Shirk's Estate, In re

• Decision Date: 06 March 1965
• Docket Number: No. 43925,43925
• Citation: 399 P.2d 850,194 Kan. 424
• Parties: (Deceased). Betty SHIRK, Appellee, v. William S. SHIRK, Executor, et al., Appellants. Supreme Court of Kansas
• Court: Kansas Supreme Court

Page 850

399 P.2d 850

194 Kan. 424

In the Matter of the ESTATE of Gertrude McCourt SHIRK (Deceased). Betty SHIRK, Appellee, v. William S. SHIRK, Executor, et al., Appellants.

No. 43925.

Supreme Court of Kansas.

March 6, 1965.

Rehearing Denied May 1, 1965.

See 401 P.2d 279.

Syllabus by the Court

1. When an oral contract with a person since deceased is made the basis of an action for specific performance, it is not sufficient that the contract be established by a mere preponderance of the evidence but such evidence must be clear, cogent and convincing.

2. The term 'clear and convincing evidence' means that the witnesses to a fact must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the details in connection with the contract must be narrated exactly and in order; the testimony must be clear, direct and weighty, and the witnesses must be lacking in confusion as to the facts at issue.

3. Long delay in asserting a claim under an alleged oral contract with a person since deceased, while the property involved is being probated, casts grave doubts upon the integrity of the claim when asserted as well as upon the evidence offered to establish it.

4. The record in an action for specific performance of an alleged oral contract with a person since deceased is examined and it is held that under the facts, circumstances and conditions set out in the opinion the claimant's evidence was not sufficiently clear and convincing to establish the existence of the contract.

Emmet A. Blaes, Wichita, argued the cause, and Roetzel Jochems, Robert G. Braden, J. Frances Hesse, James W. Sargent, Stanley E. Wisdom, Cecil E. Merkel, Harry L. Hobson, Bruce W. Zuercher, L. D. Klenda, Charles M. Cline, Richard A. Loyd and Stephen M. Blaes, Wichita, and Jack O. Bowker, McPherson, were with him on the briefs, for appellants.

Evart Mills, McPherson, argued the cause, and Michael T. Mills, McPherson, was with him on the briefs, for appellee.

HATCHER, Commissioner.

This is an appeal from a judgment which found the existence of an oral agreement to provide for a share in an estate, and decreeing specific performance of the agreement against the deceased promisor's estate.

This appeal is another chapter of the protracted litigation following the death of Gertrude McCourt Shirk of McPherson, Kansas. (See Shirk v. Shirk, 186 Kan. 32, 348 P.2d 840; In re Estate of Shirk, 186 Kan. 311, 350 P.2d 1; In re Estate of Shirk, 188 Kan. 513, 363 P.2d 461; Shirk v. Shirk, 190 Kan. 14, 372 P.2d 556.)

The general facts which are not in dispute will first be stated.

Gertrude McCourt Shirk had been a resident of McPherson, Kansas for many years. She was originally married to A. L. Rankin. The marriage ended in divorce. A daughter born to this marriage died in infancy.

Gertrude later married William Snyder Shirk. Two children were born to this marriage. William S. Shirk was born December 27, 1911, and Betty Shirk was born July 3, 1913. They are referred to as Bill and Betty in the record and will be best identified here by such reference.

Bill and his present wife, Claire, have three children all of whom are minors. They are William, George and Mary Gertrude.

Betty was married to Leland Quantius in 1934. Carmen was born to this marriage October 1, 1937. Betty never returned to McPherson except for short visits thereafter. Betty divorced Leland Quantius April 1, 1939.

Gertrude adopted Carmen in 1940. The final order of adoption was entered January 11, 1941. On August 15, 1941, Betty married Walter E. O'Brien. In the fall of 1942, they commenced proceedings for the adoption of Carmen from Gertrude with her consent. A final decree for this adoption was entered June 14, 1943. Danny O'Brien, who is now a minor, was born to this marriage.

Gertrude died on September 17, 1957, leaving a will dated December 10, 1956, which was admitted to probate October 17, 1957. Gertrude died having jointly owned securities of $13,000.00 with Bill and approximately $20,000.00 with each of her five grandchildren which the executor was directed to deliver to each of the surviving owners. There was subject to administration under the will personal property of the appraised value of $226,492.42 and real property of the appraised value of $225,000.00. This property was bequeathed to Bill in trust for the benefit of himself and the five grandchildren. The income was to be distributed one-half to Bill and one-half to the five grandchildren. When the youngest grandchild reached the age of 30 years the corpus of the estate was to be divided in the same proportion. Betty was to receive $100.00 per month from the income of the estate subject to conditions.

When the will was read Betty seemed pleased and stated, 'I done a whole lot better than I expected.'

On September 23, 1957, Betty filed a petition for the allowance of the $100.00 per month, stating that she was in 'necessitous circumstances.'

On April 19, 1958, Betty brought an action against Bill to recover the sum of $200,000.00 alleging that he wrongfully influenced Gertrude to make the above mentioned will and fraudulently induced her to release her right to contest the will. This action was not successful. On July 14, 1958, five days before the expiration of the time for filing claims against the estate, Betty filed a petition for allowance of demand. The demand was for the value of one-third of the estate because of an alleged oral contract made with Gertrude during her lifetime. We will present only so much of the amended petition for allowance of demand as pertains to the alleged facts and circumstances under which the oral agreement was made:

'During 1939 Gertrude McCourt Shirk was very disappointed in the conduct and marital failures of her two children, William S. Shirk and Betty Shirk, and was displeased in the manner in which Betty Shirk was rearing Carmen Quantius. Following her divorce, your petitioner had difficulty in supporting herself and Carmen Quantius. She was required to be away from her child from time to time while engaged in her work and Gertrude McCourt Shirk believed Carmen Quantius was receiving inadequate care. In the fall of 1939, Gertrude McCourt Shirk took Carmen Quantius from the home of your petitioner at Topeka, Kansas and brought her to the residence of Gertrude McCourt Shirk in the Town House, a hotel owned and operated by Gertrude McCourt Shirk at McPherson, Kansas. * * *

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'Gertrude McCourt Shirk then orally proposed to your petitioner that if Betty Shirk would give her consent to the adoption of Carmen Quantius by Gertrude McCourt Shirk, that Gertrude McCourt Shirk would take good care of and rear Carmen Quantius, make Carmen Quantius her heir along with William Shirk and Betty Shirk, and that the three would share equally in her estate. Gertrude McCourt Shirk was deeply concerned in the health and welfare of her only grandchild and was afraid that if this grandchild died she would probably have no descendants after the death of her two children. Gertrude McCourt Shirk further stated that if thereafter Betty Shirk should be happily married and have a good home for Carmen Quantius, and if she and her husband should then desire to adopt Carmen Quantius, Gertrude McCourt Shirk would then give her consent to such readoption. Your petitioner believed that such an arrangement would be for the best interests and welfare of Carmen Quantius and she then accepted said proposal and agreed to do as her mother requested. The provision in said agreement that your petitioner would not be denied her one-third share as a daughter in the Gertrude McCourt Shirk estate was incidental to the main purpose of such agreement which was to provide for and secure the welfare of Carmen Quantius.

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'Soon after making such agreement, and after Betty Shirk had lived for a while in the Town House with Carmen Quantius and her mother, Gertrude McCourt Shirk told Betty Shirk that she didn't want her living in McPherson and that she wanted her to leave McPherson, Kansas and establish a home for herself elsewhere. Betty Shirk then asked Gertrude McCourt Shirk how such would affect her share in the estate of Gertrude McCourt Shirk and Gertrude McCourt Shirk then promised that if she would go immediately she would get her third share in her estate. Your petitioner then agreed to do as her mother requested.'

The petition for allowance of demand was transferred to the district court for trial. The trial court rendered judgment in favor of the claimant, and the executor and the grandchildren, through their various representatives, have appealed.

The appellants claim numerous errors on the part of the trial court. However, we will first consider appellants' contention that:

'The claimant completely failed to establish any contract with the decedent by the required standard of clear and convincing evidence.'

Before considering the evidence by which appellee sought to establish her claim we will give attention to the law which is to guide us in our consideration and determination of the question.

In considering the sufficiency of evidence to establish an oral contract with a person since deceased to devise, bequeath, convey or not disinherit, a much different rule is applied than is applicable to proof in the ordinary civil action. It is not sufficient that the claimant establish the contract by a preponderance of the evidence which usually satisfies the burden of proof, but the contract must be established by clear and convincing evidence.

Also in reviewing the sufficiency of such evidence on appeal a much different rule is applied than is applicable to the review of evidence in the ordinary civil action. If the trial court finds that such an oral contract was made this court will not only review the record for the purpose of determining if there is any substantial evidence to support the finding but will consider the evidence for the...