Ciochon's Estate, Matter of

• Decision Date: 21 March 1980
• Docket Number: No. 50585,50585
• Citation: 609 P.2d 177,4 Kan.App.2d 448
• Parties: In the Matter of the ESTATE OF Elizabeth A. CIOCHON, Deceased.
• Court: Kansas Court of Appeals

Page 177

609 P.2d 177

4 Kan.App.2d 448

In the Matter of the ESTATE OF Elizabeth A. CIOCHON, Deceased.

No. 50585.

Court of Appeals of Kansas.

March 21, 1980.

Review Denied May 19, 1980.

Syllabus by the Court

1. Rules to be used in determining whether a will is contractual in nature are summarized and applied.

2. When the determinative evidence from which the trial court's findings were made is documentary in form, an appellate court must decide for itself what the facts establish.

3. In construing a will, the primary consideration is to determine the intent of the testator or, when the will is joint, mutual and contractual, the intent of the testators. To do so, the court must put itself as nearly as possible in the situation of the testator at the time he made his will, and from a consideration of that situation and all of the language used in the entire will, the court must determine the intention the testator had.

4. One joint tenant cannot, without the consent of the other, dispose of his interest in the joint property by will and thereby defeat the right of survivorship. However, a joint tenancy may be terminated by mutual agreement of the joint tenants if it appears from the contract that the parties clearly intended to do so 5. A court will not construe a joint, mutual and contractual will to conclusively show that it was the intent of the testators to sever a joint tenancy when that intent is not clearly set forth and the true intent of the testators can be carried out just as effectively without severing the joint tenancy.

6. In an appeal from a district court order construing a will, it is held : (1) the trial court did not err in determining the will to be joint, mutual and contractual; (2) the trial court erred in determining the language of the joint, mutual and contractual will severed the joint tenancies; and (3) the trial court erred in determining that the surviving joint tenant does not possess the power to sell or otherwise convey the property held in joint tenancy. The jointly owned property is, however, subject to the contract that the assets remaining upon his death be devised and bequeathed to the testators' issue as provided in the joint, mutual and contractual will.

John W. Brand, Jr. of Stevens, Brand, Lungstrum, Golden & Winter, Lawrence, for appellant Ralph H. Ciochon.

Fred S. Jackson, Topeka, for appellee Charles R. Baer.

Before PARKS, P. J., and ABBOTT and SWINEHART, JJ.

ABBOTT, Judge:

This is an appeal from a district court order construing a will to be joint, mutual and contractual. The court found that the will severed the joint tenancy feature of property that had been owned jointly by appellant, Ralph Ciochon, and his deceased wife, Elizabeth Ciochon, prior to its execution, and that upon the death of Elizabeth Ciochon all property passed to the remaindermen named in the will because Ralph Ciochon failed to timely offer the will for probate pursuant to K.S.A. 59-618, thereby forfeiting any interest which he otherwise would have been entitled to take under the will.

At the time of Elizabeth Ciochon's death, all of the real and personal property owned by her other than her personal effects was held in joint tenancy with her husband, Ralph Ciochon. Although the record is not clear whether Ralph Ciochon owned any real or personal property in his own name, it appears that he did not. Both Ralph and Elizabeth had been previously married. Ralph has an adult son, Carroll R. Ciochon, by his previous marriage. Elizabeth had two children by her previous marriage the appellee, Charles R. Baer, and his sister, Betty M. Hepp. Carroll R. Ciochon and Betty M. Hepp are not parties to this appeal. The three children are the named remaindermen who take under the will in equal shares, share and share alike.

The assets of the estate consisted of a 1965 Ford pickup (which has since been sold for $500), a 1972 Chevrolet Impala valued at $1,500, a checking account of $1,282.75, a savings account of $11,282.75, and the couple's 80-acre farm home valued at $64,000. The farm was acquired in 1965 for $18,000, with Ralph and Elizabeth each contributing approximately one-half of the purchase price. Elizabeth did not work outside the home at any time during the marriage and, other than an inheritance of some undisclosed amount to Elizabeth and another inheritance to Ralph, the sole source of family income was Ralph's salary and, later, their social security checks.

Approximately $8,000 to $10,000 out of Ralph's salary was invested in farm improvements. The savings account originally was Ralph's money. It had a balance of $5,543.23 at the time the will was drawn. The record reflects that the remainder came from Ralph's salary and, presumably, accrued interest. The checking account was from Ralph's salary and social security checks.

On September 23, 1969, Ralph and Elizabeth contacted a lawyer to have a will drawn, and one was drawn and executed that same day. None of the attorneys presently involved with this case had anything to do with drawing the will, which provided in pertinent part:

"JOINT AND MUTUAL WILL OF HUSBAND AND WIFE

"Know all men by these presents, that I, Ralph H. Ciochon, and I, Elizabeth A. Ciochon, of Route 1, Tonganoxie, Leavenworth County, Kansas, and each of us and both of us being of sound and disposing mind and memory and not under any restraint and realizing the uncertainty of life and the certainty of death, and wishing to direct how our property should be distributed on our respective deaths, do hereby make, publish and declare this to be our Last Will and Testament and hereby revoking any and all former wills by us or either of us heretofore made.

"1. It is the will and desire of each of us and both of us that our just debts and funeral expenses be paid as a charge against our respective estates.

"2. In consideration of us both signing this will, we both agree that the said will shall be binding upon both of us and our estates and not revokable (sic ) without consent of both parties hereto, and it is the will and desire of each of us and the mutual will and desire of both of us, that on the death of either of us, the survivor shall be given, devised and bequeathed all of the property owned by us, and upon the death of said survivor, the remainder shall be given, devised and bequeathed to our three children, or their issue, namely: Carroll R. Ciochon of Kansas City, Kansas; Charles R. Baer of Route 7, Topeka, Kansas; and Betty M. Hepp of Topeka, Kansas, in equal shares, share and share alike.

"3. It is the will and desire of each of us and the mutual will and desire of both of us that the survivor of us be executor or executrix of this, our Last Will and Testament, and direct that the Court admitting this will to probate, grant letters testamentary to said survivor without bond . . . ."

Elizabeth Ciochon died on September 30, 1976. The record shows that Ralph Ciochon had possession of the original will at the time of her death. Betty M. Hepp had a copy of the will, and a copy of it had been shown to Charles R. Baer at some unspecified time prior to his mother's death, although he denied ever having a copy.

Ralph, without contacting a lawyer or the court, decided it would not be necessary to probate the will until his death and he did not offer it for probate. It was nine and one-half months after Elizabeth's death before Charles R. Baer told Ralph the will should be probated. Ralph immediately offered the will for probate and it was duly admitted without objection on August 26, 1977. Ralph was appointed and qualified as executor. On December 13, 1977, Charles R. Baer filed a petition for construction of the will and to restrain Ralph from certain acts. Highly summarized, the petition alleged that Ralph had knowingly withheld the will from probate and Baer was entitled to take under the will as an innocent beneficiary; that by his failure to file the will pursuant to K.S.A. 59-618, Ralph forfeited any interest in the estate and owed damages to the remaindermen; that the will destroyed the joint tenancy feature of both real and personal property owned by Ralph and Elizabeth, or either of them, and all property owned by them would pass under the will regardless of whether title was held individually or jointly. Further, the petitioner asked the court to determine that the will was a joint, mutual and contractual one, and to restrain Ralph both as an individual and as the executor from selling or disposing of any property, whether real or personal, owned by him individually or jointly with his deceased wife.

A hearing was conducted and the trial judge held the will to be a joint, mutual and contractual one that had the effect of severing the joint tenancy, and consequently the jointly held property would pass under the terms of the testamentary agreement. He further held that by reason of Ralph's failure to offer the will for probate within the statutory time, he is barred from all rights under the will. The trial judge did not determine Ralph's rights, if any, under K.S.A. 59-403, as no application for allowances was on file. In addition, the trial court held that even if Ralph would take under the will, he would have no power to dispose of the property passing to him under the will of Elizabeth A. Ciochon.

Ralph appeals and raises three arguments:

1. The will did not terminate the joint tenancy.

2. He is not barred by virtue of K.S.A. 59-618 from taking under the will.

3. The will does not prevent him from disposing of any property passing to him by virtue of Elizabeth's will.

Appellant first contends the will is not a joint, mutual and contractual one. The trial court found the will to be joint, mutual and contractual, and our examination of the record causes us to conclude that the trial court did not err in its finding. Whether a will is contractual in nature is a fact question. Our scope of review, however, is not limited to determining...