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December 8, 1973.


The opinion of the court was delivered by

This bitter battle is waged between siblings, the children of Christ Wehking. Mr. Wehking was a dirt farmer and long time resident of Atchison County. He died March 17, 1966,

[213 Kan. 552]

      leaving a second wife, two sons and three daughters. He also left the basic ingredient of this lawsuit in the form of a $10,000 joint tenancy savings account in an Atchison bank.

It happened this way: On March 23, 1954, Mr. Wehking opened a $6000 joint saving account in the Exchange National Bank of Atchison. He placed the account in the names of Gilbert Wehking and his wife Elsie, with rights of survivorship. Gilbert testified that his father came to his home in the evening and threw the savings account book on the table; that he and his wife looked at it and saw the amount made out to them; that there was no conversation about the $6000; and that his father did not indicate anything that he was to do with it. Neither Gilbert nor Elsie ever put any money into the account nor did they ever draw any out, until after Christ's death. The account grew, however, with the accumulation of interest.

  On February 2, 1959, Gilbert grew tired of paying income taxes on the interest accruing to the account and on February 2, 1959, he added Christ's name to the account which then contained over $8000. The new account was placed in the names of Christ Wehking, or Gilbert Wehking or Elsie Wehking. Thus the account remained until some two months prior to Christ's death. On January 18, 1966, Gilbert "took [his] father's name off the account" and opened a new account in Elsie's and his own name. Before doing so, however, he discussed with his brother, Walter, how Christ's second wife, Anna, could be prevented from getting any part of it. By this time the account had increased to something over $10,000.

  Sometime in June, 1966, Gilbert closed the joint tenancy savings account and transferred the proceeds first to a checking account in a Lancaster bank and later to a bank at Everest. The transfer of the funds caused considerable fur to fly and Walter soon filed an action to compel Gilbert to account for the moneys allegedly belonging to Christ's children. A second action was filed by brother Walter and sisters Hulda Kanning and Mary Gunter in March of 1968, alleging that Gilbert held the money in trust for all five Wehking children and praying judgment for their respective one-fifth shares therein. Helen Gigstad, the third sister, was joined as a party defendant along with Gilbert and Elsie. Thus it was that three of the Wehking children were arrayed on one side of

[213 Kan. 553]

      the controversy against the other two. The two lawsuits were tried together and are consolidated on this appeal.

  After making extensive findings of fact the trial court concluded that Christ Wehking did not intend to make an inter vivos gift to Gilbert or Elsie but that he intended to and did create an oral trust for the equal benefit of his five children through his establishment of the joint tenancy savings account. Having so concluded, the court ordered Gilbert and Elsie to deliver to each of Gilbert's siblings, Walter, Hulda, Mary and Helen, a one-fifth part of the moneys which were in the saving account plus accumulated interest. Gilbert and Elsie took an appeal from that judgment. Elsie has died during the pendency of the appeal leaving Gilbert as the only appellant.

  As we see it, the essential thrust of Gilbert's argument on appeal is simply that the evidence is not sufficient to establish the creation of an oral trust and that the findings and conclusions of the trial court are not supported by the evidence.

  We do not intend to engage in an extended discussion of oral trusts, but pause for the moment to say that the validity of a trust in personalty established by parol has long been recognized in this state. (Diller v. Kilgore, 135 Kan. 200, 9 P.2d 643; Shumway v. Shumway, 141 Kan. 835, 44 P.2d 247.) More recently we have held that personal property titled in joint tenancy may be the subject of a trust, as well as property which is otherwise held; that while legal title to a joint tenancy bank account or other similar property may vest in the survivor, the equitable or beneficial interest may be in another, in which event equity may impress a trust upon the fund or the account to prevent injustice. (Winsor v. Powell, 209 Kan. 292, 497 P.2d 292; Grubb, Administrator v. Grubb, 208 Kan. 484, 493 P.2d 189.)

  There is considerable evidence throughout this record that Mr. Wehking wished all five of his children to share in his worldly goods. At the time he gave up active farming operations and moved to Huron with his second wife, he divided his farm holdings with his children, although not on an entirely equal basis, for the two sons appear to have received the larger part of his real estate. After having established the joint tenancy savings account in the names of Gilbert and Elsie, Mr. Wehking reportedly made statements to Hulda and to Walter to the effect that he was saving for

[213 Kan. 554]

      the kids; that he had a savings for them; that he was going to surprise them; that there was money for the kids; that the savings account was to be used for the children, but only he and Gilbert would know ...

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