Beall v. Hardie
| Citation | 279 P.2d 276,177 Kan. 353 |
| Decision Date | 22 January 1955 |
| Docket Number | No. 39569,39569 |
| Parties | Clara Samantha BEALL, Appellee, v. Alexander HARDIE, Willie Walker Wise, Reuben M. Wise, Anna M. Richards, Thurnelda Williams, and Thurnelda Williams, Administratrix of the Estate of Mary Wise, Deceased, Appellants. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court.
1. A rule for the construction of wills, to which all other rules are subordinate, is that the intention of the testator, as garnered from all parts of the will is to be given effect, and that doubtful or inaccurate expressions in the will shall not override the obvious intention of the testator.
2. Where a husband and wife made a joint will in which each bequeathed to the survivor a life estate in all his and her property, with a provision that the remainder should go to third persons, and one of the testators died and his survivor secured the probate of the will and took under it pursuant to its terms, and the will on its face showed it was made as a result of a contract between the two testators, the property of both passed according to the terms of the joint will.
3. Where a joint and contractual will provided that upon the death of either spouse therein, any and all property left by the deceased should come into the possession and be the sole and absolute property of the surviving spouse, however giving to the surviving spouse the right to sell any of the property upon his or her wish or desire, with remainder over to the children, held, that such devise vested in the surviving testator a life estate with the added power to sell any portion thereof, remainder to the children.
William A. Buckles, Burlington, for appellants.
Frank T. Forbes, Burlington, for appellee.
This was an action for construction of a joint will and to quiet title to real estate. The case was submitted to the trial court on the pleadings and stipulation of facts, and the court entered judgment quieting title in plaintiff, from which ruling defendants have appealed.
The facts are substantially as follows: John M. Wise and Ellen C. Wise were husband and wife. On June 8, 1915, they duly executed their joint will. It was headed 'Joint Will of John M. Wise and Ellen C. Wise, Husband and Wife'. Immediately below the heading it stated: 'We, John M. Wise and Ellen C. Wise * * *, Husband and Wife, being of sound mind * * * declare the following to be our Last Will and Testament that our property may be disposed of according to our present wishes in the manner and form following, that is to say:'
Paragraph 1 provides for the payment of debts, and the remaining provisions insofar as pertinent hereto are as follows:
'2nd In case of the death of John M. Wise it is his Will and wish and he here directs that his surviving widow, Ellen C. Wise shall come into possession of all property both personal and real that he may at the time of his death be in possession of or any interest in any personal property or real estate that he may at that time hold in any such property.
'3rd Should Ellen C. Wise die first it is her will and wish and she here directs that all property that she may then possess either personal or real estate shall come into the possession of her surviving husband, John M. Wise, or any interest in any such property that she may at the time of her death have.
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'5th It is the Will and wish of both Testators to this Will that upon the death of either of the members of this union that any and all property left by the deceased shall come into the possession and be the sole and absolute property of the surviving testator to this Will.
'6th It is the Will and wish of both members of this Will that no Appraisement or Inventory be taken and that what property is left the surviving member, be not sold, only upon the wish and desire of the surviving companion.
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'It is the Will, desire and wish of each member of this Will and Covenant that when both the members of this Will are dead that the real estate belonging to the said Testators of this Will the said John M. Wise and the said Ellen C. Wise that it shall be divided as follows between the two heirs and the only heirs named above, that is to say:--That all the following described real estate shall go to Willie Walker Wise, * * * and the following described real estate shall become the property of the said Clara S. Beall * * *' (Our italics.)
John M. Wise died November 29, 1915 leaving his widow, Ellen C. Wise, and their two children, Willie Walker Wise, appellant, and Clara Samantha Beall, appellee. The will was admitted to probate, his widow, Ellen, electing to take under the provisions of the will, and the estate was closed on February 2, 1917. On February 20, 1947, Ellen executed a warranty deed conveying all her interest in the real estate in question to appellee Clara Samantha Beall. Appellee claims title by virtue of the warranty deed from Ellen, and contends that under the terms of the will Ellen had the power to sell the property during her lifetime.
Appellant contends that the will was contractual and the real estate in question was devised to Willie Walker Wise, and that the most Ellen took, as survivor under the joint will, was a life estate without power of disposition.
The determinative question presented here on the pleadings and stipulation of facts is the same as that presented to the trial court, i. e., what type of estate did Ellen C. Wise acquire in the real estate under the joint will at the death of John?
The answer to the question presented depends upon the proper interpretation of the will. A rule for the construction of wills to which all other rules are subordinate is that the intention of the testator as garnered from all parts of the will is to be given effect, and that doubtful or inaccurate expressions in the will shall not override the obvious intention of the testator. In construing a will, the court must put itself as nearly as possible in the situation of the testator when he made the will and from a consideration of that situation and from the language used in every part of...
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