Baldwin v. Hambleton

• Decision Date: 05 March 1966
• Docket Number: No. 44355,44355
• Citation: 196 Kan. 353,411 P.2d 626
• Parties: Cynthia Douglas BALDWIN, Appellee and Cross-Appellant, v. Neal HAMBLETON, Individually and as Administrator of Estate of Irma Parker, Deceased. In the Matter of the ESTATE of Lulu M. HAMBLETON, Deceased, Appellants and Cross-Appellees.
• Court: Kansas Supreme Court

Page 626

411 P.2d 626

196 Kan. 353

Cynthia Douglas BALDWIN, Appellee and Cross-Appellant, v. Neal HAMBLETON, Individually and as Administrator of Estate of Irma Parker, Deceased In the Matter of the ESTATE of Lulu M. HAMBLETON, Deceased Appellants and Cross-Appellees.

No. 44355.

Supreme Court of Kansas.

March 5, 1966.

Rehearing Denied April 6, 1966.

Syllabus by the Court

1. The general rules for construing the language of a will considered and applied.

2. The law favors early vesting of testamentary gifts and unless a contrary intent appears, interests created by a will are to be construed as vested rather than contingent.

3. A will will be construed in favor of the heirs of a testator, and an heir, including a child of a deceased child, will not be considered as disinherited except by express words or necessary implication.

4. A remainder is vested if it is to take effect as to possession and enjoyment whenever and however the prior estate is terminated.

5. A remainder limited to a class, consisting of children, vests in such of the children as are in being, subject to being opened to let in children born after the will takes effect.

6. A remainder may be vested subject to partial or complete divestment or defeasance.

7. A life tenant, with power to sell property bequeathed to her for life with the remainder to designated persons, is not authorized to make a gift of the property.

8. In order for one member of a family to recover from another member for maintenance and support the claimant must show either an express contract for remuneration or that the circumstances under which the maintenance and support were rendered were such as to exhibit a reasonable and proper expectation that there would be compensation.

9. In an action to construe the provisions of a will and recover an interest in property passing thereunder, the record is examined and it is held, under the facts and circumstances disclosed the trial court erred in denying the successful plaintiff attorney fees to be paid out of the property in controversy.

Neal Hambleton, Olathe, argued the cause, and Richard G. Rossman, Olathe, was with him on the briefs for appellants and cross-appellees.

Peter A. Martin, Olathe, argued the cause and was on the briefs for appellee and cross-appellant.

HATCHER, Commissioner.

This is an appeal from a judgment construing the language of a will as creating a vested remainder.

The facts pertaining to the issues before us for consideration may be summarized.

C. S. Hambleton died on February 15, 1936, leaving a will dated January 14, 1920. The will was administered but not construed. We are interested in that part of the will which reads:

'SECOND. I give, devise and bequeath to my beloved wife, Lulu Hambleton, all property, real, personal and mixed, of which I die seized or possessed, with full power and authority to have, use, mortgage, sell, convey and dispose of during her natural life or until such time as she may remarry; in the event that my said wife should remarry it is then my will that all property remaining undisposed of, belonging to my estate at the date of her remarrying, be divided, one-half to my said wife and the remaining one-half to our children. That upon the death of my said wife without remarrying it is my will that all the rest, residue and remainder of my estate not disposed of or used by my said wife be divided equally between our children share and share alike.'

C. S. Hambleton was survived by his wife, Lulu and four children, Neal, Lola, Ruth and Irma. Ruth died intestate July 14, 1957, leaving as her sole heir a daughter, Cynthia Douglas Baldwin, born October 1, 1940.

Lulu, the widow, died testate on May 7, 1963, without remarrying.

At the death of C. S. Hambleton he owned 44 shares of stock in the De Soto State Bank. As executrix of his estate Lulu transferred the 44 shares of stock to H. E. Miller who transferred it back to her as an individual. No rights are claimed from or based on this transfer. During the lifetime of Lulu the stock increased to 165 shares as a result of stock dividends. On January 22, 1960, Lulu sold 33 shares of the stock. This sale is not questioned.

On June 8, 1962, Lulu made gifts of five shares of the bank stock each to Neal, Irma and Lola. Lulu held in her name at the time of her death a total of 117 shares. The 132 shares are involved in this litigation.

On May 27, 1963, Neal, executor of the will of Lulu, filed for inheritance tax purposes only an inventory and appraisal of the 15 shares, transferred by Lulu within one year of her death, and the 117 shares passing by reason of her death under the will of C. S. Hambleton. On June 12, 1963, Neal, as executor, transferred 39 shares of the stock each to himself, Irma and Lola.

Judgment of final settlement was entered June 15, 1964, in Lulu's estate from which Cynthia appealed to the district court on July 6, 1964. On the same day Cynthia filed an original action in the district court against Neal Irma and Lola to construe the will of C. S. Hambleton and for a declaratory judgment decreeing her an interest in the bank stock.

Irma died on October 25, 1964, and Neal Hambleton, administrator of her estate, was substituted as a party in both of the above cases.

Defendants answered denying any interest of plaintiff in the stock and contending that by the will of C. S. Hambleton his widow was vested of a life estate with the power of disposition of the stock and all the accretions thereto subject only to the condition that she not remarry, and that the remainder at her death without remarrying passed to the defendant children surviving the widow, Lulu M. Hambleton, in equal shares.

Defendants also filed counterclaims in the original action filed by Cynthia for maintenance and support furnished to Cynthia and her mother.

The case was heard by the trial court on plaintiff's motion to dismiss the counterclaims for failure to state a claim upon which relief could be granted and for summary judgment in the action to construe the will.

The trial court concluded:

'1. The court finds that the will of C. S. Hambleton, deceased, is susceptible of construction by a consideration of the will from the 'four corners' thereof, and that a consideration of oral evidence to determine the intention of the testator is not only unnecessary, but would be improper.

'2. The court construes said will as follows:

'(a) It gave Lulu M. Hambleton a life estate with a limited power of disposal which did not include the power to dispose of the assets (bank stock) by gift.

'(b) It created a vested remainder in the four children of C. S. Hambleton and Lulu M. Hambleton, all of whom were living at the time of the death of C. S. Hambleton, * * *.'

The court also denied the defendants' disputed counterclaims and plaintiff's claim for attorney fees.

The defendant, Neal Hambleton, on his own behalf and as administrator of the estate of Irma Parker, deceased, has appealed from the court's ruling on the merits. The plaintiff has cross-appealed from the order denying her attorney fees.

Appellants first contend that the court erred in excluding the deposition of Irma who was deceased at the time of the trial. The alleged purpose of the deposition was to show the character of the testator, his situation at the time he made his will, the nature of his business, the extent of his property and his relations with his family.

The appellants attempted to introduce the deposition at the hearing on the motion to dismiss and for summary judgment. The trial court concluded that when the will was considered from its four corners and under the rules of this court there were no ambiguities requiring the aid of evidence as to surrounding circumstances and therefore the consideration of the deposition would be improper.

We are inclined to agree with the ruling of the trial court. The will does not appear to contain any ambiguity, either latent or patent. The intent of the testator can be determined and the will carried into effect without the aid of extrinsic evidence as will be demonstrated when we consider the meaning of the language in the will.

This court has repeatedly held that extrinsic evidence is not admissible to show the intention of the testator where there is no ambiguity in the language used, or to give the language of the will a meaning different from that which the law attributes thereto. Rules of construction are inapplicable where tetms of a will are explicit. (In re Estate of Reynolds, 173 Kan. 102, 244 P.2d 234; In re Trust Estate of Woods, 181 Kan. 271, 311 P.2d 359; In re Estate of Blank, 182 Kan. 426, 320 P.2d 775; Johnston v. Gibson, 184 Kan. 109, 334 P.2d 348; In re Estate of Taylor, 185 Kan. 523, 345 P.2d 1028; In re Estate of Jones, 189 Kan. 34, 366 P.2d 792; Parsons v. Smith, Trustee, 190 Kan. 569, 376 P.2d 899.)

The cardinal rule for the construction of a will is to ascertain the intention and purpose of testator from the language used. (In re Estate of Johnson, 175 Kan. 82, 259 P.2d 176; in re Estate of Freshour, 185 Kan. 424, 345 P.2d 689, 81 A.L.R.2d 806.)

The appellants contend that:

'The court erred in construing the will to create a vested remainder in the four children of C. S. Hambleton and Lulu M. Hambleton living at the time of the death of C. S. Hambleton, each receiving an undivided one-fourth thereof, so that the vested remainder interest of Ruth Hambleton Douglas passed upon her death to the plaintiff, her daughter.'

The trial court considered the language of the will as a whole, which it was required to do. The testator's intent must be gathered from the language of the entire will. (In re Estate of Dobrovolny, 182 Kan. 138, 318 P.2d 1053; Commercial National Bank of Kansas City v. Martin, 185 Kan. 116, 340 P.2d 899; In re Estate of Kelly, 185 Kan. 752, 347 P.2d 428; In re Estate of Miller, 186 Kan. 87, 348 P.2d 1033; In re Estate of Buckner, 186 Kan. 176, 348 P.2d 818; In re...