Corbett v. Skaggs

• Decision Date: 10 June 1922
• Docket Number: 23,700
• Citation: 111 Kan. 380,207 P. 819
• Parties: RACHEL L. CORBETT et al., Appellees and Cross-appellants, v. JOHN H. SKAGGS, as Executor, etc., et al., Cross-appellees (WILLIAM R. KINCAID et al., Appellants and Cross-appellees.)
• Court: Kansas Supreme Court

207 P. 819

111 Kan. 380

RACHEL L. CORBETT et al., Appellees and Cross-appellants, v. JOHN H. SKAGGS, as Executor, etc., et al., Cross-appellees

(WILLIAM R. KINCAID et al., Appellants and Cross-appellees.)

No. 23,700

Supreme Court of Kansas

June 10, 1922

Decided January, 1922.

Appeal from Barber district court; GEORGE L. HAY, judge.

Judgment modified.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONSTRUCTION OF WILL--Bequests to Groups of Individuals--Death of Individual Members of Group Before Death of Testator--Descents and Distributions. Although each of three subdivisions of a will began with the statement that the testator gave to the children of a deceased brother or sister the sum of $ 25,000, to be divided as specified, and this fact would indicate a purpose to treat the children of each group as a class rather than as individuals, it is held that by reason of other provisions of the will, and especially because of the name of each beneficiary and the amount allotted to him being stated, such amounts not being uniform among the members of any of the groups, the legacies are to be regarded as made to the beneficiaries as individuals and not as classes, and the death of one of them without issue before that of the testator did not cause his share to go to the other members of the group to which he belonged.

2. SAME. The share of a residuary legatee who dies (without issue) before the death of the testator goes to the surviving residuaries, in the absence of some special provision of the will showing a different purpose. The rule that such share shall be disposed of as in the case of intestacy is rejected as being in conflict with the established policy of the court to ascertain and give effect to the actual intention of the maker of the will. Even if that rule were adopted it would not be held applicable where, as in the present instance, the will expressly provides that a number of specific legatees (who would also be heirs) shall have no share in the residue of the estate.

3. SAME. The extension of the rule referred to so that it shall require lapsed specific legacies to persons who are also residuary legatees to be treated as property undisposed of by the will is likewise rejected and held not to be applicable in any event in the present case, upon the same grounds.

W. W Schwinn, E. J. Taggart, John Bradley, all of Wellington, Seward I. Field, and A. L. Orr, both of Medicine Lodge, for the cross-appellees.

J. G. Logan, of Topeka, W. S. McClintock, and A. L. Quant, both of Kansas City, Mo., and D. M. Anderson, of Donora, Pa., for the cross-appellants.

OPINION

MASON, J.:

This is an action to obtain a construction of the will of Samuel S. Kincaid. Two nieces to whom specific legacies were bequeathed, and who were also named among the seven residuary legatees, died without issue before the testator, and the questions involved are as to the proper disposition of the shares of the estate which would have gone to them if they had survived him. The trial court decided (1) that the amount of their specific legacies should be paid in equal parts to their sister and two brothers (who are the plaintiffs herein) on the theory that what they were to receive from this source was intended as a part of a gift to a class composed of the two brothers and the three sisters; and (2) that what they would have received as residuary legatees should be distributed among the other residuary legatees named in the will in the same proportion as the general residue. One other legatee died before the testator, but he was survived by four children who take his share by representation (Gen. Stat. 1915, § 11811), and for simplicity of statement the matter will be discussed as though he were still alive.

The plaintiffs, as already indicated, are the two brothers and the sister of the legatees who died. They appeal from the second part of the decision and contend that the shares these two would have received as residuary legatees (including their specific legacies if the trial court shall be held to have erred in awarding this part of the estate to the plaintiffs) should be distributed as though Samuel S. Kincaid had died intestate. The defendants are the residuary legatees other than the two who died. They appeal from the first part of the decision and contend that they are entitled to all the property that would have gone to the two legatees who died, if they had lived.

The testator left neither wife nor children. Aside from a number of minor specific legacies which do not affect the matter in controversy he left his whole estate to the three living children of a dead brother, James O. Kincaid, one of whose children also had died before the execution of the will, leaving a number of children for whom no provision was made; to the two children of his dead sister Sarah Bell; and to the five children of his dead sister, Rachel Rinehart. The provisions with reference to these nephews and nieces were contained in three subdivisions, designated as the fifth, sixth and seventh, each relating to one of the three groups and introduced by the words: "I give and bequeath to the [now living, in one instance] children of my [brother in one instance, sister in the others, the name being given in each case] twenty-five thousand dollars, to be divided among them as follows: . . ." The names of the individual beneficiaries were given and in none of the three groups were the shares, into which the $ 25,000 was divided, equal. The two subdivisions of the will which require interpretation read:

"Sixth. I give and bequeath to the children of my sister Rachel Rinehart Twenty-Five Thousand Dollars to be divided as follows:

"Benjamin K. Rinehart, of Castle Rock, Montana, is to have Twenty-Five Hundred Dollars ($ 2500) absolutely. But he is to have no share in the residue and remainder of my estate.

"Winfield Rinehart, of , Colorado, is to have Twenty-Five Hundred ($ 2500) Dollars absolutely, but he is to have no share in the residue and remainder of my estate.

"Mattie Rinehart, of Tucson, Arizona, is to have Sixty-Five Hundred Dollars ($ 6500) absolutely.

"Frances Rinehart of Tucson, Arizona, is to have Sixty-Five Hundred Dollars ($ 6500) absolutely. It is further my will that if this legatee (who is now far gone with consumption) should die before my estate is distributed, that this Sixty-Five Hundred Dollars ($ 6500) be added to the share of her sister Mattie Rinehart to compensate her for the years of nursing and care she has bestowed on her sister during her sickness.

"Rachel L. (commonly called Dolly) Corbett of , Kentucky, is to have Seven Thousand Dollars ($ 7000) absolutely, but is to have no share in the residue and remainder of my estate."

"Ninth. I give and bequeath all the rest, residue and remainder of my estate wheresoever the same may be situated to William R. Kincaid, Minnie O. Freemyer, Thomas F. Kincaid, Thomas K. Bell, Mrs. M. E. Morse, Mattie Rinehart and Frances Rinehart, the same to be divided among them in the same proportion as their former bequests bear to the whole sum bequeathed them. Sixty-Three Thousand Dollars ($ 63,000)."

1. The ordinary situation in which a legacy or devise is regarded as made to a class rather than to the individuals composing it (a consequence being that on the death of one member before the testator his share goes to the other members and not to the residuary legatees or heirs) arises where a gift is made to a group of an uncertain number, the amount each is to receive not being determined. But even if the beneficiaries are named they may be treated as a class, if an intention to that effect is otherwise shown. (40 Cyc. 1473; 28 R. C. L. 260-267.) The tests are discussed and illustrative cases collected in a note in L. R. A. 1918B, 234. The effort of the court is of course to arrive at the probable intention of the testator from a consideration of all parts of the will. Here the beneficiaries are definitely ascertained and named, so that they are to be treated as individuals unless a different purpose is affirmatively shown elsewhere in the instrument. The fact that the testator begins the subdivision relating to each group by stating that he gives twenty-five thousand dollars to the children of his dead brother or sister tends to show a collective treatment. But in our judgment this is overcome by the circumstances that the legatees are not only individually named, the amount each is to receive being stated, but are apportioned different sums, indicating a plan not to treat them equally or merely as members of a group, but in accordance with what was regarded as appropriate in the case of each one considered individually. This view we think finds further support in these additional provisions indicating a different treatment of the members of each group: In the case of the three children of James O. Kincaid two were to receive only the income of the $ 10,000 allotted to them, the principal at his death to go to their children, while the third was given $ 5,000 outright. In the case of the two children of Sarah Bell, the share of the daughter ($ 10,000) was to be invested by trustees for her benefit and if she died without issue the principal was to go to the son, to whom $ 15,000 was given outright. In the case of the five children of Rachel Rinehart three were explicitly cut off from any share in the residue and remainder of the estate, while the other two were named as residuary legatees and provision was made that if one of them died before the estate was distributed her share should go to the other, although the fact that both died before the testator deprived this provision of practical effect.

2. A lapsed legacy ordinarily falls into the residue and inures to the benefit of the residuary...