Pallister v. Colle

The opinion of the court was delivered by Hoch, J.: This is primarily an appeal from an order admitting a will to probate. B. J. Pallister, the testator, was a resident of Rice county. In 1941 he was united in marriage to Ina T. Savage. On May 28, 1942, he executed the instrument in question. About two weeks later, on June 14, he died at the age of seventy-two, leaving as his heirs at law his widow, Ina T. Pallister, the appellee here, and five grown sons and daughters, the appellants. After the will was offered for probate the three sons and two daughters filed a petition in opposition. Subsequent proceedings need not be recited in detail, as their regularity is not questioned. R. E. Wyatt and Everett L. Baker were attesting witnesses. Wyatt testified as to the execution and attestation of the instrument, and several witnesses testified as to the genuineness of the signature of Baker, who was then in the military service. Opponents of the will offered no evidence. The probate court found that the will had been duly signed and attested, that the testator was of sound mind and under no undue influence when it was executed, and admitted it to probate. Ina T. Pallister was appointed — 9 — administratrix with will annexed. Appeal was taken to the district court, where the appellee moved that appellants be required to file pleadings “setting forth their contentions and all matters sought to be proved in their appeal.” An “amended and supplemental” petition in opposition to the will was thereupon filed by appellants. After full hearing the district court, on November 16, 1943, sustained appellee’s demurrer to appellants’ evidence, upheld the will, and made certain specific findings to which further reference will presently be made. Motion for new trial was made and overruled, after hearing, on January 6,1944. This appeal followed. Before considering the case upon its merits we take note of appellee’s contention that the district court was without jurisdiction to entertain the appeal from the probate court. While it does not appear that this question was raised in the court below, a question of jurisdiction of the subject matter of. an action may be raised at any time. (4 C. J. S. 126-128; Russell v. State Highway Comm., 146 Kan. 634, 73 P. 2d 29; Tucker v. Tucker, 97 Kan. 61, 62, 154 Pac. 269; Vrooman Co. v. Summer, 110 Kan. 662, 205 Pac. 609.) And if the district court was without jurisdiction, this court acquires none by the appeal. (Armour v. Howe, 62 Kan. 587, 592, 64 Pac. 42.) Appellee rests her contention that the district court was without jurisdiction upon our recent decision in In re Estate of Grindrod, 158 Kan. 345, 148 P. 2d 278. She argues that inasmuch as those opposing the will offered no evidence in the probate court, and that that court had no opportunity to hear and weigh their evidence in support of the objections they had filed, the appeal was tantamount to starting the action in the district court, and that that cannot be done since original jurisdiction to entertain such an action is exclusive in the probate court. It is unnecessary to go over again the ground covered in the Grindrod case. .Suffice it to say that in the Grindrod case no objections of any kind were made in the probate court to the validity of the will or to its probate and no steps were taken to vacate or set aside the order of probate. In other words, opponents of the will had begun no action, had in no way invoked the jurisdiction of the probate court. In the instant case a very different situation is presented. Opponents of the will did institute action in the probate court. They filed a “Petition in Opposition to Probate of Will” in which they alleged fraud, coercion, undue influence, and that Ina T. — 10 — Pallister, for the purpose of wrongfully and fraudulently depriving them of an interest in the property of their father “by use of undue influence and coercion forced-the said B. J. Pallister to execute said instrument in violation of a prior agreement and contract which had been entered into by the said B. J. Pallister and these petitioners and also with the said Ina T. Pallister.” The statute relating to the right of appeal to the district court from orders of the probate court (G. S. 1943 Supp. 59-2401) does not, in specific terms, impose any condition upon the right to appeal from “ (1) an order admitting, or refusing to admit, a will to probate.” In the Grindrod case we held, however, that in the light of other provisions of the probate code and of recent decisions construing its terms and intent, no appeal lies from an order admitting a will to probate where no objections have been filed or other steps of any sort taken in the probate court in opposition to the probating of the will. It was made clear that the Grindrod decision covered only the situation there presented. We find no sanction in the statute for expanding the doctrine of the Grindrod case and cutting off right of appeal where opponents of a will have filed their objections in the probate court, where they have filed a petition there in the manner contemplated by the code. (G. S. 1943 Supp. 59-2210.) If we were to hold that the right of appeal provided in 59-2401, G. S. 1943 Supp. is cut off because the opponents had not offered their evidence in probate court the question would at once arise as to how much evidence they must introduce in order to preserve the right of appeal. And that query would lead directly to the question of whether any new or additional evidence could be offered at the trial in district court. Obviously, if new and additional evidence is to be admitted in the district court, that would destroy .the very basis upon which we are asked to hold that evidence must be offered in probate court in order to establish a right to appeal. It would be a futile thing to condition the right of appeal upon the submission of some evidence — however slight — in probate court if, upon appeal, additional and wholly different evidence is to be admitted when the case is tried in the district court. But to say that no new or additional evidence could be introduced in the district court would clearly contravene the statute which provides for trial de novo upon appeal to the district court. Upon appeal the litigants are not limited to the record made in the probate court, but new pleadings may be filed — 11 — or amended and the case is heard in district court as though that court had original jurisdiction of the matter. G. S. 1943 Supp. 59-2408, which applies to appeals in all classes "of "cases,-provides: “Upon the filing of the transcript the district court, without unnecessary delay, shall proceed to hear and determine the appeal, and in doing so shall have and exercise the same general jurisdiction and power as though the controversy had been commenced by action or proceeding in such court and as though such court would have had original jurisdiction oj the matter. The district court may allow or require pleadings to be filed or amended . . (Italics supplied.) It follows that the district court had jurisdiction of the action. We proceed to the merits. The terms of the will are not in dispute. The testator gave to his wife the automobile, the household furniture and the home place in the city of Sterling. He held a three-fourths interest in this real estate, his five children owning the remaining one-fourth. He expressed the wish that the children convey their one-fourth interest to his wife, and bequeathed to his wife the sum of $2,000 in lieu thereof if they failed to do so. One-half of the residue of the estate, real and personal, was left to the wife, and the remaining one-half to the five children share and share alike. In the event the testator survived the wife the entire estate was to go to the children share and share alike. In the will the testator also recited the fact that he had theretofore sold certain described real estate to Minnie Pallister, wife of his son Glen Pallister, and placed the deed in escrow. He confirmed the sale and directed his executor to complete it according to its terms. The amended and supplemental petition filed in the district court was quite lengthy and need not be set out in full. Petitioners alleged that when the instrument was executed their father “was sick, mentally and physically, and was unable, mentally or physically, to resist the undue influence and coercion exercised by the said Ina T. Pallister upon him and executed said instrument as a result of the undue influence and coercion of the said Ina T. Pallister.” They also set out at length an oral agreement which they alleged had been entered into between them, their father, and Ina T. Savage prior to the marriage, under which she was to receive only a- one-sixth interest in his estate. In other words, she would renounce her’right to a one-half interest in case she survived her husband, arid would share equally with the children. It was upon this alleged contract which appellants contend was fully performed by them and was — 12 — valid as against the' will that they principally relied' in the court below and to which their argument is mainly directed ¡here; The issues here would not be clarified by extended recital of the evidence. No effort was made — prior :to hearing on a motion for a new trial — to establish the allegation That the testator was mentally incompetent when the will was executéd. ' ' It is true that on January 6, 1944, upon the hearing úpon appellants’ motion for a new trial, Everett L. JBaker, one of the attesting witnesses — home on furlough from his military service — testified at some length with reference to the circumstances connected with the drafting and execution of the will and it might be said that his testimony, if admitted, would throw some doubt upon the testator’s mental competency at the time. Appellee objected to the admission of such testimony upon the ground that any issue as to mental competency had been adjudicated in the trial and that the testator’s competency to make a will' had been admitted by appellants. Appellants contend that the court erred in excluding this testimony’: We find no error in’ the ruling and think it unnecessary to recite the proffered testimony of Baker. The issue had been settled in the trial and there, was ample, specific evidence to sustain the court’s finding that the testator was competent. Furthermore, the witness did not deny that the will whs signed in his presence and that he signed as an attesting witness. It cannot well be suggested that he would act in that capacity if he believed at’ that time that the testator was mentally incompetent. Material portions of the court’s findings were as follows: “The Court finds that the Last Will and Testament of B. J. Pallister, deceased, which was admitted to probate in the Probate Court of Rice County, Kansas, on July 16, 1912, and which Will was admitted in evidence herein, was made and executed by the said B. J. Pallister, when he was able and capable mentally to make and execute said will and that no evidence existed or was offered! in the trial of said action to show undue influence or fraud in the execution of said Will. That the contestants of the Will in open court admitted that B. J. Pallister was mentally capable of executing a valid will at the time of said execution thereof. (Italics supplied.) “The Court finds that .said Last Will and Testament of B. J. Pallister, was in all respects duly executed, made and proved as by law required and that said 'Estate of B. J. Pallister, should be administered and distributed in full accordance with said Last Will and Testament in the Probate Court of Rice County, Kansas. — 13 — “The Court finds that B. J. Pallister, before his marriage to Ina T. Pallister in September, 1941, entered into an oral agreement between himself and his children; that in consideration of his children accepting Ina T. Pallister, after his marriage to her, as a member of the family and treating her with respect and consideration as his wife and accepting her socially as a member of the family, that the estate of B. J. Pallister would be divided one-sixth (%) to Ina T. Pallister and one-sixth (%) to each of his children, . . . “The court finds that the plaintiffs ■. . . accepted the offer of their father, B. J. Pallister, as set forth in finding hereinbefore made. The court further finds that Ina T. Pallister was advised and informed prior to her marriage with B. J. Pallister of the terms and conditions of said oral contract between the said B. J. Pallister and his said children above named; that Ina T. Pallister, prior to her marriage with B. J. Pallister, orally consented and agreed to said contract between said B. J. Pallister and his children. “The court finds that after the marriage of B. J. Pallister and Ina T. Pallister, that Ina T. Pallister orally confirmed and consented to the terms of said contract and orally agreed to be bound by the terms thereof and orally consented and agreed with the said B. J. Pallister and his children that she would receive only a one-sixth (%) of the estate of the said B. J. Pallister and that each of said five children of the said B. J. Pallister would each receive a one-sixth (%) interest of said estate. “The court finds that the said oral contract between the said B. J. Pallister and his said children was fully performed during the life time of B. J. Pallister upon the part of his said children. The Court further finds that in compliance with their agreement, the said children of B. J. Pallister accepted the said Ina T. Pallister as their stepmother and as the wife of their father and accepted her socially and as a member of the family and gave her consideration and respect as the wife of their father. The court finds that during the life time of the said B. J. Pallister, after his marriage to the said Ina T. Pallister, that the family relationship existing between the said Ina T. Pallister and said children was cordial and friendly and in full compliance' with the oral agreement upon the part of said children.” The issue of undue influence does not require extended discussion. The trial court found that there was no evidence to show undue influence and sustained a demurrer. Appellants first contend that undue influence is patent on the face of the will itself. They base this contention upon a statement appearing in' the paragraph in which Ina T. Pallister gave her consent to the provisions of the will, the statement being that she “expressly consents that said B. J. Pallister may bequeath away from her more than one-half of his property.” They say this statement is meaningless since the will gave her more than one-half. In the first place, we are not prepared to say as a matter of law, not knowing all the facts, that the provision heretofore referred to, wherein the testator directed completion of a sale of certain real estate to his daughter-in-law, Minnie — 14 — Pallister, would have no bearing upon the question of whether the will actually gave the wife more than one-sixth of the estate. In any event we cannot agree that the statement, even if meaningless or inconsistent, constituted evidence of undue influence. Appellants also call attention to an observation by the trial court, before sustaining the demurrer, that “there isn’t any evidence of undue influence in this case except the letter which is plaintiff’s exhibit 2.” They say that this was an admission that there was some evidence and that the demurrer should therefore have been overruled. We think the context indicates that the court meant that the letter was all that had been offered along that line and that it did not regard it as evidence of undue influence. Immediately following was a finding that there was no evidence of undue influence. The letter, produced by a witness who said the testator gave it to him in a sealed envelope about a week before his death to be delivered to one of the children “if there is any trouble appears,” was as follows: “Dear Children “I am having a friend write this for me so you children will know that I did the best I could for you in my will. I am going to give this to Roy Considine to be given to you if anything should happen to me. I am sorry that I had to give Ina the furniture, car and the place in in town besides her one-sixth but she wouldn’t sign the agreement on the will unless I did. I am very sorry that this had to happen but I want you children to know that I kept my word to you as near as I could. “Your loving papa “B. J. Pallister” Appellants argue that undue influence is shown by the fact that the letter refers to one-sixth of the property whereas the will gave her one-half. However inaccurate or inconsistent with the will the statement may be said to be we cannot say that it shows undue influence. No ground has been shown for setting aside the finding of the lower court, trier of the facts. We come to appellants’ principal contention, — that the will was invalid because in contravention of an oral agreement made prior to the marriage. The trial court — as above noted — found that an oral agreement had been made but upheld the will, notwithstanding. Briefly stated, the oral agreement was that if the five sons and daughters would accept Ina Pallister socially as a member of the family and treat her with respect and consideration, and give her their love and affection, their father would divide his estate, by will, one-sixth to each of them and to Ina Pallister. — 15 — It may be observed that in the objections filed in the probate court no facts were set out to indicate the nature of the alleged oral contract, the statement simply being that the will was executed “in violation of a prior agreement and contract.” Had this been the only grounds alleged in opposition to probate, it might, perhaps, have been contended that no cause of action was stated, that there-' fore no action was begun in the probate court and that under the doctrine of the Grindrod case, supra, no appeal would lie to the district court. But we need not consider that question. The petition also contained allegations as to mental incompetency and undue influence clearly sufficient to state a cause of action. Having obtained jurisdiction, upon appeal, the district court was .empowered to hear the case de novo, and upon motion of appellee a supplementary and amended petition — specifically authorized by the statute — was filed in which appellants set out fully the nature of the alleged contract. Before proceeding to the main issue we take note of appellee’s suggestion that the proceeding in opposition to the will may be barred under the nonclaim statute, G. S. 1943 Supp. 59-2239, being in the nature of a claim against the estate and the amended petition having been filed more than nine months after the first published notice to creditors. As to that we need only say that the proceeding by appellants was clearly in the nature of a contest of a will. In a line of decisions — long antedating the present probate code — we have held that any action whose plain and essential purpose is to get rid of a will, to effect a result contrary to the obvious intent of the testator, is an action to contest the will and must be brought in conformity with the statutes dealing with that subject matter. (Yeager v. Yeager, 155 Kan. 734, 735, 129 P. 2d 242, and cases there cited.) It is conceded that if the instant action is of such nature it was filed in time. (G. S. 1943 Supp. 59-2404.) After hearing all the evidence the trial court sustained a demurrer. While the court’s reasons for doing so are not shown by the record it is clear that the court’s view was that the oral agreement was unenforceable as against a will, duly executed, without undue influence, by a testator competent to do so. Appellee says that the oral contract was unenforceable (a) under the statute of frauds (G. S. 1935, 33-106), being an attempt to bind appellee upon an “agreement made upon consideration of marriage” although not “in writing and signed by the party to be charged — 16 — therewith”; (b) under the statute of wills (G. S. 1943 Supp. 59-602) which provides that “Neither spouse shall will away from the other more than half of his property . ■•. . unless the other shall consent thereto in writing executed in the presence of two or more competent witnesses,” etc.; (c) because it was without consideration. Appellants contend (a) that the statute of frauds is not a bar because the contract was fully performed upon their part; (b) that the contract is valid as a “family settlement”; (c) that the respect, the love and affection, the cordial acceptance of the stepmother as a member of the family which they agreed to give or accord constituted valid consideration to support the contract. In the light of the evidence and the trial court’s findings we find considerable confusion in some of the arguments as to the real nature of the oral agreement. In the first place it was in no sense an agreement between appellee and B. J. Pallister made in consideration of marriage. It is not contended that in consideration of marriage appellee agreed with Pallister to relinquish her statutory right to one-half of her husband’s property in case she survived him. There is nothing to indicate that the marriage was in any way conditioned upon the agreement between Pallister and his children. The evidence clearly indicates to the contrary. The approaching marriage between Pallister and the appellee had been determined upon before the conversations took place upon which the appellants rely as showing the agreement with the children. In the second place, we cannot agree with the contention, strongly urged by appellants, that the agreement is to be regarded as a “family settlement” such as this and other courts have many times upheld. When the agreement was made appellants had no interest in their father’s property. He could do with it as he wished — then, or later by will or otherwise, subject only to the rights of his wife. There could be at that time no controversy over property rights. There could be no dispute for compromise settlement because no beneficial interests then existed. And appellee was not even a member of the family. The trial court found that prior to the marriage appellee “orally consented and agreed to said contract between said B. J. Pallister and his children.” Construing that finding in the light most favorable to appellants it means that appellee consented that Pallister might, by will, reduce her share to one-sixth if his children would accept her “socially as a member of the family” and treat her “with — 17 — respect and consideration as his wife.” We need not go into the question of whether, under any view of the matter, her consent that Pallister might execute such a will would have any binding effect upon her in case he decided to make a different sort of will. In any event what was the consideration moving to her to support her consent? Appellants say that it was the promise of the children to give her their respect and consideration, their love and affection as the wife of their father, and to accept her “socially as a member of the family.” She would be entitled to that regardless of any agreement. Aside from appellants’ contention — not upheld by the findings — that she unduly influenced him in the making of the will, there is nothing in the record to indicate that she was not entitled to their respect and consideration. And if she was not, then the appellants can hardly be heard to say that they would accord respect and accept her socially in the family in return for property concessions. Appellants cite many eases where love and affection are held sufficient consideration to support a conveyance. There is no need to review cases of that sort. The principle is well established, but it is not applicable here. In the first place such cases deal generally with grants or conveyances between husband and wife, parent and child, or where some other such relationship exists. There is no such conveyance here involved. And what is still more important, the whole theory upon which love and affection is regarded as sufficient consideration to support a conveyance is based upon a then existing sentiment on the part of the grantor. But that is not the nature of appellants’ contention here. They do not contend that appellee agreed to a reduction in her share of the estate because of love and affection which she bore to them. Nor do. they argue that they gave up some right which was theirs because of love and affection which they had towards her. Though doubtless not so intended appellants’ argument on this point comes down to a contention that respect, love and affection may be made the subject of bargain and sale. We know of no case where the giving or withholding of such attitude or sentiments are held to be legal consideration to support a contract. Indeed, the general rule is that even where love and affection exists it does not alone constitute sufficient consideration to support a promise. (12 Am. Jur. 569, 570; 17 C. J. S. 438.) — 18 — Appellants cite 13 C. J. 326, where it is said that: . . In some jurisdictions, however, love and affection growing out of the relationship of parent and child is a sufficient consideration to uphold either an executed or executory contract between them, and this rule has been extended to an adopted child, . . But in the instant case appellants are relying upon an agreement made with appellee between whom and themselves there was no such relationship as that existing in the cases covered even by the minority holding referred to. Moreover, the great weight of authority is — as stated in the paragraph from which appellants take the above quotation — that a promise founded on a “good” consideration such as that of blood, or of natural love and affection, is a gratuitous one and unenforceable. (See cases cited 13 C. J. 326, note 54.) In Aiken v. English, 131 Kan. 226, 289 Pac. 464, contestant sought to upset the will of his stepfather on the grounds that it breached an oral contract made when he was eight years old between his widowed mother, his prospective stepfather, and himself in which the testator promised that if his mother would marry him and if he— the contestant — would live with the testator as his son and give him his companionship and affection, the testator would leave half of his property to him and half to his mother. He alleged that he and his mother fully performed their obligations under the agreement and that the relationship of father and son continued between his stepfather and himself for ten years and until his stepfather, the testator, died. Citing Foster v. Foster, 129 Kan. 132, 281 Pac. 902, and cases from other jurisdictions, it was held that the oral contract “lacked a valid and sufficient consideration” and was unenforceable under the statute of frauds. We have examined the cases cited by appellants but find none of them controlling on the facts and issues here presented. It would unduly extend this opinion to discuss them. When the instant agreement was made between appellants and their father, with the consent of appellee, the marriage agreement had already been made. Their promise to treat their prospective stepmother with the respect and consideration to which she was entitled, even though fully performed, was not sufficient consideration to support an oral contract as against a will otherwise valid. Needless to say we are here dealing only with the legal effect of the oral agreement as against a will executed without undue influence and by a testator competent to know what he was doing. — 19 — Any question lying solely within the conscience of the litigants is beyond our adjudication. Having concluded that the oral agreement was without valid legal consideration it is unnecessary to consider other contentions made. The judgment is affirmed.