dissenting: I cannot agree with the court’s decision to reverse the judgment. In my opinion, the court has simply reweighed the evidence and has undertaken the responsibility to determine the credibility of the witnesses. This was evidence which the trial court was in a better position to determine than the Supreme Court.
This is perhaps the final chapter in long and protracted litigation which followed the death of Gertrude McCourt Shirk. In my opinion the case should be fully written — not merely written to show the highlights of the appellants’ case — but I hardly think a dissenting opinion the proper place to write it.
It is conceded by the parties the burden of proof in a case of this type requires the claimant to establish her contract by clear and *436convincing evidence. The numerous Kansas cases cited in the opinion for the court establish this rule. But as applied, I am inclined to believe the court has pushed the rule to one requiring proof beyond a reasonable doubt if, in fact, the court has not simply reweighed the evidence.
For example, the court quotes approvingly from Purcell v. Miner, 71 U. S. 513, 18 L. Ed. 435, where an oral contract of this sort was considered. (Cited and quoted in Heine v. First Trust Co., 141 Kan. 370, 375, 41 P. 2d 767.) Purcell was quoted to the effect that an oral contract cannot be made out by evidence of the declarations of a party to mere strangers to the transaction. But later in the opinion the court quotes approvingly from Laupheimer v. Buck, 135 Kan. 631, 11 P. 2d 721, which says:
“ *. . . Where the evidence to establish the parol contract relied upon consists of the testimony of plaintiff and his near relatives and immediate friends there is all the more reason for careful scrutiny. . . (p. 637.)
With such inconsistencies approvingly stated in the opinion, a claimant cannot successfully rely upon any witnesses to prove an oral contract by clear and convincing evidence. If all witnesses are subject to close scrutiny merely because they are strangers, or near relatives and immediate friends, it is readily apparent proof of an oral contract which would in effect deplete the assets of a decedent’s estate is almost impossible without written evidence to establish its existence.
The court also quotes approvingly from 49 Am. Jur., Specific Performance, § 169, p. 191, as follows:
“ ‘Where a proceeding is brought for specific performance, the rule seems to be established that more than a mere preponderance of testimony is required to establish the existence of tire contract when its existence is denied. In order that specific performance of a contract may be decreed, the evidence of the making of the contract must be clear and convincing, or, as stated, in some cases, clear, cogent, and convincing, or strong and conclusive. . . .’” (Emphasis added.)
By redefining clear and convincing evidence as something more than a preponderance of the evidence — pushing the definition beyond anything heretofore stated in the Kansas cases — the opinion for the court has injected confusion into the Kansas law.
This is indicated by the appellants’ repeated assertion in their brief of the definition of clear and convincing evidence stated in Aetna Insurance Company v. Paddock, 301 F. 2d 807 (5th C. C. A. 1962), quoted by the court in its opinion, and adopted as Syllabus ¶ 2 in the case.
*437This point can be intelligently analyzed by considering Kansas cases where the trial court found in favor of the claimant, as to the •establishment of an oral contract with a person since deceased, in an action seeking specific performance where the Supreme Court reversed on the ground the evidence was insufficient. Such cases are: James v. Lane, 103 Kan. 540, 175 Pac. 387; Nash v. Harrington, 110 Kan. 636, 205 Pac. 354; Woltz v. First Trust Co., 135 Kan. 253, 9 P. 2d 665; and Heine v. First Trust Co., 141 Kan. 370, 41 P. 2d 767. In none of these cases is there a definition of clear and convincing evidence as far-reaching as that adopted by the court in Syllabus ¶ 2. Some of these cases seem to require that die terms of the contract be established by clear and convincing evidence as distinguished from promises made by the decedent to do something in the future, or an expressed intention of the decedent to do something, thus rendering the existence of a contract uncertain or its terms lacking in certainty. Others say that claims of this nature should not be sustained upon doubtful proof.
Never has a mere conflict in the evidence been the basis of a reversal of the trial court. Furthermore, juries have been instructed as triers of the fact, for more than a century under Kansas law, in judging the credibility of a witness, that they may believe a part and reject a part of the testimony of a witness as being unworthy of belief. In the absence of a jury the trial court is entitled to use the same standard in determining the credibility of a witness. Now the Supreme Court says for the first time, if a witness is shown to have made a mistake, or testified falsely as to the time a contract was made, even though the terms of the contract are clear and certain, as established by other testimony of the witness, the entire testimony of such witness is unworthy of belief and must be rejected — that the contract has not been established by clear and convincing evidence.
The court in its opinion concedes the contract which the claimant sought to establish was shown by clear and convincing evidence insofar as the direct testimony of the claimant’s witnesses is concerned. But it then proceeds to relate how confused these witnesses were as to when the particular contract was made, and, based upon this confusion, concludes the claimant’s witnesses were unworthy of belief, contrary to the trial court’s determination that the testimony of such witnesses was credible and worthy of belief insofar as the making of the contract in question is concerned.
The appellants in seeking a reversal of this case on appeal contend *438that even without reviewing the testimony of the witnesses as obvious perjury, the evidence in the case is overwhelmingly indicative that no contract was ever entered into. The appellants then cite the following circumstances which are said to be particularly indicative:
“The alleged contract is completely inconsistent with the personality of Mrs. Shirk as described by all of the witnesses.
“In none of the correspondence during Mrs. Shirk’s lifetime was the alleged contract ever mentioned.
“On the occasion when Mrs. Shirk disinherited Betty, tire appeal to be reinstated did not even mention any contractual right to reinstatement. On the contrary, Betty resorted to the desperation tactic of having a grandchild, Carmen, tug at a grandmother’s heartstrings.
“On the occasion of the reading of the will, Betty was surprised to have fared as well as she did, and she sought to have the benefits of the will extended to her immediately.
“In her correspondence with Bill and Mr. Gassier thereafter, she made various appeals for extra largesse, but never for the discharge of a contractual right.
“When she finally decided on litigation, it was not on what would be an obvious basis: the enforcement of a contract right. Instead, it was on a highly dubious and unsupportable tort theory: a $200,000 damage suit against Bill for obtaining his mother’s last will and testament through undue influence. Though nine months were available to her to unveil the alleged contract, its germination and birth were apparently even too late to get under the wire before the bar of the non-claim statute operated!
“Finally, and completely inconsistently with the existence of any such contract, she tried to bribe her own daughter with a promise of one-half of what she would get out of establishment of the alleged contract.”
To the court these circumstances appeared material, but it is necessary to consider in some detail the personality and character of Gertrude McCourt Shirk and her children as reflected by the record.
It must be borne in mind that Gertrude owned and operated a hotel for many years in McPherson, a relatively small town. She operated it with considerable success financially. This is indicated by the fortune which she amassed during her life. Gertrude and her children lived in this hotel atmosphere, thus subjecting the children to all the disadvantage and vice prevailing in such an atmosphere.
It was consistent with Mrs. Shirk’s personality to make an agreement and later change her mind. She was an imperious dictatorial person who issued edicts. When she changed her mind she changed her edict. What she wanted at the time had to be fulfilled, notwithstanding any contract, promise, agreement or law to the contrary. Her imperious character is shown by the fact that she twice ob*439tained divorce decrees through emergency methods and had the decrees entered in one case the same day the case was filed, and in the other three days after the case was filed. That she was concerned with no ordinary compunctions is shown by her letter to Betty in December, 1939. She wrote:
“It may be just as well for you to come home for just a short while. You never pay any attention to any thing I say but I still hope that some day you will and I am very worried about you as I don’t want you to make another mistake. You married once for love and where did it get you. You act like you are going to do the same thing again. There is no excuse for your doing this again. The only thing that matters social security and money to pay the bills and certainly should marry (if at all) a man much older than your self who has plenty of money.”
In a will executed by Gertrude in 1945 she recited that she had made no contracts concerning her estate. Whether this was just the usual form of will used by the attorney at that time, or whether Mrs. Shirk was then conscious of having made an agreement with Betty and used this as an expedient way to evade her obligations, is not known.
In none of the correspondence presented to the trial court by the executor was there any evidence of an agreement not to disinherit Betty. At this point it should be stated the records and files of Gertrude McCourt Shirk were in the hands of Bill. Gertrude had been in the habit of retaining everything that occurred during her life in a system of files. Attempts by the attorney for Betty to examine these records and files of Gertrude was refused in spite of a demand for inspection and copy.
The appellee says in her brief that she believed written records substantiating Gertrude’s agreement with her existed. One might ask why Bill thought there was reason for the refusal of such examinations. Extreme hostility and animosity was displayed by Bill and his wife toward Betty, and the trial court apparently felt there was doubt about their candor and truthfulness with regard to their production of all pertinent estate records. The record discloses Bill has at all times been very secretive. He failed to inventory the personal items of Gertrude’s estate, and it was necessary for Betty to obtain a court order to compel him to do so. Bill was appointed executor without bond on October 17, 1957, and in his inventory and appraisement declared he had on hand $226,496.42 in personal property, other than jointly owned property, and that all of such property was in cash or securities other than $12,040 of such amount. When *440Bill failed to file an accounting Betty petitioned the probate court on April 5, 1960, for an order requiring him to do so. The probate court ordered Bill to file such accounting, but as of the date of trial, he had failed and refused to file any accounting whatever in the probate court.
Betty received a telegram from her mother saying that she was disinherited when Carmen, then in the seventh grade, was living with Betty. Betty then dealt with her mother in the only way she knew possible — by begging. This she did by having Carmen write a letter to her grandmother which Betty dictated.
The trial court was entitled to believe that Betty knew her mother s mind had been poisoned against her, when Betty expressed surprise to learn that she had received as much as she did in her mother’s last will and testament. The trial court was further justified in believing that Betty’s correspondence with Bill and his attorney, Mr. Cassler at that time, following her mother’s death was of the same tenor as that with her mother — begging, not demanding. The trial court was also justified in believing that Betty’s action in filing a petition for probate of the will, after Bill had done so, and before Betty retained independent counsel of her own, was a fraudulent scheme of Bill to defeat Betty in her claim. That Bill was expecting Betty to file a claim within the period of the nonclaim statute is indicated by the various calls of Bill at the probate court in McPherson to see if Betty had filed a claim within the statutory period.
The charge that the nonclaim statute ran before Betty filed her claim in the probate court in the instant matter is not borne out by the record, and the court has so indicated in its opinion. That Betty’s claim was not an afterthought is indicated by the testimony of the family friend that she made an affidavit in the office of Betty’s attorney three months before the nonclaim statute had run.
Carmen testified that in October, 1959, Betty tried to get her to testify on Betty’s behalf by offering Carmen one-half of what Betty got. This was long after the claim was filed and Carmen could be of little help. She could not remember and testify concerning conversations that took place in her presence at the age of two years.
Danny O’Brien went with his mother, Betty, when she saw Carmen some two or three times. He testified:
“Carmen said that she was upset because she was left out of the case since she was supposed to get one-third as was her mother and that she was mad at *441Mr. Mills. I don’t know what mother had to say about that. I did not hear my mother make any offer to Carmen to split with her.”
In 1939 when the contract is alleged to have been made, Gertrude was over fifty years old and deeply interested in her only grandchild, Carmen. Bill was then unmarried and had already been twice divorced. Betty’s then only marriage had ended in divorce. On March 22, 1939, Gertrude wrote to Bill concerning Betty as follows:
“If she wants a divorce why don’t she get it. She is married to a rotter, I believe, and as soon as she gets rid of him the better for all of us.”
Upon the entire record of the evidence presented in this case the trial court was entitled to find the terms of the agreements between Gertrude and Betty were clear and convincing and that the burden of proof had been sustained. It was apparent from the vigorous cross examination to which the witnesses were subjected that the witnesses who established the agreements were mistaken as to the exact date and some of the circumstances existing when such agreements were made. These events occurred more than twenty years ago, and, as a matter of common knowledge, memory as to inconsequential matters is dimmed by time, but the making of unusual family agreements — to adopt a child from the mother, to require the mother of the child to leave the state, and not to disinherit in exchange therefor upon specific terms of one-third, sharing with the grandchild adopted one-third — is impressionable on the human mind.
The existence of the contract is corroborated by the fact that Gertrude did adopt Carmen and Betty did leave the state of Kansas pursuant to the terms of the contract, facts concerning which there was no controversy in the record, and later after Betty remarried and established a comfortable home Gertrude released Carmen to Betty. This was also one of their agreements. Thus, the contract on Betty’s part was fully performed and, considering all of the facts in the record, it was not inequitable. (See, Woltz v. First Trust Co., supra.)
The trial court specifically found in its finding of fact No. 11:
“Betty Shirk O’Brien established her claim to a one-third share of the estate of Gertrude McCourt Shirk, deceased, by clear and convincing evidence. . . .”
In cases of this type it is the function of the trial court to weigh the evidence in accordance with the standard of proof required by *442the law. This is established by Jones v. Davis, 165 Kan. 626, 197 P. 2d 932, Syl. ¶ 2, which reads:
“Although the evidence to establish such a contract must be clear and satisfactory, it is the trial court which is to be satisfied and convinced.”
Also, in In re Estate of Boller, 173 Kan. 30, 244 P. 2d 678, this court said:
“. . . There was evidence supporting the finding, which the trial court found was clear and satisfactory. The burden of so finding was on the trial court, not on this court. . . .” (p. 39.)
Also, in Texas Co. v. Sloan, 175 Kan. 735, 267 P. 2d 919, this court said:
“. . . As has been often held the question whether the evidence is clear, strong and convincing is for the trial court, not this court. . . .” (p. 740.)
And in Pattimore v. Davis, 180 Kan. 534, 305 P. 2d 835, the enforcement of an oral contract was decreed which required clear and satisfactory evidence, and the court said:
“. . . The trial court simply saw fit to find the contract enforceable, as already set out in this opinion. We cannot weigh evidence here. . . .” (p. 539.)
It is respectfully submitted the trial court should be affirmed for the reasons stated.