Berry v. Berry's Estate

• Decision Date: 10 December 1949
• Docket Number: No. 37681,37681
• Citation: 212 P.2d 283,168 Kan. 253
• Parties: BERRY v. BERRY'S ESTATE.
• Court: Kansas Supreme Court

Page 283

212 P.2d 283

168 Kan. 253

BERRY v. BERRY'S ESTATE.

No. 37681 Supreme Court of Kansas.

Dec. 10, 1949.

Rehearing Denied Feb. 3, 1950.

Syllabus by the Court

A husband and wife, being the owners as joint tenants with right of survivorship, and not as tenants in common, of eighty acres of real estate, executed their joint and mutual will, which by its very terms was declared to be contractual. By the provisions of the will, which are more fully set out in the opinion, the survivor was to take a life estate in all property of the deceased and upon the death of such survivor all the property was to be divided between two sets of children named in the will. The husband died, the will was admitted to probate and upon final settlement of his estate the surviving widow claimed full title to the eighty acres in question. Held, the terms of the contractual joint and mutual will effected a severance of the joint tenancy provision in the deed and upon the death of the husband the surviving widow took a life estate in the eighty acres with remainder over.

David Prager, of Topeka, argued the cause, and Edward Rooney and Jacob A. Dickinson, of Topeka, on the briefs, for appellant.

Harry K. Allen, of Topeka, argued the cause, and L. M. Ascough and Marion Beatty, of Topeka, on the briefs, for appellee.

PRICE, Justice.

This appeal involves the interpretation of the provisions of a joint and mutual last will and testament.

Lon and Ethel Berry were married in 1931. Each had been married before and each had three children by such former marriages.

On March 1, 1945, one Brandenburg and his wife conveyed eighty acres of real estate situated in Shawnee County to Lon and Ethel as joint tenants with right of survivorship, and not as tenants in common. On September 5, 1945, Lon and Ethel executed their joint and mutual last will and testament, the pertinent portions of which are as follows:

'* * * Whereas, we are both mindful of the uncertainty of life and it being our desire to jointly dispose of our property in accordance with an agreement reached between us, we, Lon Berry and Ethel Berry, husband and wife, being of sound mind and disposing memory, do hereby make, publish and declare this to be our joint and mutual and irrevocable will and we hereby declare it to be contractual.

'We each agree and direct that upon the death of the first one of us the survivor shall take a life estate in all the property of the deceased, both real and personal and upon the death of the survivor, all the property, both real and personal, shall descend and be divided among the respective children of each. That is to say: one-half of said property shall be divided share and share alike among the three children of Lon Berry and one-half of said property, share and share alike, among the three children of Ethel Berry. The respective parties to this will have been married before and each have three children by former marriages. * * *'

Lon died on November 9, 1945, and the will was duly admitted to probate by the Probate Court of Shawnee County. Ethel, as administratrix with the will annexed, administered the estate and upon final settlement the court entered its order and finding to the effect that upon the death of Lon the full title to the eighty acres in question 'was vested immediately in the surviving joint tenant, his wife, Ethel Berry, and that such real estate so owned in joint tenancy was subsequent to the death of Lon Berry, the sole property of the surviving joint tenant, Ethel Berry, wife of the decedent'.

Walter Berry, appellee here, a son of Lon by his former marriage, appealed to the distict court, alleging that by the provisions of the joint and mutual will Ethel took only a life estate in the real estate in question. In the district court the matter was heard on a stipulation of facts, substantially as above set out, and Ethel introduced oral evidence with reference to the alleged execution and delivery by Lon to her of a quitclaim deed on or about September 25, 1945, by which it is alleged Lon quitclaimed to her all of his right, title and interest to the real estate in question. This evidence showed this alleged quitclaim deed to be lost and neither had it been recorded.

On September 17, 1948, the district court entered its order and filed a memorandum in the nature of findings of fact and for its conclusion of law ruled that upon the death of Lon the joint and mutual will became of full force and effect and that under it Ethel took a life estate in the eighty acres in question, with the remainder in fee to the two sets of children mentioned in the will.

Ethel filed a motion for a new trial, one of the grounds being 'that the decision of the court is in whole and in part contrary to the evidence' . This motion was argued by counsel, taken under advisement, and was on December 16, 1948, denied. Notice of appeal from the order and decision of September 17, 1948, and from the order overruling the motion for a new trial was served on February 10, 1949.

Appellee has filed his motion to dismiss the appeal for the reason that it was not taken until more than two months after September 17, 1948, that being the date when the trial court rendered its judgment. We will not labor the question, but in our opinion the appeal was taken in time.

At the trial in the lower court oral evidence with reference to the execution, delivery and provisions of the alleged quitclaim deed was introduced, and while it is true that the lower court's written memorandum does not make it clear as to what the trial judge actually thought about the execution of the quitclaim deed, yet we are of the opinion that the motion for a new trial clearly called for a re-examination by the trial court of the facts in controversy. It should be noted that the evidence concerning the provisions of this deed--that is, whether it purported to convey a fee to Ethel or merely a life estate was conflicting and during the trial the court said: 'I think from all this oral evidence here I will make one finding right now and that is if there was such a deed that had the description to this eighty acres on it, * * * that all in the world it did was to create a life estate in Mrs. Berry, and that's all.'

The appeal was taken within two months from the date the motion for new trial was overruled and appellee's motion to dismiss is therefore denied.

In her brief appellant advances several different theories and grounds for reversal of the trial court's decision, and contends that the correct solution to the problem presented is that the joint and mutual will did not work a severance of the...