoint a receiver or trustee to protect the rights of the remaindermen.

3. Conduct which will render a party's hands unclean so as to deny him access to a court of equity must be willful conduct which is fraudulent, illegal or unconscionable. Neither conduct which is judicially approved, nor the institution of a suit for which there is probable cause, renders a party's hands unclean.

4. No issue, other than an issue going to the jurisdiction of the court over the subject matter of the litigation, will be considered on appeal unless included in the statement of points in the record on appeal, in accordance with Supreme Court Rule No. 6(d) (209 Kan. xxii.) relating to appellate practice.

5. In an action for waste in which a receiver was appointed for personal property subject to a life tenancy, it is held that the appellant life tenant has not demonstrated error in any of the rulings complained of.

Jay Don Reynolds, of Shultz, Shultz, Johnson & Reynolds, Chartered, Dodge City, argued the cause, and Donald E. Shultz, Dodge City, was with him on the brief for appellant.

John E. Fierro, of Bernie D. Frigon, Chartered, Dodge City, argued the cause and was on the brief for appellees.

FOTH, Commissioner:

This action was brought by remaindermen to prevent waste by a life tenant. The defendant life tenant, Cora Seal, is a widow in her mid-eighties. She has appealed from a judgment which, among other things, appoints a 'trustee' to take possession of all money found to have been derived from the sale of real estate in which she had a life estate. She does not contest the well-recognized power of a court of equity in an action for waste to appoint a receiver in a proper case to protect the rights of remaindermen. See Kimberlin v. Hicks, 150 Kan. 449, 94 P.2d 335. Rather, her primary contention is that the appointment of a trustee was an abuse of the trial court's discretion, and alternatively that at least a portion of the money should have been left in her hands because she owned it outright. (Note: The parties in this case have consistently referred to a 'trustee' rather than a 'receiver,' and we have adhered to their terminology; the function is the same.)

While this appeal was pending Cora Seal was adjudicated an incompetent person by the probate court of Pratt County, and the First National Bank of Pratt, Kansas, was appointed conservator of her estate. That institution has not participated in this appeal but has been substituted as appellant by order of this court pursuant to K.S.A.1972 Supp. 60-225(b) and 60-217(c). It is also the permanent trustee appointed by the court below in the order appealed from.

To understand the issues before us we must attempt to unravel a somewhat complicated tale of family finance and intrigue. Our task is complicated by the fact that several chapters do not appear in the record, either by omission of the parties or because the facts are not known. The story begins with a joint and mutual will which Cora executed with her late husband Arthur Seal on September 4, 1946, and a codicil the two of them executed on October 30, 1964. The dispositive paragraphs of the will were the second and third:

'SECOND: We bequeath and devise to the survivor of us all our property, real, personal and mixed, of every nature whatsoever and wheresoever situate, to use and enjoy for the natural life of said survivor; said survivor shall have complete power to sell, mortgage, lease, encumber and dispose of any or all of said property during his or her lifetime as he or she shall see fit without order of any Court, executing, acknowledgeing (sic) and delivering any and all instruments of writing necessary to properly carry out the said power of disposal.

'THIRD: At the death of the survivor of us, we bequeath and devise any and all property remaining not disposed of as set out above, except as is hereafter limited and controverted, to the following children as is hereafter set out, to-wit:

'One-half (1/2) of all property to Arthur Merle Seal, and one-eighth (1/8) each to Vesta Titerington, Zelma Adams, Ira Turner, and Lora Holden.'

We are told that of these remaindermen, Arthur Merle Seal is the only child of Arthur and Cora jointly, while the others are Cora's children by a prior marriage. (Arthur and Cora were married for 46 years.) By the 1964 codicil the third paragraph was amended to provide:

'THIRD: At the death of the survivor of us, we bequeath and devise any and all property remaining not disposed of as set out above, except as is hereafter limited and controverted, to the following children as is hereafter set out, to-wit:

'One-half (1/2) of all property to Arthur Merle Seal, and one-eighth each to Vesta Titerington, Zelma Adams, and Lora Holden, and one-sixteenth each to Jackie Holden Holland and Robert D. Holland.'

The amendment, it may be seen, deleted Ira Turner as a remainderman and gave his share to Jackie Holden Holland and Robert D. Holland. We assume that Jackie is the daughter of Lora Holden, and that Robert is her husband. No motive appears or is suggested for this substitution of beneficiaries, but Ira's deletion from the will strongly influenced the ensuing events.

Arthur Seal died on December 17, 1964, and the joint and mutual will and codicil were duly admitted to probate by the probate court of Gray County. Cora was appointed executrix in accordance with the terms of the will, and at her request her daughter Zelma T. Adams was appointed to serve with her as adminitratrix with will annexed. The two of them administered the estate and final settlement was entered on January 28, 1966. As part of the final settlement there was assigned to Cora, as life tenant under the terms of the will, three quarter-sections of land in Gray County appraised at $22,000 each, and a half interest in a house and six lots in the city of Cimarron, valued at $3,500, together with all other property in the estate.

Two years later, on January 29, 1968, a petition was filed in the probate court of Gray County for the voluntary appointment of a conservator, duly signed and verified by Cora. She was 79 years of age at that time. Her petition was granted the same day, and in accordance with her request Joe D. Butcher of Cimarron was appointed her conservator. A week later he petitioned the probate court for authority, inter alia, to sell Cora's automobile, which she could no longer drive. This he was authorized to do, for $2,000. He was also authorized to pay $3,110 to Cora's daughter Vesta Titterington, for caring for her during all of the preceding year.

Butcher's inventory as conservator reflected that Cora had sold two of the quarter-sections for $27,200 each, and he showed the sales contracts as assets. She also had over $16,000 in the bank. She no longer had the house and lots in Cimarron, but she did have a house in Garden City. (This inventory exemplifies the confusion of the record; it was filed February 29, 1968, yet it purports to include a real estate contract entered into in 1970. To confuse matters further, Cora's testimony indicates that she first contracted to sell all three quarter-sections, and later amended the contract to cover only two.) The conservator also asked to sell the Garden City house since Cora was no longer living there. Under court supervision it was sold for $10,000 and the household furniture for $450. The latter was purchased by Cora's daughter, Vesta Titterington, and a showing was made by the conservator that the price was the best obtainable with due diligence and exceeded three-fourths of its appraised value.

It appears that sometime during these first months of 1968 Cora found herself in a nursing home and became unhappy. She later testified that her son, Ira Turner, hired as her attorney the late Fred Hall, then practicing in Dodge City. He filed a petition on her behalf for the termination of the conservatorship. This was duly allowed, and Butcher filed his accounting. Hearing thereon was continued and he was finally discharged as conservator on July 1, 1968. He delivered to Cora $10,227 in bank deposits and cash, and certificates of deposit totalling $36,000.

On the same day that Butcher was discharged as conservator this action was commenced by all the remaindermen named in the codicil. This group, it will be recalled, excluded Cora's son Ira Turner. The petition alleged the terms of the will, and that Cora had given Ira a $5,000 bank money order without consideration. This, it was alleged, contravened the terms of the will and constituted waste. Plaintiffs prayed for the appointment of a trustee to take charge of the personalty (which by that time constituted the bulk of the estate) and that Cora be enjoined from further waste. A temporary restraining order was issued the same day, issued by the probate judge in the absence of the district judge, enjoining Cora 'from making any gifts or disposing of said properties contrary to the best interest of the remaindermen, which said would constitute waste.'

Six months went by before, on January 2, 1969, the district court appointed the same Joe D. Butcher who had been Cora's conservator to serve as 'temporary trustee.' He was directed to take possession of 'all monies, bank deposits and/or certificates of deposit in the possession of the defendant, ...