Winsor v. Powell
| Decision Date | 06 May 1972 |
| Docket Number | No. 46296,46296 |
| Citation | 497 P.2d 292,209 Kan. 292 |
| Parties | John G. WINSOR and Mabel I. Molzen, CoExecutors of the Estate of Wilbur M. Winsor, Deceased, Appellees, v. Sarah E. POWELL, Appellant. John G. WINSOR and Mabel I. Molzen, Co-Executors of the Estate of Wilbur M. Winsor, Deceased, Cross-Appellants, v. Leslie A. POWELL and Sarah E. Powell, Cross-Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Where the parties to a matter in litigation submit their case on all issues they may be held to have consented that the same be decided notwithstanding that an issue determined may technically have been outside the literal scope of the pretrial order. (Following Thompson v. Aetna Life Ins. Co., 201 Kan. 296, 440 P.2d 548.)
2. A person who is not a party to but who controls an action in cooperation with others is bound by the adjudication of litigated matters as though he were a party if he has a financial or proprietary interest in the judgment, or in the determination of an issue of fact or law with respect to the same subject matter or transaction, and if the other party has notice of his participation such other party is bound equally.
3. A defendant has the right to insist that an action against him be brought by the real party in interest as the statute provides, but the purpose of the statute has been attained if the defendant is not shut out of defenses of counterclaims and will be fully protected by the judgment against further liability on the same cause of action. (Following Rullman v. Rullman, 81 Kan. 521, 106 Pac. 52.)
4. Rules governing the creation and establishment of joint tenancies are set forth and discussed.
5. The ownership of property in joint tenancy is not incompatible with the legal concepts which govern the field of trusts, since the joint tenancy relationship was never intended to be used as a device to cloak injutice or to excuse overreaching.
6. No particular words or forms of expression are required for the creation of a trust and whether a turst may be said to exist is to be ascertained from the intention of the parties as manifested by the conduct, the words used, and all the surrounding facts and circumstances.
7. In ascertaining whether a conveyance is or is not effective, and if it is effective, what that effect is, the intent of the conveyor is an important and often a decisive factor.
8. Where a transfer of property is made in reliance upon an oral agreement to hold in trust or for the benefit of another party or parties, and the agreement is repudiated, an inference of fraud may be drawn relating back to the time the promise was made.
9. Although a gift may not become effective unless it is accompanied by a delivery, the delivery thereof may be constructive as well as manual.
Emmet A. Blaes, of Jochems, Sargent & Blaes, Wichita, argued the cause, and Edwin G. Westerhaus, of Wheeler, Westerhaus & Wheeler, Marion, was with him on the brief for appellant and cross-appellees.
Thomas A. Wood, Wichita, argued the cause, and Roger H. Morse, of Morse & Batt, Marion, was with him on the brief for appellees and cross-appellants.
This is a consolidated appeal from judgments entered in two lawsuits, both of which stem from controversies arising between members of the family of the decedent, Wilbur M. Winsor, often referred to herein as Wilbur. The executors named in the will of Mr. Winsor, being two of his six children, instituted both actions, one against the testator's daughter, Sarah E. Powell, the other against Sarah and her husband, Leslie A. Powell. Both actions involve rights in personal property titled either in the names of Wilbur and Sarah as joint tenants, or Wilbur and Leslie as joint tenants.
The cases were tried jointly to the court, which, after an extensive hearing, entered judgment in favor of the executors against Mrs. Powell, or Sarah, in the one case and in favor of Leslie and Sarah in the other. The losers in each case were dissatisfied and, accordingly, Sarah appealed from the judgment entered against her while the executors appealed from the judgment against them in their case against Leslie and Sarah.
Wilbur Winsor was a long time farmer and rancher of this state who amassed considerable wealth during his lifetime. In 1899 he was married to Bird Winsor who died April 12, 1955, at which time Wilbur was 79 years of age. Six children were born to that union, three sons, Glenn, Orville, and John and three daughters, Gretchen Runyon, Sarah Powell, and Mabel Molzen.
The monastic life was not long for Wilbur and on October 9, 1955, he took unto himself a second wife, Ella. This happy event brought little joy to the Winsor children and a certain coolness developed toward Ella on their part, although relations grew somewhat more normal later on.
On April 9, 1967, Wilbur died testate and two of his children, John Winsor and Mabel Molzen, were appointed executors of his estate. At Wilbur's death Sarah's brothers and sisters discovered that Wilbur's stock in the Marion National Bank was held in joint tenancy with his son-in-law, Leslie, and all the rest of his personal property including bank accounts, savings and loan accounts, mutual fund shares and even the Kansas title to a 1962 Chevrolet car was held in the names of Wilbur and his daughter, Sarah, as joint tenants with right of survivorship. When this intelligence came to light, great was the consternation in the Winsor family and within a few months the present actions were commenced. commenced.
The petition filed against Sarah alleges that a close personal confidential relationship existed between Wilbur and Sarah at all material times; that on March 14, 1963, Sarah received a power of attorney from Wilbur and thereafter managed her father's property as a fiduciary; that Sarah furnished no consideration for any of the personal property held by Wilbur and herself as joint tenants; that Wilbur did not intend to make a gift of the property to Sarah but that the property was transferred and conveyed to Sarah as trustee to be held in trust for the benefit of Wilbur's heirs and the beneficiaries under his will; that any gift or transfer was obtained by undue influence; that Sarah was estopped to claim title to the property; and that Wilbur was incompetent when he transferred the property to Sarah and himself in joint tenancy. The prayer of the petition asked that Mr. Winsor's estate be declared the sole owner of said personal property; that Sarah be declared to hold the property in trust for the estate; that she be required to deliver the property to the executors of the estate and to account for the income therefrom.
In a memorandum decision the trial court entered general findings of fact followed by certain conclusions in which the following were included:
'1. The court finds that the contracts which on their face purport to create a 'joint tenancy' between Wilbur M. Winsor and Sarah E. Powell did in fact create a trust for the benefit of all the children of Wilbur M. Winsor.
'2. The court finds that the intention of Wilbur M. Winsor at the time of the creation of the contracts was for the purpose stated in conclusion No. 1 above.
'8. The court finds that the intention of the parties or party to the contract is paramount, and the 'joint tenancy phrase' must be considered in the light of all the evidence. The mere words when attacked cannot be self-supporting.
theory of undue influence accruing to the benefit of the defendant Sarah E. Powell alone. The court finds undue influence was exerted prior to the contracts by Sarah E. Powell for the benefit of all the children and to the detriment of Wilbur M. Winsor's second wife, Ella Rutherford Winsor.
The following order was entered in the case against Sarah:
'The court finds for the plaintiff against the defendant Sarah E. Powell in Case No. 13,914, and orders that the defendant assign, transfer, and deliver the property in question to the plaintiffs herein, and that at said time the defendant be required to file an accounting as to all income, proceeds, and accretions therefrom.'
To avoid confusion we shall discuss the appeal in each case separately and will first turn our attention to Sarah's appeal from the judgment which was entered against her. In doing so we will refer to Sarah either by name or as defendant.
Sarah phrases her first point on appeal in this fashion:
'The court erred in purporting to exercise jurisdiction to enter a judgment on issues not raised in either the pleadings or the pretrial order.'
Her argument is that the plaintiffs predicated their action on the theory of a trust for the benefit of Wilbur's estate while the court found it was for the benefit of Wilbur's children.
The point is not well taken. The petition filed against Sarah alleges in paragraph nine that any property transferred to Sarah was transferred to her as trustee only, to be held in trust for the heirs of Wilbur M. Winsor and the beneficiaries under his will. The beneficiaries under Wilbur's will were the six Winsor children. The petition clearly raises the issue of a trust for Wilbur's children.
Moreover, the plaintiffs requested a finding of fact that Wilbur's intent in transferring his property in joint tenancy to himself and Sarah was to enable Sarah to manage the property during his lifetime and, on his death, to divide the same among his six children and his widow. Again, in the trial brief furnished the court, the plaintiffs contended that the transfer was in trust for the benefit of the beneficiaries under Wilbur's will.
It is true that in its pretrial order defining the issues to be...
To continue reading
Request your trial
-
Phelps v. Hamilton, 95-3251
...may not be rendered for or against one who is not a party to the action or who does not intervene therein. See Winsor v. Powell, 209 Kan. 292, 497 P.2d 292, 297 (1972). Kansas, however, recognizes an exception to this rule A person who is not a party but who controls an action, individually......
-
Wood's Estate, Matter of
...is expressed at the time the transaction is initiated. (In re Estate of Matthews, 208 Kan. 492, 506, 493 P.2d 555; Winsor v. Powell, 209 Kan. 292, 299, 497 P.2d 292; and Pace v. First National Bank of Osawatomie, Kansas, 404 F.2d 52, 54 (10th Cir. 1968).) (See also, Annot., 43 A.L.R.3d 971,......
-
Cady v. Cady
...property without regard to the other spouse. (Eastman, Administrator v. Mendrick, 218 Kan. 78, 542 P.2d 347 (1975); Winsor v. Powell, 209 Kan. 292, 497 P.2d 292 (1972).) At that time a spouse possesses only an inchoate interest in real estate held by the other spouse. (McGill v. Kuhn, 186 K......
-
Universal Engraving Inc v. Metal Magic Inc
..."a judgment may not be rendered for or against one who is not a party to the action or who did not intervene therein." Winsor v. Powell, 497 P.2d 292, 297 (Kan. 1972); see also Ryder v. Farmland Mut. Ins. Co., 807 P.2d 109, 119 (Kan. 1991) (same). Kansas courts nevertheless may apply the co......
-
The Capricious Operation of the Kansas Elective Share: Feast or Famine for the Surviving Spouse
...In re Estate of Fast, 169 Kan. 238, 218 P.2d 184 (1950) also held that joint tenancy was not subject to the right of election. [FN16]. 209 Kan. 292, 497 P.2d 292 (1972). [FN17]. Id. at 297. [FN18]. 218 Kan. 78, 542 P.2d 347 (1975). [FN19]. Id. at 84. [FN20]. 201 Kan. 756, 443 P.2d 331 (1968......