In re Hill's Estate

• Decision Date: 25 January 1947
• Docket Number: 36745.
• Citation: 162 Kan. 385,176 P.2d 515
• Parties: In re HILL'S ESTATE. v. HILL. CLUTTER
• Court: Kansas Supreme Court

176 P.2d 515

162 Kan. 385

In re HILL'S ESTATE.

CLUTTER v. HILL.

No. 36745.

Supreme Court of Kansas

January 25, 1947

Appeal from District Court, Mitchell County; William R. Mitchell Judge.

Proceeding in the matter of the estate of J. E. Hill, deceased, on the petition of May Hill Clutter, executrix, against Delta Moss Hill for a construction of decedent's will. From an adverse judgment, executrix appeals.

Reversed and remanded with instructions.

Syllabus by the Court.

1. Parties contemplating marriage may contract with each other concerning their property rights and such contracts, when fairly, equitably and intelligently made, will be upheld and liberally interpreted to carry out the intentions of the parties to them.

2. The rules governing the construction of contracts generally are applicable to the construction of antenuptial contracts.

3. A primary rule for the construction of contracts is that, if possible, the court must ascertain and give effect to the mutual intention of the parties as of the time the contract was made, unless in contravention of legal principles statutes or public policy.

4. The intention of the parties to and the meaning of a contract are to be deduced from the contract where its terms are plain and unambiguous, and when the language is clear and unequivocal the meaning must be determined by its contents alone, and words cannot be read into a contract which import an intent wholly unexpressed when the contract was executed. The court may not make an agreement for the parties which they did not make for themselves.

5. A claim asserted by one of the parties to an antenuptial contract against the estate of the other party, which if allowed would reduce the amount of assets which would otherwise be distributed to his heirs or legatees constitutes a demand against the estate of the deceased party.

6. Such a demand must be timely asserted as required by G.S.1945 Supp. 59-2239.

7. An executor or administrator is without power to waive the statute of limitations or nonclaim of the above statute, and if, in an attempt to prove such a demand, it develops it is barred, it is the duty of the court to disallow it.

8. Ademption is the term used to describe the act by which a specific legacy has become inoperative by the withdrawal or disappearance of the subject matter from the testator's estate in his lifetime.

9. Where the testator sells or disposes of real or personal property which is the subject matter of a specific legacy, the sale or disposal, without more, results in an ademption and the legatee takes nothing of it under the will.

10. The court has no power to reform a will or to make a will for the testator otherwise than as he saw fit to make it.

11. The record examined in an action to construe a will, and to determine the rights of a wife under an antenuptial contract, and held, the trial court erred in adjudging that the claimed rights of the wife under the antenuptial contract, constituted a claim or demand against the estate of the deceased party.

Fred Hinkle, of Wichita, for appellant.

Wm. N. Tice, of Beloit, for appellee.

THIELE Justice.

This is an appeal from a judgment rendered in a proceeding to construe a will.

Prior to June 9, 1934, one J. E. Hill, whose will is under consideration, was the owner of a certain tract of real estate in Wichita, Kansas, the legal description of which is not of present importance. The post-office address of the real property was 1824 Ida Avenue. On that date he and one Delta Moss, in contemplation of their marriage, entered into a written contract reciting their proposed marriage, and that each had children by former marriages who helped earn what property each possessed and that they should have an understanding as to its disposal, and agreeing that if she should die first he would make no claim to her property, and in case of his death she would make no claim to any part of his estate 'except the property at 1824 Ida Avenue, which shall be hers to hold and to use as long as she shall live, together with its furnishings, and at her death it shall pass to the lawful heirs of J. E. Hill.' Thereafter, on June 10, 1934, J. E. Hill, then 74 years of age, and Delta Moss, then 70 years of age, were married, and they lived together until the death of J. E. Hill on October 13, 1944. On August 18, 1937, J. E. Hill made his last will and testament. We need not set out formal provisions, provisions for payment of debts and funeral expenses, or the designation of residuary legatees, as the only part in question is the third numbered paragraph, which recites:

'Third: I have made no provision herein for my present wife, Delta Moss Hill, for the reason that the said Mrs. Hill and myself were married to each other rather late in life, both of us having children of our own by former marriages, and we having mutually agreed to and with each other that each of us should have the right and privilege of giving to our respective children such property as we, or either of us, might own at the time of our death; however, it is my will and desire that my said wife, Delta Moss Hill, should she survive me, shall have the right and privilege of occupying the premises where we now live, commonly known as No. 1824 Ida Avenue, together with the furniture contained therein, for and during the period of her remaining life time, and at her death, be divided between my children as herein set forth and provided.'

Attached to and a part of the document was a consent of Delta Moss Hill which stated she had read the will and understood it, the share she was entitled to take on testator's death and that she accepted it and agreed to abide, and 'do hereby waive, release and relinquish any and all claims, rights, interests or estates which I may otherwise have in the property of my said husband at his death.' Both the will and consent were executed as required by statute. Later and on August 24, 1937, J. E. Hill made a codicil to his will, but it did not affect the provision for Delta Moss Hill. On July 6, 1942, J. E. Hill and Delta M. Hill, husband and wife, for a stated consideration of $1 and other considerations, conveyed the above real estate by its proper legal description to one Evans. The net amount received by the grantors was $3700, which was invested in United Sates government bonds, which were on hand at the death of Hill. The furniture was sold for $288. For a short time after the property was disposed of Mr. and Mrs. Hill lived with his daughter in Wichita and they then moved to Beloit, Kansas. When they first came to Beloit, Mr. Hill looked at a number of houses with a view of purchasing a home but no purchase was made, and they rented an apartment which they occupied until the death of Mr. Hill on October 13, 1944. The sale of the property in Wichita and the removal to Beloit was so that Mrs. Hill could be near her children and both Mr. and Mrs. Hill consented to their removal to Beloit.

Shortly after the death of J. E. Hill proceedings were commenced in the probate court and on November 10, 1944, his will was admitted to probate, and May Hill Clutter was appointed as executrix and duly qualified. The administration of the estate proceeded. In September, 1945, the executrix filed her petition in the probate court, setting out her appointment and qualification and that she had possession of the assets of the estate. She directed attention to the third paragraph of the will, and that after execution of the will J. E. Hill and Delta Moss Hill had conveyed the real estate described to Evans; that the furniture had been sold; that the deceased J. E. Hill at the time of his death owned neither the real estate nor the furniture; that no other real property of any kind nor other furniture had been purchased; that as executrix she was prepared to conclude administration of the estate and to make distribution of the estate to the legatees and devisees named in the will; that she could not distribute and deliver the property at 1824 Ida Avenue nor the furniture therein because, for reasons stated, she never possessed the same as executrix; that the acts and deeds of J. E. Hill and Delta Moss Hill in conveying the real estate and selling the furniture constituted an ademption and relieved the executrix from making any distribution to Delta Moss Hill; and that Delta Moss Hill while recognizing that the executrix could not deliver the real estate and furniture, contended that there should be paid to her from the estate of J. E. Hill financial compensation as near as may be, equal in value to the bequest made under the quoted paragraph of the will. Under her prayer the executrix asked that the acts of J. E. Hill and Delta Moss Hill in conveying the real estate and selling the furniture be declared to be an ademption and that she be relieved from paying to Delta Moss Hill any financial compensation or other benefit in lieu and instead. Under appropriate proceedings the matter was certified for trial to the district court, where most of the facts were stipulated. Some testimony was received, but as to it there was no important dispute.

The district court made findings of fact embodying the matters heretofore detailed and that it was the intention of J. E Hill, at the time the antenuptial contract was executed, and at the time he executed his will, at the time of the sale of the Wichita property, to provide a home for Delta Moss Hill as long as she should live. Such other findings of fact as are necessary will be mentioned later. The district court concluded as a matter of law the antenuptial contract was binding upon J. E. Hill during his lifetime and was a valid and existing obligation against the executrix of his estate, and that the executrix should pay...