Cline's Estate, In re

• Decision Date: 27 January 1951
• Docket Number: No. 38131,38131
• Citation: 227 P.2d 157,170 Kan. 496
• Parties: In re CLINE'S ESTATE. WABER v. CLINE et al.
• Court: Kansas Supreme Court

Page 157

227 P.2d 157

170 Kan. 496

In re CLINE'S ESTATE WABER v. CLINE et al.

No. 38131.

Supreme Court of Kansas.

Jan. 27, 1951.

Syllabus by the Court

1. The primary function of courts in the interpretation of wills is to ascertain the testator's intent. It must be gathered, if possible, from the four corners of the will and nothing between them may be ignored. When ascertained the intent will be executed unless contrary to law or public policy.

2. Excision of words, phrases or sentences of a will is a 'desperate remedy'. It is indulged in only as a last resort when all efforts to reconcile inconsistency by construction have failed. Where no inconsistency exists there is no occasion for excision or reason for failure to consider every part of a will.

3. Words or provisions of a will are never to be rejected as meaningless if on any reasonable basis they may be made consistent and significant. Where a testator's intent is involved this rule is important even as applied to a direction of a testator that his just debts be first paid although such payment is required by law.

4. A will speaks from and takes effect on the date of the testator's death.

5. Under the provisions of G.S.1947 Supp. 59-614, which provides that, 'Every devise of real estate shall pass all the estate of the testator therein, unless it clearly appears by the will that he intended a less estate to pass', a devisee of land acquires all rights in and to gravel which at the testator's death is an integral part of the land.

6. The record in an action tried on stipulated facts, set forth in the opinion, examined, considered, and held, the trial court did not err: (1) In exonerating land devised to one of the devisees from a mortgage encumbrance and in allowing the mortgage indebtedness as a demand against decedent's estate, under the provisions of G.S.1947 Supp. 59-2237, 59-1303 and 59-1304; (2) in ordering a sale of all lands, under terms of the judgment set forth in the opinion, although a sale of all lands was not necessary to pay debts and costs of administration; and (3) in directing the executor to pay to a devisee of land money collected for the sale of gravel mined and removed therefrom, after testator's death, by a lessee pursuant to a lease made by the testator.

Stanley E. Toland, of Iola, on the briefs, for the appellants.

G. E. Pees, of Iola, on the briefs, for the appellee.

WEDELL, Justice.

This appeal involves (1) the right of a daughter of her deceased father, J. R. Cline, to have a part of land devised to her exonerated from a mortgage and to have the amount thereof allowed as a claim against decedent's estate; and (2) her right to royalties paid to the executor for gravel taken from such land during the administration of decedent's estate, under a lease made by the testator.

The daughter, Anna Waber, filed an application in the probate court to obtain orders in her favor on the two matters above stated. The only other heirs, two devisees, Henry Alfred Cline, a son, and Sarah Elizabeth Hodges, a daughter, sometimes known as Sadie M. Hodges, opposed the application.

The will, omitting immaterial parts thereof, reads:

'Item one. It is my will that all my just debts be first paid.

* * *

* * *

'Item three. I give, devise and bequeath my real estate as follows:

'1. [Description of 410 acres of land], to my son, Henry Alfred Cline and to my daughter, Sadie M. Hodges.

'2. [Description of 200 acres of land], to my daughter, Anna Waber.

'3. My home, 802 North Jefferson, Iola, Kansas, including the furnishings to Minnie Mays and J. W. Mays.

'4. All other property to be divided equally among my children.'

The application of Anna Waber set forth item one and paragraph 2 of item three of the will.

The application, in substance, further alleged:

Decedent had executed a first mortgage to the Federal Land Bank of Wichita on which the unpaid balance was approximately $1,200; the mortgagee would not file a claim against decedent's estate for the debt; the debt was secured by the legacy to petitioner and the executor should be required to pay it from funds of the estate; gravel had been removed, since her father's death, from the land devised to her for which the executor had received payment and she demanded the sums so paid to him.

The answer of the two other devisees is, in substance, contained in their various contentions on appeal to be stated presently.

Property described in paragraph 3 of item three was conveyed by decedent and is not involved. The probate court sustained the application of the petitioner, Anna Waber, in both respects, ordered the executor to pay the mortgage indebtedness and to file a release of the mortgage. The answering devisees appealed to the district court. The appeal was submitted on an agreed statement of facts as follows:

'1. That the mortgage on a part of the lands devised to Anna Waber was made by the testator, J. R. Cline, to the Federal Land Bank of Wichita, Wichita, Kansas, and that the unpaid balance thereon is $1044.65 with interest at 4% per annum from Dec. 1, 1949. That the Federal Land Bank of Wichita, Wichita, Kansas, has filed no claim or demand against the estate of the decedent on said indebtedness.

'2. That a sale of real estate of the decedent is necessary to procure funds to pay the balance due on the other claims allowed against the estate of the decedent, and the costs of administration, and that there will be no personal property in the estate of the decedent out of which said indebtedness could be paid, and that if the Court should order payment of said indebtedness, a sale of real estate of the estate of the decedent would be necessary to procure funds to pay the same. That the only real estate belonging to the estate of the decedent is the real estate described in 'Item Three' of the decedent's will devised to the appellants, Henry Alfred Cline and Sadie M. Hodges and the appellee, Anna Waber. That the home of the decedent in Iola, Kansas, was conveyed by the decedent by deed prior to his death.

'3. That after the death of the decedent, Allen County, as lessee under the lease made by the decedent, mined and removed gravel from a portion of the land devised to Anna Waber and paid to the executor the royalty thereon in the sum of $534.83, which money is in the hands of the executor.

'4. That the probate Court file in the estate of J. R. Cline, deceased, and the transcript of the proceedings involved in this appeal shall be considered in evidence without further proof thereof.'

The district court likewise allowed the application of Anna Waber. The journal entry of judgment contains this finding:

'The court further finds that there is insufficient funds in the hands of the executor with which to pay the debts and costs of administration of said estate; and that the only property of said estate out of which such fund can be realized by the executor is the lands devised to the parties in this suit. The court finds that all the lands should be sold, and the debts and costs paid, and the balance divided among the legatees in proportion to the appraised value of said lands as shown from the inventory of said estate; provided, that if any legatee elects not to have the land devised to him, sold, such legatee may advance to the executor his part of the debts and costs, apportioned upon the basis of the appraised value as shown by said inventory.'

Judgment was rendered accordingly.

The land devised to Anna Waber had been appraised at $6,000 and that devised to the two other devisees at $30,000. The latter have appealed.

Appellants argue a demand for the mortgage debt was not exhibited by the owner thereof, as required by G.S.1947 Supp. 59-2237 and should not have been allowed. They also rely on G.S.1947 Supp. 59-1303, which reads: 'When a claimant holds any security for his demand, it may be allowed, conditioned upon the claimant surrendering the security or upon the claimant exhausting the security; it shall be allowed for the full amount found to be due if the security has been surrendered, or for any remaining amount found to be due if the security has been exhausted.' and on G.S.1947 Supp. 59-1304, which provides: 'When any assets of the estate are encumbered by mortgage, pledge, or otherwise, the executor or administrator may pay such encumbrance or any part thereof, whether or not the holder of the encumbrance has exhibited his demand, if it appears to be for the best interests of the estate and if the court shall have so ordered. No such payment shall increase the share of the devisee, legatee, or heir entitled to receive such encumbered assets, unless otherwise provided in the will.'

In considering the order for the payment of the encumbrance it is apparent these various statutory provisions must be considered together. Such consideration makes it clear it was unnecessary this particular demand should be exhibited in the manner ordinarily required by G.S.1947 Supp. 59-2237 pertaining to exhibition of demands by petition of the owner.

Appellants also argue the mortgagee had not surrendered the security. That is true but the secured demand was allowed by the probate court with directions to the executor to obtain and file a release of the security.

Appellants further contend an encumbrance cannot be paid unless such payment appears to be to the best interests of the estate and unless the court shall have so ordered and that such an order does not appear. The parties stipulated the funds in the hands of the executor were insufficient to pay the debts and costs of administration and that the only way such debts and costs could be paid was by a sale of some land devised to the parties to this action. The will directed the testator's debts should be first paid. The court had no alternative concerning the sale of land to obtain funds for that purpose. Of course, it was to the best interest of the estate, and to all the parties, to pay the mortgage debt...