Bradley v. Jackson's Estate, 48735

• Decision Date: 09 December 1977
• Docket Number: No. 48735,48735
• Citation: 1 Kan.App.2d 695,573 P.2d 628
• Parties: Helen Zoe BRADLEY, Appellee, v. The ESTATE of Nita JACKSON, Deceased, Earl Sapp, Executor, Appellant.
• Court: Kansas Court of Appeals

Page 628

573 P.2d 628

1 Kan.App.2d 695

Helen Zoe BRADLEY, Appellee, v. The ESTATE of Nita JACKSON, Deceased, Earl Sapp, Executor, Appellant.

No. 48735.

Court of Appeals of Kansas.

Dec. 9, 1977.

Syllabus by the Court

In an action for the construction of a will, the instrument is examined and it is held : A bequest of the residue of the estate to an unrelated, named beneficiary and to "my lawful heirs" passes one-half of the residue to the named beneficiary and the remaining one-half to the testatrix's lawful heirs pursuant to the laws of descent and distribution per stirpes where no contrary intention is shown.

Terry E. Relihan, Smith Center, for appellant.

Joseph S. Davis, Jr., of Breyfogle, Gardner, Davis & Kreamer, Olathe, for appellee.

Before HARMAN, C. J., and ABBOTT and SPENCER, JJ.

ABBOTT, Judge.

This appeal involves a construction of the residuary clause of the last will and testament of Nita Jackson, deceased. The residuary clause of decedent's will reads: "All the rest and residue of my estate I give, devise and bequeath unto Mattie Grubb of Esbone, Kansas, and to my lawful heirs."

The trial court concluded the residuary clause passed one-half of the residue of the estate of Nita Jackson to Mattie Grubb and the remaining one-half to the testatrix's lawful heirs per stirpes. The executor argues that the testatrix intended a gift to a class composed of Mattie Grubb and the heirs of the testatrix and that a per capita distribution was intended.

If the decision of the trial court is affirmed, Mattie Grubb will receive one-half of the $136,468.29 available for distribution under the residuary clause and the appellee, Helen Zoe Bradley, will take $34,117.07. If the appellant succeeds, Mattie Grubb's distributive share will be $6,498.49 and the appellee, Helen Zoe Bradley, will likewise take $6,498.49 in the per capita distribution instead of $34,117.07.

The lawful heirs of Nita Jackson, deceased, consist of the children and grandchildren of Nita Jackson's uncles. Helen Zoe Bradley is the sole surviving heir of a brother of Nita Jackson's father. The remaining nineteen heirs are the surviving heirs of two brothers of Nita Jackson's mother who would receive shares ranging from less than $5,000 to less than $2,000 per person under the trial court's judgment.

By agreement of the parties, the case was submitted to the trial court without any evidence being offered. This court's scope of review is broad. Where the only evidence before the trial court was documentary in nature, this court can interpret the document as well as the trial court. (Wallace v. Magie, 214 Kan. 481, 522 P.2d 989; Keeler Co. v. Atchison, T. & S. F. Rly. Co., 187 Kan. 125, 354 P.2d 368.)

The first task of this court in interpreting a will is to ascertain if there is an ambiguity or conflict requiring the use of the rules of judicial construction. (In re Estate of Graves, 203 Kan. 762, 457 P.2d 71.) The intention of the testator is the controlling factor in interpreting testamentary provisions. (In re Estate of Hannah, 215 Kan. 892, 529 P.2d 154.)

The parties agree that the will is not ambiguous. As a result, no attempt was made to introduce extrinsic evidence to show the testatrix's intent. The trial court found that the will was neither ambiguous nor conflicting. We are thus called upon to determine the intention of the testatrix in interpreting the residuary clause of the will.

A bequest or devise "to my lawful heirs" has a well-defined meaning in Kansas. In Jackson v. Lee, 193 Kan. 40, 392 P.2d 92, it was determined the word "heirs" has a commonly understood meaning in this state. An heir is commonly understood to be a person who takes under the Kansas statutes on intestate succession. Where there are no words in the will to qualify the commonly understood meaning, it will be conclusively presumed that the testator intended the word to convey its commonly understood meaning.

As pointed out in Campbell v. McBurney, 201 Kan. 26, 31, 439 P.2d 133, the use of the phrase "legal heirs" is an even stronger indication than the use of the word "heirs" that the testator intended the persons entitled to take to do so in the portions designated by the statutes of intestate succession. In Cambpell, it was determined that in the absence of language indicating an intention that the bequest or devise be per capita, the distribution will be per stirpes according to the law of descent and distribution.

The testatrix is presumed to have known the law at the time she made her will (In re Estate of Ricklefs, 211 Kan. 713, 508 P.2d 866). She therefore is presumed to have known that a per stirpes distribution would be made to "my lawful heirs" under the law of descent and distribution and that a per stirpes distribution would not be possible...