Central Kansas Medical Center v. Stratmann

806 P.2d 459, 248 Kan. 197, 1991 Kan. LEXIS 60

• Court: Supreme Court of Kansas
• Decided: February 20, 1991
• Docket: 63661
• Status: Published

Opinions

The opinion of the court was delivered by

Herd, J.:

This is a civil action against the estate of Bert Stratmann by several charities—Central Kansas Medical Center, First Presbyterian Church of Ellsworth, Sterling College, Ellsworth County Veterans Memorial Hospital, and Lutheran Society Good Samaritan Home. The claimants allege Bert Stratmann and his brother and sister made mutual and contractual wills, leaving all their property to the claimants. The claimants contend Bert breached the contract when he executed a new will giving all his property to Edith Stratmann, his wife. Following a jury trial, a verdict was returned in favor of the claimants.

The facts of this case reveal a long history of litigation within the Stratmann family. Tena Stratmann was the mother of seven children: Chris, Bert, Edwin, Otto, Marvin, Ervin, and Mathilda. Edwin predeceased his mother and the other children. Chris, Marvin, and Ervin each married and were thereafter treated as outsiders by the three single Stratmanns, Bert, Otto, and Mathilda. After Tena Stratmann’s death in 1960, numerous lawsuits and partition actions were filed among the children. Eventually, Bert, Otto, and Mathilda each held a one-third interest of Tena Stratmann’s considerable estate.

On April 23, 1970, Bert revoked all prior wills and executed a new will wherein he left all his property to Otto and Mathilda to share absolutely and forever, or to the survivor of them. In the event that Otto and Mathilda predeceased Bert, the will provided for disposition of the estate in the following manner:

St. Peter’s Lutheran Cemetery Assoc., Holyrood $1,000

Good Samaritan Center Bldg. Fund, Ellsworth 10%

Ellsworth County Veterans Memorial Hosp. 10%

First Presbyterian Church of Ellsworth Bldg. Fund 30%

Sterling College Endowment for Scholarship Fund 50%

On July 16, 1970, Otto executed a similar will. He left his entire estate to Bert and Mathilda to share absolutely and forever, or to the survivor of them. In the event that Bert and Mathilda predeceased Otto, the will provided for division as follows:

St. Peter’s Lutheran Cemetery Assoc., Holyrood $2,000

First Presbyterian Church of Ellsworth Bldg. Fund 25%

Central Kansas Medical Center, Great Bend 10%

Sterling College Memorial Endowment Scholarship

Fund, as follows: 45%

Memorial Scholarship Fund In Memory of

Bert J. Stratmann

Otto Stratmann

Mathilda Stratmann of Lorraine, Kansas

There is no record of a 1970 will executed by Mathilda. Testimony by Mathilda in the probate of Otto’s will, however, indicates she executed a reciprocal will on the same day as Otto. The drafting attorney also testified that Mathilda executed a will on July 16, 1970, and left her estate to Bert and Otto or, if neither survived, to the same charities in the same percentages as Otto’s will.

Otto Stratmann died August 9, 1973, and the 1970 will was probated. Bert and Mathilda received the bulk of Otto’s estate estimated at a value of $549,730.

Mathilda executed a will in 1974 and again in 1976. The June 24, 1976, will left all her property to Bert, and if he did not survive Mathilda the following disposition was ordered:

St. Peter’s Lutheran Cemetery Assoc., Holyrood $ 1,500

Ellsworth Memorial Cemetery $ 1,000

First Presbyterian Church of Ellsworth Bldg. Fund $20,000

Mathilda’s grave maintenance $ 1,000

Bert’s grave maintenance $ 1,000

Central Kansas Medical Center Bldg. Fund, Great Bend undivided Va interest in remainder

Sterling College Memorial Endowment Scholarship Fund, as follows: undivided Va interest in remainder

Mathilda Stratmann

Bert also executed a new will on June 24, 1976. Bert left his entire estate to Mathilda and directed the following disposition if Mathilda failed to survive him:

Central Kansas Medical Center Bldg. Fund, Great Bend undivided Va interest in remainder

Sterling College Memorial Endowment Scholarship Fund, as follows: undivided Va interest in remainder

Mathilda Stratmann died October 28, 1981, and her 1976 will was probated. Bert received the entire estate valued at $1,360,717.

Edith Oeser became acquainted with the Stratmanns while she worked at the Central Kansas Medical Center where Mathilda was frequently a patient. In 1979, Edith began to occasionally care for Mathilda in the Stratmann home. In November 1981, Bert and Edith began to date. The relationship flourished and culminated in marriage on April 3, 1982, at which time Bert was 81 and Edith was 64.

On November 10, 1983, Bert executed his final will. Under the new will Bert left most of his estate to Edith and her children. Certain property was left in trust with the income to be paid to Edith and her children in designated percentages. After the trust had been in effect for twenty years, the will authorized disposition of the principal and income in the following manner:

Sterling College Memorial Endowment Scholarship Fund $ 5,000

or, if Edith is deceased $50,000

In Memory of

Bert J. Stratmann and Edith Stratmann

First Presbyterian Church of Ellsworth Bldg. Fund $ 5,000

or if Edith is deceased $50,000

Edith Stratmann undivided Vz interest in remainder

Edith’s children individually undivided Ve interest in remainder

Bert Stratmann died July 1, 1986, survived by his wife Edith. A petition to admit the 1983 will was filed, but the claimants prevented probate by filing a dissent to the petition wherein claimants alleged breach of the contractual wills. Following a jury trial to determine if claimants were entitled to recover against Bert’s estate, the jury found contractual wills existed among Otto, Mathilda, and Bert in 1970, and between Mathilda and Bert in 1976. Edith filed motions for a judgment notwithstanding the verdict, or, in the alternative, a new trial. The motions were denied and Edith appeals.

Preliminary to considering the issues of error raised, let us review the standard of proof required in cases such as this. The burden of proof is placed upon the claimants to establish an agreement existed for mutual and contractual wills among the testators. The trial court instructed the jury that claimants must prove the existence of a contract by clear and convincing evidence. On appeal, in an unpublished opinion filed June 1, 1990, the Court of Appeals ruled that where the claimant of an alleged contract with a decedent is merely a third-party beneficiary of an alleged mutual contract among several decedents, the claimant need only prove the mutual contract by a preponderance of the evidence. We disagree with the Court of Appeals.

It is well established that in an action against an estate to enforce an oral contract with a person since deceased the existence of the contract must be established by clear and convincing evidence. Lostutter v. Estate of Larkin, 235 Kan. 154, 163, 679 P.2d 181 (1984); In re Estate of Mueseler, 188 Kan. 407, 409, 362 P.2d 653 (1961); Jones v. Davis, 165 Kan. 626, 632, 197 P.2d 932 (1948); Bond v. Bond, 154 Kan. 358, 360, 118 P.2d 549 (1941). In these actions the ordinary civil standard of proof of a preponderance of the evidence is insufficient because of the inherent danger of fraud in claims against the estate of a decedent. Jones v. Estate of Cooper, 216 Kan. 764, 766, 533 P.2d 1273 (1975); In re Estate of Shirk, 194 Kan. 424, 429, 399 P.2d 850, modified and reh. denied 194 Kan. 671, 401 P.2d 279 (1965); Woltz v. First Trust Co., 135 Kan. 253, 259, 9 P.2d 665 (1932).

In Braden v. Neal, 132 Kan. 387, 295 Pac. 678 (1931), the beneficiary under a contractual will between a husband and wife brought an action to enforce the agreed upon will. The court held that where a definite contract was clearly and certainly established, equity would grant relief to the third-party beneficiary. 132 Kan. at 391. See Eikmeier v. Eikmeier, 174 Kan. 71, 254 P.2d 236 (1953).

We find no reason or authority to support the position that the less burdensome standard of proof of a preponderance of the evidence should apply in circumstances where the claimant is a third-party beneficiary of an alleged contract between deceased parties. The temptation to set up fraudulent claims against the estate of a deceased person is not less when the claimant is a third-party beneficiary to the alleged agreement than when the claimant is a direct party to the contract. In fact, it appears logical that the temptation for fraud is greater for a third-party beneficiary. Therefore, we hold the Court of Appeals erred in finding claimants needed to establish evidence of an agreement among Otto, Mathilda, and Bert by a mere preponderance of the evidence. In an action to enforce a contractual will against the estate of a decedent, the claimants must produce evidence of a clear and convincing nature to establish the existence of the alleged contract.

Now, let us turn to the first substantive issue of error raised on appeal. Edith Stratmann argues the jury verdict that the wills of 1970 and 1976 are contractual is not supported by clear and convincing evidence. In situations such as this, where the trial court found a contract existed, on appeal we review the record to determine if there is substantial evidence to support the finding and, in addition, consider the evidence to determine if it is clear and convincing. In re Estate of Shirk, 194 Kan. at 427. In order to establish a contract existed by clear and convincing evidence, the witnesses must be credible and the facts to which they testify must be distinctly remembered and narrated exactly and in due order; the testimony must be clear, direct, and weighty. 194 Kan. at 430.

Edith contends there is no evidence of a contract among the testators. She correctly points out the wills are not expressly contractual and alleges there is no direct testimony of a contract among the siblings. Finally, Edith asserts the only evidence of a contract is general statements of an intent to leave property to the church or college, and such evidence is insufficient to establish the existence of a contract.

Mutual wills made in pursuance of a contract and in consideration of reciprocal provisions do not violate public policy and have long been held valid in Kansas. Carle v. Miles, 89 Kan. 540, 543, 132 Pac. 146 (1913). Mutual wills made pursuant to an agreement not to revoke are contractual as well as testamentary in nature and impose an irrevocable obligation on the surviving testator upon the death of the other testator. In re Estate of Wade, 202 Kan. 380, 385-86, 449 P.2d 488 (1969). Nevertheless, the contractual will may be revoked and probate prevented. Menke v. Duwe, 117 Kan. 207, 216, 230 Pac. 1065 (1924). The revocation breaches the contract, however, so that any beneficiary under the revoked will is entitled to make a claim against the estate of the testator. 117 Kan. at 216.

The existence or nonexistence of a contract is a question of fact. Reznik v. McKee, Trustee, 216 Kan. 659, 671-72, 534 P.2d 243 (1975). Claimants must establish by direct or circumstantial evidence that mutual and contractual wills were made in consideration of one another. The contract must be established by full and satisfactory proof which cannot be supplied by a presumption arising from the fact the wills were mutual. 216 Kan. at 672; In re Estate of Wade, 202 Kan. 380, 387, 449 P.2d 488 (1969). Therefore, the fact that the wills contain no reference to a contract is not conclusive, nor can a contract be presumed because two persons simultaneously make reciprocal testamentary dispositions. See In re Estate of Chronister, 203 Kan. 366, 372, 454 P.2d 438 (1969); In re Estate of Miller, 186 Kan. 87, 96, 348 P.2d 1033 (1960). The terms of the will itself, however, may be circumstantial evidence of a contract and may show by implication, along with other known circumstances such as family relations, that execution of the will was the product of a pre-existing agreement. Finally, the contract must be definite, certain, and unequivocal as to parties, subject matter, and consideration. Reznik, 216 Kan. at 674, 678.

As we have already noted, neither the 1970 wills nor the 1976 wills are contractual on their face. Therefore, we must look to circumstantial evidence to determine whether a contract existed among the testators. In 1970, Otto and Bert each executed reciprocal wills wherein the survivors of the three unmarried Stratmann children received the entire estate. In the event Otto and Mathilda predeceased Bert or Bert and Mathilda predeceased Otto, certain named charities received the property in designated percentages. Otto’s will, however, included two charities not listed in Bert’s will, and provided for different percentages of disposition. Thus, although the wills are similar they are not identical.

The 1976 wills of Bert and Mathilda are mutual, reciprocal, and identical in all substantive aspects. The testator left his or her entire estate to the other and bequeathed the residue to the same charities under the will of the survivor.

The reciprocal and similar provisions of these wills is indicative of an overall pattern of disposition of the family estate. See Reznik, 216 Kan. at 674; Chronister, 203 Kan. at 373. In addition, the 1976 wills made by Bert and Mathilda expressed their specific intent to omit other heirs. However, the 1970 wills of Otto, Bert, and Mathilda fall in a much weaker position since those wills are not mutual and Mathilda’s 1970 will was not produced at trial. We have only oral testimony concerning its contents.

Oral testimony at trial can provide circumstantial evidence of contractual wills. Testimony of Bert and Mathilda which had been given during the probate of Otto’s will was read into evidence at this trial. Mathilda had testified she and Otto executed the 1970 wills on the same date and that neither of them asked the other to make a will, but that for some time they had discussed leaving their property to the other. There was no direct evidence of a contract. Bert, however, testified he did not know that Otto and Mathilda were planning to make new wills in 1970, and did not gain such knowledge until after the wills were executed. Bert indicated he decided on his own to make a similar will with a few changes.

Reverend William McCreery testified he met with Otto, Mathilda, and Bert in the spring of 1970 in an effort to cultivate interest in Sterling College. After meeting with the Stratmanns, McCreery felt they were going to do something for the college but did not receive a definite commitment on the amount of their contribution. Although the Stratmanns did not state they had a contractual agreement, McCreery held the opinion they were in agreement on helping the college and at one point Bert told him the college was taken care of in the “Stratmann Estate.”

Sister Miriam Schremmer testified that she visited with Bert while Mathilda was a patient at the Central Kansas Medical Center. Bert told Sister Schremmer they were going to do something nice for the hospital because its staff was nice to Mathilda.

Reverend Don Ray, pastor for the First Presbyterian Church of Ellsworth, testified that Otto, Mathilda, and Bert acted as a team. Reverend Ray made regular calls on the Stratmanns and from conversations with them believed they intended to do something for Sterling College; however, no specific amounts or percentages were ever given. On one specific occasion, in response to a request for a $70,000 gift for an organ for Sterling College, Bert told Reverend Ray, “No, you will get our money when we die.”

Edith contends the testimony presented general statements of an intent to give property to the church or college, which are not sufficient to establish the existence of a contract. In Jones v. Estate of Cooper, 216 Kan. 764, 767-68, 533 P.2d 1273 (1975), we held that definite evidence of an alleged contract with a decedent must be produced and the claimant could not rely merely upon witnesses’ testimony of the decedent’s intent to devise property as a reward for claimant’s services. 216 Kan. at 767-68.

John O’Donnell, an attorney who represented the Stratmanns for many years, testified that Otto, Bert, and Mathilda owned and dealt with most of their property separately and distinctly. O’Donnell stated that Otto and Mathilda were not present when Bert executed his 1970 will, nor did Bert indicate to him the existence of a contract. Otto also made no mention to O’Donnell about any contractual arrangement when he executed his 1970 will.

Thus, we are presented from the foregoing facts with the question of whether there is clear and convincing evidence the Stratmanns contracted among themselves, each to the other, to will their property as the three of them did in 1970 or as Bert and Mathilda did in 1976.

Let us first examine the 1970 wills. The wills were not mutual and reciprocal in all respects between Otto and Bert, and from Bert’s preserved testimony from the probate hearing in Otto’s probate we know that Bert and Otto had no contract. There is no evidence to support a conclusion that there was a contract. John O’Donnell, the attorney who drafted the wills, testified there was no contractual arrangement among the Stratmanns. He said had there been one he would have so stated in their wills. Claimants’ failure to produce direct testimony of a contract and O’Donnell’s testimony are persuasive. We hold there was no contract among the Stratmanns in the 1970 wills. Had a contract existed, it would have rendered any subsequent wills ineffective.

Now we turn to the 1976 wills of Bert and Mathilda. These two wills are clearly mutual and reciprocal and show that the two testators saw the proper disposition of their estates the same way at that time. The question presented is: Does that mutuality constitute a contract which precludes each of them from changing their will thereafter, absent agreement by the other?

We stated in In re Estate of Pennington, 158 Kan. 495, Syl. ¶ 1, 148 P.2d 516 (1944):

“The separate wills of two persons which are reciprocal in their provisions giving the property of each to the other are not inherently contractual, where the wills do not so declare, and where there is no evidence of an agreement by the testators to that effect.”

We amplified the Pennington holding in In re Estate of Miller, 186 Kan. 87, 95, 348 P.2d 1033 (1960), stating:

“To establish an agreement for mutual wills there must be full and satisfactory proof of the agreement, which cannot be supplied by presumption. Merely to argue that wills are contractual because they are mutual begs the question. The contractual character of a will is a fact to be established by evidence, showing that such was the understanding and the deliberate agreement.

“It is essential to the validity and enforcement of a contract for the execution of wills containing bequests which are reciprocal between the parties that the contract be definite, certain and unequivocal as to the parties, the subject matter and the considerations.”

As we previously stated, neither of the 1976 wills contain a reference to a contract, nor do we have any information from the testators which asserts a contract. Thus, we must search the extrinsic evidence for guidance. To prevail, the claimants must produce evidence that Bert and Mathilda each intended their 1976 mutual wills to be binding on both of them and that they understood the consequences of such agreement and that they so agreed deliberately. We have no direct evidence on any of these points. Rather, the will draftsman, Attorney Ed Moses, testified to the contrary. He says nothing about a contract was mentioned to him by either testator. Thus, we must examine the testimony of the claimants. Does it provide any contract information which is definite, certain, and unequivocal as to parties, subject matter, and consideration and which is clear, direct, and weighty? Our thorough search of the record reveals no evidence of a contract, let alone evidence which meets the requirements of the contract being definite, certain, unequivocal, clear, direct, and weighty.

The claimants have the burden of proving the wills were contractual by clear and convincing evidence. They failed to produce witnesses who distinctly remembered and narrated exactly and in due order, and whose tsetimony was clear, direct, and weighty that a contract existed between Bert and Mathilda Stratmann. Thus, the claimants failed to sustain the burden of proof. There was insufficient evidence of a contract to submit that issue to the jury.

Bert Stratmann’s 1983 will is not subject to the contractual claim of appellees. The other issues raised need not be discussed.

The judgments of the trial court and the Court of Appeals are reversed and judgment is entered for appellant.

Abbott J., not participating.