Wolf v. Rich

• Decision Date: 24 January 1942
• Docket Number: 35346.
• Parties: WOLF et al. v. RICH et al.
• Court: Kansas Supreme Court

121 P.2d 270

154 Kan. 636

WOLF et al. v. RICH et al.

No. 35346.

Supreme Court of Kansas

January 24, 1942

Rehearing Denied March 13, 1942.

Syllabus by the Court.

An alleged oral contract between a husband and wife, who owned separate property, that survivor would make a will disposing of all of the estate, both real and personal, by giving one-half thereof to nieces and nephews of husband and one-half to nieces and nephews of wife, was indivisible and within statute of frauds.

Generally if parol contract is entire and indivisible and part of it is within the statute of frauds, the whole contract is unenforceable, although part of it is not covered by the statute.

If an agreement to devise realty and to bequeath personalty is within the statute of frauds so far as the realty is concerned, the entire contract, if indivisible, is within the statute.

If alleged oral contract between a husband and wife, who owned separate property, that survivor would make a will disposing of all of the estate, both real and personal, by dividing and giving one-half thereof to nieces and nephews of husband and one-half to nieces and nephews of wife was actually made, the mutual promises of husband and wife touching distribution of their estates constituted an adequate "consideration" for the contract.

For the purpose of determining whether nieces and nephews of wife were entitled to specific performance of an alleged oral agreement between a husband and wife, who owned separate property, providing that survivor would make a will disposing of all of the estate, both real and personal, by dividing and giving one-half thereof to nieces and nephews of husband and one-half to nieces and nephews of wife, it was immaterial whether the wife, who died first, intended to perform or breach the alleged contract.

Nieces and nephews of wife were not entitled to specific performance of an alleged oral contract between husband and wife, who owned separate property, providing that survivor would make a will disposing of all of the estate, both real and personal by giving one-half thereof to nieces and nephews of husband and one-half to nieces and nephews of wife, where it appeared that upon death of wife, who predeceased husband, wife's nieces and nephews, with knowledge of the alleged contract accepted substantial benefits from wife's estate which resulted in injury to nieces and nephews of husband.

Where trial court reached correct conclusion in sustaining defendants' demurrer to the evidence, Supreme Court would not disturb the result, although conclusion was reached on the wrong ground.

The record in an action for the specific performance of an alleged oral contract between a husband and wife, who owned separate property, that the survivor would make a will disposing of all of the estate, both real and personal, by dividing and giving one-half thereof to the nieces and nephews of the husband and one-half to the nieces and nephews of the wife, examined and Held:

(1) The alleged oral contract was entire, indivisible and within the statute of frauds;

(2) The contract, if made, was supported by adequate consideration;

(3) For the purpose of the particular relief now sought by plaintiffs, nieces and nephews of the wife, it was immaterial whether the wife, who died first, intended to perform or breach the alleged contract;

(4) In view of conduct of plaintiffs narrated in the opinion, with knowledge of the alleged contract now pleaded, which conduct was wholly inconsistent with their rights under that contract and which resulted in injury to defendants, plaintiffs were not entitled to the relief sought under the contract pleaded;

(5) The demurrer to plaintiffs' evidence was properly sustained.

Appeal from District Court, Sedgwick County, Division No. 2; Robert L. Ne-Smith, Judge.

Action by Ruby Clark Wolf and others against Stella Rich and others for the specific performance of an alleged oral contract for equal division between plaintiffs and defendants of all property remaining after death of Mr. and Mrs. John F McManaman. From a judgment sustaining defendants' demurrer to the evidence, the plaintiffs appeal and the defendants cross-appeal.

Hal M. Black, L. M. Kagey, and Robert H. Nelson, all of Wichita (Austin M. Cowan, C. A. McCorkle, and W. A. Kahrs, all of Wichita, of counsel), for appellants.

William J. Wertz, Vincent F. Hiebsch, Milton Zacharias, Earl Blake, and Harold Blake, all of Wichita, for appellees and cross-appellants.

WEDELL Justice.

This was an action for the specific performance of an alleged oral contract for equal division between plaintiffs (nieces and nephews of Mrs. John F. McManaman), and defendants (nieces and nephews of John F. McManaman), of all property, real and personal, remaining after the death of McManaman and his wife. Defendants prevailed and plaintiffs appeal. Defendants have cross-appealed. We shall first direct our attention to the direct appeal.

A statement of a few undisputed preliminary facts disclosed by the pleadings will be helpful. The Mc.Manamans were married in 1889 and lived together until the death of Elta McManaman, who died intestate on June 28, 1939. Her husband died testate October 22, 1939. They had no children of their own and had adopted none. A will of John McManaman, executed July 13, 1939, was admitted to probate November 20, 1939. The will did not dispose of the property in accordance with the alleged oral agreement. By it $100 was bequeathed to each of the wife's eight nieces and nephews. The real estate and the remainder of the personalty was divided among his own nieces and nephews. In the will Cash K. Rife, husband of one of the testator's nieces, was appointed executor. At the time of the probate of the will plaintiffs appeared and petitioned the probate court for the appointment of a disinterested administrator. That petition was allowed and O. A. Boll was appointed as special administrator. The journal entry of probate recites appellants stated they were not contesting the will but were only requesting the appointment of a disinterested third party to administer the estate. On May 8, 1940, appellants filed a petition in the probate court. They set up an oral contract alleged to have been made by the McManamans and contended appellants' rights in the estate were fixed and determined by that contract and could not be altered by the will. A trial was had and a demurrer, interposed by appellees to appellants' evidence, was sustained. From that ruling appellants appealed to the district court. Their instant appeal is from an adverse judgment of the district court.

Trial by jury was waived in the district court. In that court appellees interposed a demurrer to appellants' evidence upon nine grounds. The trial court reserved its ruling thereon. Defendants introduced their evidence and plaintiffs introduced rebuttal testimony. After all parties had rested the court heard and considered the arguments of counsel for the respective parties upon the entire record, including the various grounds of appellees' demurrer to appellants' evidence. From the journal entry of judgment it clearly appears the court did not only rule upon appellees' demurrer but, in a separate and distinct paragraph, also made a specific finding of fact. That portion of the journal entry of judgment reads:

"And the court, after hearing the evidence and argument of counsel, finds:" (Here the court in four separate paragraphs overruled four separate and distinct grounds of defendants' demurrer and then in a separate paragraph is found the following specific finding).

"The court finds that the evidence on behalf of the appellants is not sufficient to establish the contract as pleaded in their amended petition." (Emphasis supplied.)

By reason of the above finding the court stated it would be unnecessary to rule on other questions of law. In addition to the above finding of fact the court sustained appellees' demurrer to appellants' evidence upon the ground the evidence was not sufficient to establish the contract pleaded.

Appellants contend the only question now involved is whether the district court erred in sustaining the demurrer to their evidence. In view of the specific finding of fact made by the trial court we cannot agree the ruling on the demurrer is the only question involved on the appeal perfected by the appellants. Appellants filed a motion for a new trial upon all the statutory grounds which was overruled. Appellants have also appealed from that ruling.

We shall first consider the order sustaining the demurrer to appellants' evidence. In this respect it is well to remember appellants do not contend appellees' evidence in any manner helped to establish appellants' cause of action. We, therefore, need look only to appellants' evidence in order to determine whether their evidence was sufficient to entitle them to the relief sought. The oral contract pleaded was: 5. "On or about the first day of May, 1939, and at other and divers times, and on numerous occasions a long time prior to the death of Elta McManaman, the said John Francis McManaman and Elta McManaman orally agreed that if one of them died, the survivor would make a will disposing of all of said estate, both real and personal, by giving and dividing one-half of the real and personal property to the nieces and nephews of said John F. McManaman and one-half to the nieces and nephews of Elta McManaman."

It is clear the alleged contract pertained to both real and personal property, was indivisible, and within the statute of frauds. Paton v. Paton, 152 Kan. 351, 103 P.2d 826 829, and cases therein cited. In the Paton case it was held: "The general rule is that if a parol contract is entire and indivisible and a part of...