Zink v. Carlile

• Court: Colorado Supreme Court
• Writing for the Court: MOORE; JACKSON
• Citation: Zink v. Carlile, 248 P.2d 306, 126 Colo. 208 (Colo. 1952)
• Decision Date: 18 August 1952
• Docket Number: No. 16779,16779
• Parties: ZINK v. CARLILE et al.

Page 306

248 P.2d 306

126 Colo. 208

ZINK v. CARLILE et al.

No. 16779.

Supreme Court of Colorado, en Banc.

Aug. 18, 1952.

Bellinger & Faricy, Pueblo, for plaintiff in error.

Seavy & Seavy, Pueblo, for defendant in error.

MOORE, Justice.

We will herein refer to the parties by name or as they appeared in the trial court, where plaintiff in error was plaintiff, and defendants in error were defendants.

Prior to April 12, 1944, Carrie M. Zink, B. A. Carlile, C. B. Carlile and Hatta C. Whitfield were partners in the ownership of certain real and personal property, in the income from which each of said partners had shared equally. They were the sons and daughters of one James N. Carlile, from whose estate the assets of said partnership had their origin. On April 12, 1944, Carrie M. Zink died leaving as her sole and only heir-at-law her husband, Norbert Zink. Prior to her death all of the partnership assets had been transferred to C. B. Carlile and B. A. Carlile as trustees for the partners, and said trust relationship existed at all times pertinent to the issues in this cause.

On April 19, 1944, Norbert Zink entered into an agreement in which he was the first party, and C. B. Carlile, B. A. Carlile and Hatta C. Whitfield are described as the second parties. By the terms of this contract it was provided, inter alia:

'Now, therefore, in consideration of the promises and agreements of second parties hereinafter contained to be kept and performed by them, first party hereby and herein renounces, disclaims and acknowledges, for himself, his heirs and administrators, that he has no claim in or to any part or share of the property hereinbefore described and that the same be and hereby is declared to be the property of second parties, their heirs and administrators, in such proportion as may be determined between themselves and that he will not hereafter assert or attempt to assert any claim to any part thereof.

'In consideration of the promises hereinbefore made by first party, second parties, for themselves, their heirs and administrators, covenant and agree:

'1. That first party may, during the balance of his natural life, occupy the real premises heretofore occupied by himself and his deceased wife, Carrie M. Zink, without the payment of any rental therefor.

'2. That they will, during the balance of the natural life of the said first party, pay or cause to be paid to him annually a sum equal to one-fourth (1/4) of the net proceeds of the income of the property hereinbefore described.

'3. That they will, in the event the one-fourth (1/4) share in and to the above property owned by the said Carrie M. Zink, causes her estate to exceed the statutory allowance to a husband without the payment of an inheritance tax, pay or cause the same to be paid without cost to said first party.

'In the event there should be any state or federal taxes due on the transaction herein mentioned, second parties, for themselves, their heirs and administrators, agree to save first party harmless therefrom.

'Each of the parties hereto had entered into the foregoing agreement with a full and complete understanding of his or her legal rights in and to the subject matter herein mentioned and has executed this agreement freely and voluntarily without coercion or undue influence of any kind or nature.'

On April 21, 1947, C. B. Carlile, B. A. Carlile and Hatta C. Whitfield, as first parties entered into a second contract with Norbert Zink, as second party, the effect of which was to dissolve the partnership between the first parties and to authorize sistribution of the personal property so that one-third thereof should thereafter be owned by each of the first parties individually. This instrument contained, inter alia, the following provisions:

'Whereas, by an agreement entered into on April 19, 1944, the first parties hereto covenanted and agreed with second party that he might occupy the real premises known and described as 44 Carlile Place, Apartment 1, Pueblo, Colorado, during the balance of his natural life without the payment of any rental therefor, and that first parties during the balance of the natural life of second party would pay or cause to be paid to him annually a sum equal to one-fourth (1/4) of the net proceeds of the property hereinbefore described.

'Now, Therefore, it is mutually agreed that the partnership now existing between first parties be and the same hereby is dissolved, and each of the first parties acknowledges receipt of his or her proportionate share of the assets of said partnership, except the real estate herein described, and each of said parties agrees that the record title to said real estate shall remain as the same now is, and that B. A. Carlile shall be and remain the record owner thereof for the use and benefit of first parties hereto.

'That second party during the remainder of his natural life shall occupy the real premises known and described as 44 Carlile Place, Apartment I, Pueblo, Colorado, without the payment of any rental therefor, and shall, from the net income of the real estate herein described, receive an amount equal to one-fourth (1/4) of the net proceeds of the income of the property described herein so long as the same shall be sufficient.

'It is further mutually agreed between the parties hereto that that agreement entered into on April 19, 1944, is hereby abrogated and superseded by the terms and provisions hereof.'

C. B. Carlile, one of the trustees above mentioned, died, and Hilda E. Carlile was appointed executrix of his estate. The case as presented in this court is a consolidation of two cases tried in the district court of Pueblo county. One of them originated in the county court on a claim filed by Norbert Zink against the estate of C. B. Carlile in which, as the sole heir-at-law of Carrie M. Zink deceased, he sought to recover all property held by said deceased as trustee for Mrs. Zink. This claim was denied by the county court. An appeal was taken to the district court where it was consolidated with the cause already pending in that court in which B. A. Carlile, the other trustee, was defendant. The last mentioned case was filed by Norbert Zink on October 13, 1948, against B. A. Carlile, individually and as trustee. The complainant sought an accounting or property, formerly belonging to Carrie M. Zink, which was in the hands of defendant as trustee. It was alleged that Norbert Zink was lawfully entitled to all the property, and the income therefrom, which formerly belonged to his deceased wife.

In his answer, B. A. Carlile set forth the contracts hereinbefore quoted, and placed in issue the right of Norbert Zink to share by inheritance in any property of his deceased wife.

On May 2, 1949, Norbert Zink died, and thereafter Grace Zink, as executrix of his estate, was substituted in his place as a party. She filed a reply to the answer of B. A. Carlile in which it was alleged that when Norbert Zink executed the contracts disclaiming his inheritance, a fiduciary relationship existed between the parties thereto; that Norbert Zink was beneficiary; and C. B. Carlile and B. A. Carlile were trustees. In said reply, facts were alleged questioning the fairness of the contracts, and raising the issue of undue influence in connection with the execution thereof. The consolidated case came on for trial in the district court on April 9, 1951; the court thereafter made findings of fact and...