concurring and dissenting: I agree with the majority that the standard of proof should be clear and convincing evidence under the instant fact situation. The trial court determined the clear and convincing standard applied and so instructed the jury.
I detach myself from the majority’s observation: “In fact, it appears logical that the temptation for fraud is greater for a third-party beneficiary.” The majority’s observation relates to the distinction made by the Court of Appeals between litigation involving a claimant who allegedly contracted with the decedent to perform services in exchange for a promise to leave the claimant property in decedent’s will (the oral promise must be proved by clear and convincing evidence), and situations similar to the case at bar (claimants are third-party beneficiaries to an alleged mutual will contract among several decedents). In my view, the former is more susceptible to fraud than the latter. In the beneficiary situation, as in the case at bar, written evidence is present (the will in question and the will or wills forming the basis of the alleged contract).
I dissent from the majority’s reversal of the jury verdict. The majority has, contrary to the verdict of the jury and the ruling of an experienced trial judge, entered judgment for appellant Edith Stratmann, holding that Bert Stratmann’s 1983 will is not subject to the contractual claims of appellees as third-party beneficiaries.
The majority has applied an incorrect scope of review.
What is the scope of review for this court, in the instant litigation, as it rewalks the path of the jury, the trial judge, and the Court of Appeals?
The answer is found in the opinion of Justice McFarland, speaking for the court, in Newell v. Krause, 239 Kan. 550, 557, 722 P.2d 530 (1986). Krause picks up the cardinal thread of the judicial review fabric woven in In re Estate of Shirk, 194 Kan. 424, 399 P.2d 850 (Shirk I), modified and reh. denied 194 Kan. 671, 401 P.2d 279 (1965) (Shirk II).
“Clear and convincing evidence is not a quantum of proof, but rather a quality of proof; thus, the plaintiff establishes fraud by a preponderance of the evidence, but this evidence must be clear and convincing in nature. *209On review, this court considers only the evidence of the successful party to determine whether it is substantial and whether it is of a clear and convincing quality.” (Emphasis added.) Krause, 239 Kan. at 557.
The majority relies on Shirk I as its guide for establishing the scope of review. 194 Kan. at 427. (“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.”) The Shirk I inquiry is incomplete. Without Shirk II, the reader is misled and the evidentiary focus of the appellate court’s scope of review is either obscured or “off target.” Shirk I and Shirk II must be read as one opinion for identification of the proper scope of review.
In fact, Shirk II sends out the dominant signal. In Shirk II, this court was confronted with a motion for rehearing addressing the language of Shirk I. The Shirk I appellee, who won in the trial court on an oral agreement claim against an estate but lost in this court, filed a motion for rehearing. The motion challenged the language of Shirk I dealing with the quality of evidence required to meet the clear and convincing test necessary in establishing an oral contract with a deceased person.
We denied the motion for rehearing but extended the Shirk I opinion; consequently, the two opinions must be read together. This the majority has failed to do. The pithy extension of Shirk II instructs us on the scope of review:
“It was not the intention of this court to depart from the long established rule that it would not weigh evidence on appeal. ... In reviewing the record for the purpose of determining whether there is clear and convincing evidence to support the judgment this court does not weigh the evidence.” 194 Kan. at 672.
After repeating the admonishment “not to weigh the evidence,” Shirk II tells us what to do in the case at bar. We are to consider “only the evidence of the successful party for the purpose of determining whether it is substantial and of that quality required to be clear and convincing.” (Emphasis added.) 194 Kan. at 672.
John O’Donnell was Edith Stratmann’s witness. O’Donnell’s testimony was not evidence of the successful party. The charities prevailed. The jury found that a contract existed.
The majority not only relies on the testimony of John O’Donnell, but also characterizes it as “persuasive.” In its opinion, the *210majority has the following to say about the evidence of the unsuccessful party as that evidence relates to the 1970 wills of Otto, Bert, and Mathilda Stratmann:
“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 ineifective.”
The majority observes that the existence or nonexistence of a contract is a question of fact, citing Reznik v. McKee, Trustee, 216 Kan. 659, 671-72, 534 P.2d 243 (1975). I agree.
The jury was instructed (No. 6):
“In reviewing the evidence as presented in the terms of the will, you should put yourself as nearly as possible in the situation of the testator (person making the will) when he or she made the will and may take into consideration all other evidence admitted in this case in attempting to put yourself in such a position to determine what the testator’s actual intent was at the time the will was executed.”
The jury in a special verdict form proposed by counsel for Edith Stratmann found the 1970 wills of Otto, Bert, and Mathilda to be contractual.
“We, the jury, present the following answers to the questions submitted by the Court:
“1. Do you find that a contract was entered into prior to July 16, 1970, among Bert, Otto and Mathilda Stratmann, whereby they contractually *211bound themselves that the last of them to die would leave all of their property to the following claimants in the following percentages:
“Lutheran Society Good Samaritan Home 10%
“Central Kansas Medical Center 10%
“First Presbyterian Church of Ellsworth 25%
“Sterling College 45%
“Ellsworth County Veterans Memorial Hospital 10%
and thus Bert Stratmann could not change his Will after the deaths of Otto Stratmann and Mathilda Stratmann and the provisions of his November 10, 1983 Will should be given no effect?
“ANSWER: YES X NO_”
The jury also found the 1976 wills of Bert and Mathilda to be contractual by indicating “yes” on a similar verdict form proposed by Edith Stratmann.
The trial judge in his memorandum of decision on the post-trial motions of Edith for judgment notwithstanding the verdict or in the alternative motion for a new trial reasoned:
“There can be no argument that the burden of proof in a case of this nature is on the Claimants, that it must be clear and convincing evidence.
“Further in a Motion for Judgment Notwithstanding The Verdict, all evidence is construed most favorable to the party against whom the motion is directed.
“In a motion for a new trial, the Court must make an overview of all the evidence and use its sound discretion as to whether there was error and, if so, whether such error was so prejudicial as to warrant a New Trial.
“Both sides have filed lengthy briefs, reply briefs, and the Court heard lengthy arguments several months ago. The Court has reviewed all briefs along with a transcript of the Arguments made on October 6, 1988. It would seem to the Court that the sole issue is: “whether there was evidence presented of a clear convincing nature that Otto, Mathilda and Bert made an agreement as to exactly how their property was to be ultimately disposed of.” (Emphasis added.)
Krause instructs that clear and convincing evidence is not a quantum of proof but rather a quality of proof. The charities must establish a contract between Otto, Bert, and Mathilda by a preponderance of the evidence—evidence which carries the quality of “clear and convincing.” See 239 Kan. at 557. Shirk II and Krause direct us to consider only the evidence of the successful parties; in this case, the charities. Shirk II offers further assistance in resolving the instant case. The trial court must be satisfied that the evidence is clear and convincing. 194 Kan. at 672. Here, *212the trial court was satisfied. The trial court gave the jury the clear and convincing instruction from PIK Civ. 2d 2.11.
Shirk II observes: “It may be said that in every case the trier of facts must be satisfied with the evidence, there must be some evidence to support the findings, and on appeal it will be presumed that the findings are supported by evidence unless there is a showing to the contrary.” 194 Kan. at 672. The charities, as would all appellees similarly situated, arrive here with the benefit of the Shirk II presumption.
Let us consider the evidence of the successful parties.
The threshold for departure is the observation of the trial judge in his memorandum decision on the Edith Stratmann post-trial motions: “Otto, Mathilda and Bert Stratmann were the unmarrieds in the Stratmann family, they lived together on the homestead where they grew up. They together amassed a sizeable fortune. To put it mildly they did not get along with their three brothers who had married.”
The similarities among the wills of the three single siblings provide circumstantial evidence that an agreement was reached. Additional circumstantial evidence of a contract is provided by the consideration of the three that their property was a part of one Stratmann estate, even though they held property separately. Together they listened to representatives from the charities as the representatives attempted to solicit funds. They made their wills at, or near, the same times. Over the years, as they revised their wills, the provisions among them were always similar or identical.
The first wills drawn by Bert, Otto, and Mathilda (the singles) were drawn approximately 20 days after their mother’s death in June of 1960. The singles drew their first identical wills in April of 1963. All of the wills excluded the married siblings completely.
Otto and Mathilda were together when one another’s 1970 wills were prepared and signed. Mathilda stated during a deposition that they made the 1970 wills to protect themselves. She testified that the threesome agreed to give their property to each other at that time after talking about it “quite awhile.”
The Stratmann family was characterized by intense conflict. Bert, Otto, and Mathilda had nothing to do with the three married siblings. The conflict continued over a period of many years. *213When Chris Stratmann, the oldest sibling, was married in the 1920’s, the family forced him to move. Ervin, the second to marry, was also forced off into another county when he was married. Ervin was barred from visiting the homestead. The third to marry was Marvin. Otto, Bert, and Mathilda, refused to permit his fiance into their home.
The singles not only avoided the marrieds but also sued them. The history of the singles versus the marrieds was before the jury. The extreme nature of the hostile relationship is represented by a suit filed by the singles against the marrieds over the ownership of a plow. The litigious flavor of the singles/marrieds relationship surfaced in this court. Stratmann v. Stratmann, 204 Kan. 658, 465 P.2d 938 (1970) (Bert, Otto, and Mathilda against Ervin and his wife Sybil in a quiet title case involving royalty interests).
Otto died in August 1973 at the Central Kansas Medical Center. More litigation followed. The marrieds filed a will contest against Otto’s estate. The claim was settled. The remaining singles executed codicils to their wills noting that the exclusion of the marrieds, their spouses, and offspring was intentional. In July 1975, Marvin and Ervin (two marrieds) sued Bert, who acted as executor of the Estate of Tena Stratmann, for fraud and for holding bearer bonds that should have been inventoried in the estate. In 1978, Marvin (a married) filed suit against Bert and Mathilda to quiet title to an oil royalty interest Bert was claiming. See Stratmann v. Stratmann, 6 Kan. App. 2d 403, 628 P.2d 1080 (1981).
The singles attended the First Presbyterian Church in Ells-worth. Reverend Ray, their pastor, knew Otto, Bert, and Mathilda well. The singles lived in the same house, ate meals together, and conducted their finances together. Reverend Ray testified that the singles acted as a team. He stated that they did not have any heirs and they did not care for anyone else to have their money besides them.
Reverend Ray stated that he knew if any of the three singles ever married they would be “cut out” by the others. He had no recollection of any of the threesome even dating anyone, and he noted that the singles had purchased cemetery plots so that they *214could be buried together. The jury could find that the singles anticipated each other remaining single until their death.
Reverend Ray was also on the Board of Directors of Sterling College, a Presbyterian college in Sterling, Kansas, and was an alumni of the school, as were all six of his children. Reverend Ray, knowing that the singles had substantial assets and that they were interested in Christian education, introduced them to the President of Sterling College, Dr. William McCreery. Dr. McCreery first met the singles in the spring of 1970 prior to their new wills being drawn. He called on the singles in their home. He was there as a “salesman” for the college. He spoke with them about what they might do to help the college and its students. He told them that they could make a permanent contribution to the college which would fund scholarships for Christian students in perpetuity.
The singles were excited about the idea of a Stratmann Scholarship at Sterling College, so that their names would live in perpetuity. During one of the visits, Bert told Dr. McCreery that the college had been “taken care of” in the estate. When Reverend Ray asked for some money for Sterling College prior to the deaths of the singles, Bert told him, “No, you’re going to get our money when we die.” The money was referred to as “our money.” Reverend Ray responded: “I took their word the fact is if Bert said he would give me a million dollars I would probably go out and start buying things on time because his word was good.” Reverend Ray informed the Board of Directors of Sterling College that it would be receiving $1.5 million or more from the Stratmann Estate.
The singles had few close friends. They were good friends with Reverend Ray and his wife. Reverend Ray had testified in court for the singles in the past. He knew them well and ministered to their spiritual needs for over 20 years. When Reverend Ray would visit with the singles, he would visit with all three at the same time. The singles acted as a team.
Mathilda was admitted to the Central Kansas Medical Center 45 times. Mathilda was a rather shy person. She seemed lonely and depressed during her stays at the hospital. Sister Miriam spent a lot of time visiting with-her. Mathilda often asked Sister Miriam to pray with her.
*215Whenever Mathilda was admitted to the hospital, Bert would bring her. He would also take her home upon being dismissed. He visited her regularly. Sister Miriam recalled one particular visit with Bert. During the conversation, according to her testimony:
“[T]hen he went on to tell me also that on the many admissions that there was for Mathilda he said we were always so nice to her and we did many nice things for her, and when she was there for awhile she always came out of her depression and she always felt better. The nurses and everyone always made her feel so much better that she was able to go back home and function again for awhile .... And he proceeded on to tell me that they’re going to do something nice and they’re going to remember us when the occasion comes to ... . He just told us that they were gonna do something nice for us. He said we are going to do something nice for you because you have been so nice to Mathilda every time she comes to the hospital.”
Otto and Mathilda predeceased Bert. Both estates passed by will to the surviving single. At age 81, shortly after Mathilda’s death, Bert, the last of the singles, married Edith Oeser.
Edith was a nurse’s aide at the hospital. She had known Bert due to prior hospitalizations of Otto and Mathilda. Edith had also helped Mathilda in the family home on various occasions. Edith had been married for 44 years before her divorce in 1980. Edith was 62. Her first date with Bert was in November 1981, less than a month after Mathilda’s death. Bert told his nephew Larry that Edith wanted to get married in the spring and she was moving her stuff out to the farm. Edith and Bert were married in April 1982, less than six months after Mathilda’s death.
In October 1981 when Mathilda died, her estate was valued at approximately $1.3 million. She was buried side by side with her brother Otto. The singles had purchased three cemetery plots at a local cemetery so they could all be buried together. There was a large tombstone which said “Stratmann,” and small markers for the individual graves of Otto and Mathilda. Bert planned to have his marker installed upon his death.
Bert died at home in July of 1986. He was buried in a different cemetery from Otto and Mathilda. The plot next to Otto and Mathilda’s graves is empty.
The jury heard evidence during a four-day trial. The wills as documentary evidence were considered.
*216The challenge in this case asserted by Edith is to the jury’s finding of fact. The existence or nonexistence of an agreement underlying contractual wills is a question of fact.
Had I been the trier of fact, I might not have found as the jury did. This court, however, must review evidence with deference to the jury’s findings.
I cannot say that the jury erred when there is circumstantial evidence to support its findings. Applying our scope of review from Shirk II and Krause (considering only the evidence of the charities, the successful parties), I would hold a contract had been established by a preponderance of the evidence and that the evidence is clear and convincing in nature. Substantial evidence of a clear and convincing quality exists to support the jury verdict.
I would affirm the trial court and the result reached by the Court of Appeals.