Chronister's Estate, In re

• Decision Date: 17 May 1969
• Docket Number: No. 45322,45322
• Citation: 203 Kan. 366,454 P.2d 438
• Parties: In the Matter of the ESTATE of Mabel Belle CHRONISTER, a/k/a Mabel Belle LaForce Chronister, Deceased. L. K. MARSHALL, Executor et al., Appellees, v. Edith Byrd KESSINGER, Lola Cervera and Guy Mathews, Appellants.
• Court: Kansas Supreme Court

Page 438

454 P.2d 438

203 Kan. 366

In the Matter of the ESTATE of Mabel Belle CHRONISTER, a/k/a

Mabel Belle LaForce Chronister, Deceased.

L. K. MARSHALL, Executor et al., Appellees, v. Edith Byrd KESSINGER, Lola Cervera and Guy Mathews, Appellants.

No. 45322.

Supreme Court of Kansas.

May 17, 1969.

Rehearing Denied June 11, 1969.

Syllabus by the Court

1. Whether a will is contractual in character involves a question of fact, the determination of which must be established by competent evidence.

2. The fact that a will is joint as to its execution does not establish, in and of itself, that it is the product of a pre-existing agreement, but a will jointly made together with its specific terms and provisions may be sufficient as circumstantial evidence to prove from its face a contractual character.

3. Where a joint will shows on its face from the terms and provisions contained therein that it is contractual in nature, extrinsic evidence is not admissible to prove otherwise.

4. Where from the language used in a joint will there is ambiguity as to whether or not it is based on an antecedent contract, extrinsic evidence is admissible to establish either the existence or nonexistence of a contract.

5. The critical test in determining whether a will is ambiguous, is whether or not the intention of the testator or testators as the case may be, can be gathered from the four corners of the will itself; if the intent can be so deduced, ambiguity does not exist-otherwise it does.

6. In the construction of a will, it is the intention of the testator which must govern as the decisive factor.

7. The record is examined in an action in which the construction of a joint will is involved, and for reasons appearing in the opinion it is held (1) the trial court did not err in finding that the will was contractual in character, and (2) the order of final settlement in the estate of the testator first to die did not constitute an adjudication that the will was not contractual.

Charles E. Bogan, Abilene, argued the cause, and James G. Winn, Abilene, was with him on the brief for appellee, The First Nat. Bank of Winfield and Paul Q. Chronister, and James P. Mize, Salina, was on the brief for appellee, L. K. Marshall, Executor.

E. B. Skinner, Junction City, argued the cause and was on the brief for appellant, Edith Byrd Kessinger, and Charles S. Scott, Topeka, was on the brief for appellants, Lola Cervera and Guy D. Mathews.

FONTRON, Justice.

This is an appeal from the judgment of the district court of Dickinson County, Kansas, finding the joint will of Herbert Dix Chronister and his wife, Mabel Belle LaForce Chronister to be contractual. These parties will hereafter be referred to as Herbert and Mabel.

The facts are essentially undisputed. On September 4, 1951, Herbert and Mabel Chronister executed a joint will in which they bequeathed all property owned by them either jointly or severally to the survivor of them, for his or her own personal use and benefit forever, and after the death of the survivor directed their executors to distribute the remaining household furnishings and effects to five beneficiaries, and to sell the remainder of their property, both real and personal, at public or private sale, and distribute the proceeds thereof to the five named beneficiaries, who are shown by the record to be nieces and nephews of Herbert. We shall refer to the will in more detail in the progress of this opinion.

Herbert died September 16, 1951, and on Mabel's petition the joint will was admitted to probate by the Butler County Probate Court as Herbert's will. Herbert's estate was settled November 6, 1952, at which time the probate court found that Mabel was entitled to the estate during her lifetime with power of disposal, and assigned all property, real and personal, to Mabel to be 'held and used or disposed of during her life time, and any estate remaining at the time of her death shall upon proper proceedings be assigned to (the five beneficiaries).'

On August 24, 1965, Mabel executed a second will after having first consulted with John Lehman, an Abilene attorney. In this will Mabel bequeathed 562 shares of Colgate-Palmolive Company stock valued at some $13,000 to her sister, Edith Kessinger, and her children, share and share alike, and devised and bequeathed the rest and residue of her estate to the same nieces and nephews of Herbert named in the joint, or first, will. Mabel died August 22, 1966, and her will was offered for probate in the Dickinson County Probate Court two days later. As a defense to the admission of Mabel's will to probate, the executors named in the joint will filed an answer in which they prayed that Herbert and Mabel's joint will be allowed as Mabel's last will and testament, and that it be enforced against her estate as a contract.

The cause was thereafter transferred to the district court where, on motion of the executor of Mabel's will, the district court entered summary judgment admitting her will to probate but reserving jurisdiction to determine whether the joint will of Herbert and Mabel was contractual. At a subsequent hearing on the contractual issue alone, the trial court found the joint will to be contractual on its face and entered judgment accordingly. Mabel's sister, Mrs. Kessinger, and her two children have appealed from this judgment.

By way of preliminary comment, we pause here to reiterate what was said in Menke v. Duwe et al., 117 Kan. 207, 216, 230 P. 1065, that a single instrument may be both a will contractual in character, and a contract testamentary in nature; as a will it is revocable but as a contract it is enforceable; and although a contractual will revoked by execution of a second will, cannot be probated, it may nonetheless be enforced as a contract against the estate of the testator breaching it.

The respective positions of the parties to this appeal may be summarized, essentially, in this way: the appellees, who will be referred to herein collectively as the Chronisters, say the will is not ambiguous, that it is contractual on its face and that extrinsic evidence is not admissible to refute its contractual character; while the appellants, to whom we shall hereafter refer as the Kessingers, contend the will is ambiguous, that it does not show up on its face that it is based on contract, and that extrinsic evidence is admissible to establish there was no agreement or contract.

There has been no dearth of litigation in this state over wills which were claimed to be contractual. At first glance, some of our pronouncements on the subject may appear to follow somewhat divergent paths, but more assiduous study should reveal to a discerning eye several guide posts placed along the route to direct a wary traveler to and along the true highway. While we do not propose to discuss each of our former decisions relating to contractual wills, we think several must be noted as having special significance in the emergence of principles which are controlling in this area.

It may first be relevant to point out that disputes may arise as to whether or not a will is contractual, not only when the will is joint in form and contained in a single common instrument, but also when it is drawn in the form of a separate document. No matter which class it comes under, a will may be claimed to be the product of a pre-existing agreement. (See Frontier Lodge No. 104, etc. v. Wilson, 139 Kan. 75, 30 P.2d 307; In re Estate of Pennington, 158 Kan. 495, 148 P.2d 516; Eikmeier v. Eikmeier, 174 Kan. 71, 254 P.2d 236.) Unless otherwise noted, cases cited throughout this opinion fall within the first category.

In a comparatively early case, Lewis v. Lewis, 104 Kan. 269, 178 P. 421, a will which had been executed jointly by a husband and wife was held by this court to be contractual on its face. In response to a contention that there was no evidence to establish that the testators had entered into any contract to make a will, the court replied:

'* * * How could such a will be voluntarily executed if there was no agreement or understanding that it would be made? The will itself, its terms, and its execution are evidence that such a contract was made. * * *' (p. 273, 178 P. p. 423.)

Since the Lewis case was decided, this court, on a number of occasions, has construed a will which was jointly executed as establishing, per se, a contractual character. In a few instances, specific reference to an existing agreement was set out in the will itself. (Warwick v. Zimmerman, 126 Kan. 619, 270 P. 612; Berry v. Berry's Estate, 168 Kan. 253, 212 P.2d 283; In re Estate of Buckner, 186 Kan. 176, 348 P.2d 818.) In other cases, where specific reference to a prior contract was lacking, wills have been construed as contractual on the basis of specific provisions or terms, one of the common denominators usually being a provision for the disposition of property after the death of the survivor. See, In re Estate of Adkins, 161 Kan. 239, 167 P.2d 618; Beall v. Hardie, 177 Kan. 353, 279 P.2d 276; In re Estate of Weidman, 181 Kan. 718, 314 P.2d 327.) Such a provision was found among the provisions of the will in the Lewis case.

Three opinion of recent origin deserve particular mention, for within their boundaries are mirrored the essence of our decisions in the domain of joint contractual wills. In the case of In re Estate of Miller, 186 Kan. 87, 348 P.2d 1033, this court, speaking through Mr. Justice Schroeder, reviewed many of our earlier decisions and said:

'The existence or nonexistence of an agreement or contract is in its very nature a fact. In the cases where wills have been held to be contractual, it will be found that either the wills expressly recited that they were contractual, or the fact that they were contractual was established by evidence. In re Estate of Pennington, 158 Kan. 495, 148 P.2d 516; and Frontier Lodge No. 104 v. Wilson, 139 Kan. 75, 30 P.2d 307. * * * (p. 94, 348 P.2d p. 1039.)

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