The opinion of the court was delivered by
Thiele, J.:
This was an action by an administrator to recover possession of certain personal property alleged to belong to the decedent’s estate.
L. D. Wright was a single man and at the date of his death in 1938 his next of kin were his sister, Sadie M. Stanfield, and his half sister, Cora A. Childs. The defendant, Percy F. Stanfield, [334]*334was the son of Sadie Stanfield. Shortly after his discharge from the army in 1919, he made his home with his uncle, L. D. Wright, who owned a large farm located in Woodson and Wilson counties. The relations between the two men were harmonious. Although it is not clearly shown in the record, about July 29,1936, L. D. Wright conveyed all of his real estate to Percy F. Stanfield. On that date he executed and delivered to Percy F. Stanfield the following document:
“For value received, and love and affection, I hereby sell, transfer and set over to Percy F. Stanfield all my livestock, consisting of horses, cattle, mules, hogs, to have and to own forever and all farm machinery, utensils, all household goods, chickens and everything now used upon my farm upon the express condition, however, that when any of the personal property is sold that the money shall be deposited in The First National Bank of Toronto, Kansas, and the same may be reinvested in stock to be placed on the farm, but all not reinvested in stock shall remain in said bank for the use and benefit of the undersigned and shall be used if necessary for his care and support during his life, and any sum remaining after his death shall he the property of the said Percy F. Stanfield.
“It- is further ordered that any sum of money that I may have on deposit in The First National Bank of Toronto, Kansas, shall be used to pay the expense of my last sickness and funeral expense, and said Percy F. Stanfield is authox-ized to draw the same for said purpose.
“Witness my hand this 29th day of July, 1936. L. D. Weight.
“Witnesses:
“C. N. Cannon.
“Mary Cannon.”
L. D. Wright died intestate on May 12, 1938, and on that date the balance, in the account in the First National Bank of Toronto was $2,341.21. On July 24, 1936, his balance had been $1,273.91. On June 2, 1938, the sisters, Sadie M. Stanfield and Cora A. Childs, executed and delivered to Percy F. Stanfield the following document:
“To the First National Bank of Toronto, Kansas:—
“We, the undersigned, being the only heirs of L. D. Wright, deceased, do hereby authorize you to pay to Percy F. Stanfield all moneys deposited in said bank in the name of L. D. Wright in accordance with the request of the said L. D. Wright made on the 29th day of July, 1936, when he executed an instrument turning said money over to said Percy F. Stanfield.
“Dated this 2d day of June, 1938. Sadie M. Stanfield,
“Coea A. Childs.”
And on the same date the balance in the account was delivered to Percy F. Stanfield. On September 19, 1938, Thos. D. Hampson was appointed administrator of the estate of L. D. Wright and [335]*335duly qualified. He returned into probate court an inventory listing all of the livestock and personal property on the farm, appraised at $5,403, and the balance in the bank of $2,341.21, and thereafter made demand on Percy F. Stanfield for delivery and possession, which was refused, and he then instituted the present action.
Briefly stated, the petition alleged appointment of the administrator and that at the time of his death L. D. Wright was the owner of the property sought to be recovered. In his' answer the defendant made many admissions now not necessary to state, and alleged that he was the owner of the personal property by virtue of the contract of July 29, 1936, above quoted.
At the trial, there was a showing as to the length of time Percy F. Stansfield had lived with his uncle; that he had $500 in cash when he came there and used part of it to buy an automobile which was used in connection with the farm operations, the remainder being used about the place; that he had received a bonus of $1,575 on account of his military service, part of which was used to buy cattle and part of which was used to pay expenses; that he worked on the farm steadily, receiving no wages but only spending money; that until 1928 or 1929 a maiden aunt had lived there, but after her death he did the housework along with his other work. Some of the circumstances surrounding the execution of the contract were shown, and that after its execution and'delivery Percy F. Stanfield went into possession of all the personal property and handled it, making deposit of such moneys as were received in the account of L. D. Wright in the First National Bank of Toronto. There was also some evidence that after the contract was made, L. D. Wright stated to third persons that all of the property belonged to Percy F. Stanfield, as well as some evidence from which it might be inferred L. D. Wright was still exercising rights of ownership. The rights of the parties, however, are to be determined largely from an interpretation of the contract, and we shall not discuss the details of the evidence further. The trial court, after hearing the evidence and considering it and the contract and order above quoted, determined the issues in favor of the defendant, and the plaintiff appeals.
Six specifications of error pertain to alleged errors in ruling on admission of evidence. Three of these pertain to permitting the president of the First National Bank in Toronto to testify with respect to the fact that subsequent to the death of L. D. Wright on May 12, 1938, Percy F. Stanfield presented to the bank the order [336]*336of June 2,1938, signed by his mother and aunt, and that the balance on hand was delivered to Percy F. Standfield. Objection is also made that the order itself was admitted. We have examined the record and are of the opinion the evidence adduced was within the issues and was properly received in evidence. Complaint is also made that the appraisers of the claimed assets of the estate of L. D. Wright were permitted to testify that when the administrator took them out to the farm to perform their duties the administrator asked Percy F. Stanfield to show them the property, and he claimed it belonged to him. It is said the evidence was self-serving and inadmissible. It has been held,' however, that declarations of persons in possession of real or personal property which illustrate the character of their possession and explain their claims of ownership are admissible in evidence. (See Hubbard v. Cheney, 76 Kan. 222, 226, 91 Pac. 793.) Under that rule, the evidence was admissible. The other complaint is that a witness was permitted to state that L. D. Wright sold some cattle to Percy F. Stanfield, the objection being it was not within the pleadings. Perhaps so, but that it affected the result in any particular is not even claimed. The error, if any, will not be considered.
Another specification is that the trial court erred in denying plaintiff’s motion for judgment on the pleadings. There was no error in that particular unless the trial court erred in its final conclusion and in denying plaintiff’s motion for a new trial, both of which rulings are specified as erroneous.
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The opinion of the court was delivered by
Thiele, J.:
This was an action by an administrator to recover possession of certain personal property alleged to belong to the decedent’s estate.
L. D. Wright was a single man and at the date of his death in 1938 his next of kin were his sister, Sadie M. Stanfield, and his half sister, Cora A. Childs. The defendant, Percy F. Stanfield, [334]*334was the son of Sadie Stanfield. Shortly after his discharge from the army in 1919, he made his home with his uncle, L. D. Wright, who owned a large farm located in Woodson and Wilson counties. The relations between the two men were harmonious. Although it is not clearly shown in the record, about July 29,1936, L. D. Wright conveyed all of his real estate to Percy F. Stanfield. On that date he executed and delivered to Percy F. Stanfield the following document:
“For value received, and love and affection, I hereby sell, transfer and set over to Percy F. Stanfield all my livestock, consisting of horses, cattle, mules, hogs, to have and to own forever and all farm machinery, utensils, all household goods, chickens and everything now used upon my farm upon the express condition, however, that when any of the personal property is sold that the money shall be deposited in The First National Bank of Toronto, Kansas, and the same may be reinvested in stock to be placed on the farm, but all not reinvested in stock shall remain in said bank for the use and benefit of the undersigned and shall be used if necessary for his care and support during his life, and any sum remaining after his death shall he the property of the said Percy F. Stanfield.
“It- is further ordered that any sum of money that I may have on deposit in The First National Bank of Toronto, Kansas, shall be used to pay the expense of my last sickness and funeral expense, and said Percy F. Stanfield is authox-ized to draw the same for said purpose.
“Witness my hand this 29th day of July, 1936. L. D. Weight.
“Witnesses:
“C. N. Cannon.
“Mary Cannon.”
L. D. Wright died intestate on May 12, 1938, and on that date the balance, in the account in the First National Bank of Toronto was $2,341.21. On July 24, 1936, his balance had been $1,273.91. On June 2, 1938, the sisters, Sadie M. Stanfield and Cora A. Childs, executed and delivered to Percy F. Stanfield the following document:
“To the First National Bank of Toronto, Kansas:—
“We, the undersigned, being the only heirs of L. D. Wright, deceased, do hereby authorize you to pay to Percy F. Stanfield all moneys deposited in said bank in the name of L. D. Wright in accordance with the request of the said L. D. Wright made on the 29th day of July, 1936, when he executed an instrument turning said money over to said Percy F. Stanfield.
“Dated this 2d day of June, 1938. Sadie M. Stanfield,
“Coea A. Childs.”
And on the same date the balance in the account was delivered to Percy F. Stanfield. On September 19, 1938, Thos. D. Hampson was appointed administrator of the estate of L. D. Wright and [335]*335duly qualified. He returned into probate court an inventory listing all of the livestock and personal property on the farm, appraised at $5,403, and the balance in the bank of $2,341.21, and thereafter made demand on Percy F. Stanfield for delivery and possession, which was refused, and he then instituted the present action.
Briefly stated, the petition alleged appointment of the administrator and that at the time of his death L. D. Wright was the owner of the property sought to be recovered. In his' answer the defendant made many admissions now not necessary to state, and alleged that he was the owner of the personal property by virtue of the contract of July 29, 1936, above quoted.
At the trial, there was a showing as to the length of time Percy F. Stansfield had lived with his uncle; that he had $500 in cash when he came there and used part of it to buy an automobile which was used in connection with the farm operations, the remainder being used about the place; that he had received a bonus of $1,575 on account of his military service, part of which was used to buy cattle and part of which was used to pay expenses; that he worked on the farm steadily, receiving no wages but only spending money; that until 1928 or 1929 a maiden aunt had lived there, but after her death he did the housework along with his other work. Some of the circumstances surrounding the execution of the contract were shown, and that after its execution and'delivery Percy F. Stanfield went into possession of all the personal property and handled it, making deposit of such moneys as were received in the account of L. D. Wright in the First National Bank of Toronto. There was also some evidence that after the contract was made, L. D. Wright stated to third persons that all of the property belonged to Percy F. Stanfield, as well as some evidence from which it might be inferred L. D. Wright was still exercising rights of ownership. The rights of the parties, however, are to be determined largely from an interpretation of the contract, and we shall not discuss the details of the evidence further. The trial court, after hearing the evidence and considering it and the contract and order above quoted, determined the issues in favor of the defendant, and the plaintiff appeals.
Six specifications of error pertain to alleged errors in ruling on admission of evidence. Three of these pertain to permitting the president of the First National Bank in Toronto to testify with respect to the fact that subsequent to the death of L. D. Wright on May 12, 1938, Percy F. Stanfield presented to the bank the order [336]*336of June 2,1938, signed by his mother and aunt, and that the balance on hand was delivered to Percy F. Standfield. Objection is also made that the order itself was admitted. We have examined the record and are of the opinion the evidence adduced was within the issues and was properly received in evidence. Complaint is also made that the appraisers of the claimed assets of the estate of L. D. Wright were permitted to testify that when the administrator took them out to the farm to perform their duties the administrator asked Percy F. Stanfield to show them the property, and he claimed it belonged to him. It is said the evidence was self-serving and inadmissible. It has been held,' however, that declarations of persons in possession of real or personal property which illustrate the character of their possession and explain their claims of ownership are admissible in evidence. (See Hubbard v. Cheney, 76 Kan. 222, 226, 91 Pac. 793.) Under that rule, the evidence was admissible. The other complaint is that a witness was permitted to state that L. D. Wright sold some cattle to Percy F. Stanfield, the objection being it was not within the pleadings. Perhaps so, but that it affected the result in any particular is not even claimed. The error, if any, will not be considered.
Another specification is that the trial court erred in denying plaintiff’s motion for judgment on the pleadings. There was no error in that particular unless the trial court erred in its final conclusion and in denying plaintiff’s motion for a new trial, both of which rulings are specified as erroneous.
We turn our attention to the contract of July 29, 1936. Our attention is directed to various authorities pertaining to the law of gifts, but we shall not discuss them, for it is clear there was no gift. The contract is in two divisions. The first is in the nature of a bill of sale, and is executed for value, and that portion prior to the phrase “upon the express condition” provides for an immediate transfer of possession. Not only does the language so provide, but the evidence shows delivery of the instrument by the maker to Percy F. Stanfield. Under Fontron Loan & Trust Co. v. Korzuskiewicz, 125 Kan. 725, 266 Pac. 649, it would appear that possession would pass on delivery of the instrument even though there was no actual delivery of the property described. More than that, the evidence shows Percy F. Stanfield went into actual possession. Under the test laid down in Imthurn v. Martin, 150 Kan. 906, 96 P. 2d 860, the instrument was a bill of sale of the personal property described. [337]*337The sale was on condition that the proceeds be reinvested in livestock to be placed on the farm, or if not so reinvested, to be deposited in the named bank and used, if necessary, for the support of the maker. The maker reserved no power of revocation of any character, nor of the power to make the reinvestment, nor otherwise save that any moneys in the bank should be used for his support, if necessary. It might be said he had created an irrevocable trust for his own benefit.
Taking up the second paragraph of the contract, it will be noted that a grammatical construction of it would lead to a conclusion the maker was referring to the amount of his deposit in the bank on July 29, 1936, and not to moneys thereafter deposited, and such a construction is entirely consistent, for in the first paragraph he does not pretend to transfer to Percy F. Stanfield any moneys except those thereafter deposited. But whether we adhere to such a construction or construe the paragraph to refer to deposits thereafter made is not important now, for after the death of L. D. Wright his two sisters, who were his only heirs, directed the bank to pay the balance on hand to Percy F. Stanfield and that was done; he paid the expenses of the last sickness and funeral of L. D. Wright, and the wish expressed was fully performed. Even if it be held the second paragraph was testamentary and being properly executed could have been admitted as a will, that was not done. Even so, it was still good as a contract, and if not inequitable could be enforced. (See Imthurn v. Martin, supra, and cases cited.) At the time the application for appointment of an administrator was filed, the entire contract had been performed. It would seem that under Harrod v. McComas, 78 Kan. 407, 96 Pac. 484, the administrator had no cause of action. And finally, it appears that at the time of his death, the only property that could be said to belong to L. D. Wright was the balance in the bank, and his only heirs at law were his sisters. They directed the bank to pay the money to Percy F. Stanfield, and it did so, and he thereupon paid the expenses of the last illness and of the funeral. There were no other debts. No creditor could complain and the only persons who could inherit authorized the payment of the only assets to Percy F. Stanfield. The evidence discloses there was no occasion for the appointment of an administrator, and under Richards v. Tiernan, 150 Kan. 116, 91 P. 2d 22, he may not maintain the present action.
[338]*338We conclude the judgment of the trial court was correct and it is affirmed.