Springer v. Litsey
| Decision Date | 07 November 1959 |
| Docket Number | No. 41474,41474 |
| Citation | 345 P.2d 669,185 Kan. 531 |
| Parties | Carrie May SPRINGER, Appellee, v. Bessie E. LITSEY, Orpha R. Miller, C. H. Carrington, Edith G. Litsey, Appellees; Marine Gilliland, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
A father and his five adult children executed a family settlement agreement in which it was agreed among all of them that the father should have a life estate in all the property but that it should be immediately divided into five tracts, each to be immediately devised by an absolute deed in fee simple to each of the five children, with the further provision regarding oil and gas which might be found under the land that all of the five children and their named successors and heirs should share in such minerals equally; interpreted and held that such contract created a trust for the benefit of the father in all the property, and further held that it created a trust in each of the grantees in the deeds for the benefit of the five children, their named successors and heirs to the oil and gas in place and did not violate the rule against perpetuities.
H. W. Goodwin, Wichita, argued the cause, and Guy L. Goodwin, Wichita, was with him on the briefs for the appellant.
Martin S. Hall, Harper, argued the cause, and Max D. Hall, Anthony, was with him on the brief for the appellees.
This is an action for a declaratory judgment seeking construction of a written family settlement agreement and warranty deeds executed in accordance therewith, and for other equitable relief.
The pertinent facts are summarized and set out as follows: Columbus W. Litsey, a widower in his eighties, was the owner of 400 acres of land in Harper county, Kansas, which were under lease for oil and gas, and a residence in Wichitz. He had three adult sons and two adult daughters, his sold heirs-at-law--Ethan L. Litsey, Ora F. Litsey, Floyd R. Litsey, Carrie May Springer and Orpha R. Carrington (now Miller). On July 7, 1934, his five children and their spouses gathered for a family reunion at the home of Carrie May Springer in Pecos, New Mexico, where their father was living. He informed them that he was old and feeble and desired to convey to them all his real estate and that he wanted everything divided equally; that they should get together and make a division of his estate in parcels agreeable to themselves, providing for his care and maintenance during his lifetime.
In accordance with their father's request the sons and daughters withdrew to an available cabin to work out a tentative agreement. They divided the real estate into five tracts, valued them separately and determined the sums of money required to equalize them, making provision for the payment of notes owed by certain heirs. They then wrote the description of each tract on a separate slip of paper and each heir drew one of the five slips as his or her share. They were all aware of the fact that the father had recently executed an oil and gas lease on the 400-acre farm. They then returned to the Springer home and discussed the provisions of their tentative agreement with their father. At the conclusion of the discussion Orpha Miller (appellee) typed the family settlement in sextuplicate and it was thereupon signed by the father and his three sons and two daughters. It reads as follows:
'This being the wish of our father C. W. Litsey, through love and affection, we his five children in order to carry out his wishes and desires do enter into the following contract this 7th day of July 1934, Pecos, New Mexico, to wit;
'In case two or more wanted to purchase any of said property offered for sale at the fixed price, it would go to the highest bidder.
'3.
'All money's received from oil rights, leases or royalties of the said property to be divided equally among said heirs.
'4.
'In case of death of said heirs before death of father, property and money to go to husband or wife of deceased, or subject to a will of said heirs.
'5.
'In case of death of husband and wife that have no blood relation to wit;
E. L. Litsey to be equally divided among his children.
O. F. Litsey to be equally divided among his children.
Carrie May Springer to her estate.
Orpha R. Carrington to Homer Carrington.
Floyd R. Litsey to Marie Gilliland.
'6.
'All money's and holdings to be divided equally among heirs after all expenses are pid paid.
'7.
'We the heirs of C. W. Litsey wish to authorize Carrie May Springer to have full right and power to check on all money's and handle all papers concerning same; in case of death or inability to handle same, one of the heirs to be selected.
'8.
'In case any one of said heirs wishes to trade or exchange for E. L. Litsey's 80 acres N 1/2 NW 1/4 township 25-31-6 may do so without consent of heirs.
'Two notes of E. L. Litsey and Floyd R. Litsey in the amount of $600 each to be cancelled and the like sum to be paid to O. F. Litsey, Carrie May Springer and Orpha R. Carrington.
'11.
'This contract to be executed prior to the settlement of said estate.'
[The above agreement was duly signed by the father and the five children.]
At the same time the sons and daughters executed and signed the following separate supplemental agreements:
'The grantor reserves for himself the sole use and benefit of the income from this property so long as he shall live.'
'We, the undersigned; children of C. W. Litsey, hereby appoint Carrie Mae Springer to act as our agent for any funds coming into the estate of C. W. Litsey and authorize her to check against such funds now deposited or to be deposited in The First National Bank in Harper, Harper, Kansas.'
Simultaneously with the execution of the written family settlement agreement, the father, C. W. Litsey, executed separate warranty deeds to the respective children, which deeds were subsequently duly recorded.
The record discloses that the Litsey family was closely knit. Carrie May Springer was the agent and secretary for the family and kept all of them advised of family affairs. Her first deposit in the Harper bank was $200 derived from oil and gas lease rental. She collected the income from the property and paid the bills, and the brothers and sisters went over the accounts once a year. Upon their father's death on February 15, 1939, funeral bills and expenses were paid from the account, assets were collected, notes were canceled, the owelty was paid and the balance was distributed equally among the five children. Carrie testified, 'After father died some of the oil and gas money came in and I used it to make payments between the various heirs.' She testified that her brother Ora spoke of paragraph three of the agreement, which referred to moneys received from oil rights or leases or royalties, to the effect that if there were any received it would be divided just the same as any other part.
On April 29, 1953, Carrie wrote a letter to Myrtle Ann Litsey, widow of her deceased brother Floyd R. Litsey and mother of Marie Gilliland (appellant), stating in part,
As late as March 9, 1957, Carrie wrote to Marie...
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...gas royalty. Fundamentally, the interpretation of contracts requires a determination of the intention of the parties. (Springer v. Litsey, 185 Kan. 531, 535, 345 P.2d 669.) This intention must be determined as of the time the contract was executed. (Kittel v. Krause, 185 Kan. 681, 685, 347 ......
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...violation of the implied covenants." It is not the function of courts to make contracts but to enforce them as made. Springer v. Litsey, 185 Kan. 531, 345 P.2d 669 (1959). Of course, when a contract is ambiguous, the Court will hear evidence as to facts and circumstances existing prior to a......
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...be construed and interpreted in such a manner as to carry out and give effect to the mutual intention of the parties. Springer v. Litsey, 185 Kan. 531, 345 P.2d 669; Zelinkoff v. Johnson, 185 Kan. 489, 345 P.2d 665; Moore v. Jones, 10 Cir., 215 F.2d 719, 720, and Kansas cases therein cited.......
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...had the intention which its terms import. It is not the function of courts to make contracts but to enforce them as made (Springer v. Litsey, 185 Kan. 531, 345 P.2d 669, and Gardner v. Spurlock, 184 Kan. 765, 339 P.2d 65), nor is it within the province of the court to reform the instrument ......