Bierer v. Bierer

• Court: Kansas Supreme Court
• Writing for the Court: HARVEY, J.:
• Citation: Bierer v. Bierer, 121 Kan. 57, 245 P. 1039 (Kan. 1926)
• Decision Date: 08 May 1926
• Docket Number: 26,645
• Parties: SAMUEL BIERER, Trustee, Appellee, v. GEORGE BIERER, FREDERICK BIERER, LOUIS H. PUTNEY, a Minor, STERLING LITTLE, a Minor, Appellees (MARY E. BIERER, Appellant)

245 P. 1039

121 Kan. 57

SAMUEL BIERER, Trustee, Appellee, v. GEORGE BIERER, FREDERICK BIERER, LOUIS H. PUTNEY, a Minor, STERLING LITTLE, a Minor, Appellees

(MARY E. BIERER, Appellant)

No. 26,645

Supreme Court of Kansas

May 8, 1926

Decided January, 1926.

Appeal from Brown district court; C. W. RYAN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WILLS--Construction--Intention of Testator. A testator is not required to write all the provisions of his will in one sentence, or in one paragraph. The will should be construed as a whole for the purpose of determining the intention of the testator.

2. SAME--Probate--Construction of Final Order. The language of an order of the probate court approving the final account of executors, and finding and adjudging who are the heirs and entitled to distributive shares of the estate, should be construed to be in harmony with, rather than antagonistic to the provisions of the will as to trustees for one of the heirs, if that can reasonably be done.

Arthur M. Jackson, of Leavenworth, for the appellant.

F. M. Pearl, W. F. Means, both of Hiawatha, W. J. Boyd, M. J. Duvall and E. B. Wilkinson, all of St. Joseph, Mo., for the appellees.

OPINION

HARVEY, J.:

This is an action to construe the will of Colonel Everard Bierer, late of Brown county. The testator was a practicing attorney for years, and the will is in his own handwriting. The provisions of the will, so far as they are necessary to be noted in this case, are in substance as follows: The first paragraph relates to the erection of a mausoleum for the interment of the testator and his family. The second paragraph gives all of the testator's property to his wife, should she survive him, for her use during her life or her widowhood. The third paragraph provides:

"Should my dear wife survive me, then after her decease or remarriage, I will and direct that all my real and personal estate with the exceptions hereinafter provided, shall descend and be distributed among all my children in equal shares, the children or descendants of any of my children who may have deceased taking and inheriting their parent's share by representation."

The exceptions noted are: (a) That a son, Samuel, for reasons stated, should have an additional $ 1,000. (b) A daughter, Retta Shadel, should have the piano. (c) Any advancements which the testator charged on his books should be considered in making the distribution. (d) In the event any child of the testator died before the death of the testator and his wife, the share of such child should go to that child's children, if he or she left children, and if not, the same should become a part of the testator's estate, with a provision that the surviving wife or husband of such deceased child should receive $ 1,000. (e) In the fourth paragraph a provision is made that the daughter, Anna E. Bokaye, should have, if she desired it, a certain quarter section of land as her distributive, share, the value to be determined by appraisement and adjusted in the distribution. (f) In the fifth paragraph an exception is made as to his son Daniel, as follows:

"The share of my estate coming to my son, Daniel Bierer, if he survives his mother and myself, shall not go into his possession but shall remain under the control of my executors or their successors as trustees during his life, unless he adopts better habits and shows better aptitude for business and taking care of money and property than he has ever heretofore done, in the judgment of my executors, he to enjoy the proceeds of his share of my estate for himself and children, the principal to be invested in real and personal property for his use, and said property to be distributed to his children in equal shares after his decease. Thereafter should his habits and business qualifications justify my executors in their judgments, as his trustees to do so, they may turn over to him all or part of his share of my estate, or the property in which they may have invested it. Under no circumstances whatever, nor at any time during his lifetime or afterwards, shall any part of the estate so left to him, ever go to or be possessed by the woman now, or once his wife, or any other woman he may marry."

In other parts of the will the testator nominated executors and authorized them to collect the estate, sell the real or personal property, and distribute it according to the terms of the will. There was also a provision that any of the sons or daughters according to their ages should be entitled to have the family home in Hiawatha at a moderate estimate of value for the same, to be agreed upon by the executors and the one entitled and desiring to take it, so that it may remain in the family.

This will was executed in February, 1907. The testator died December 10, 1910. At the time of his death he left surviving him his widow, seven children, and a grandson, a child of a deceased son. The widow died in May, 1913; she did not remarry. The executors named in the will took charge of the estate and collected and distributed it in accordance with the provisions of the will. The executors later qualified as trustees of Daniel Bierer, as provided in the fifth paragraph of the will, and continued in the possession of the share of the property which, had it not been for this paragraph of the will, would have passed to Daniel, until his death. Daniel Bierer died in January, 1925, and left surviving him a widow and two children by his first wife and two grandchildren, being the children of his deceased daughter, Ellen Bierer. The controversy in this case is between the widow of Daniel Bierer, on the one hand, and the children and grandchildren of Daniel Bierer, on the other. The widow claims one-half interest in the sum, about $ 12,000, in the hands of the trustees, and the children and grandchildren claim it all. The trial court decided against the widow, and she has appealed.

It is argued on behalf of appellant that the fifth paragraph of the will should be disregarded, for the reason that under the third paragraph of the will, upon the death or remarriage of testator's widow, the estate is to be divided among the children of the testator share and share alike, and that the testator, having, by this provision of the will, given Daniel Bierer a share of the estate equal to his other children, it was not within the power of the testator to make...