Cramer v. Browne

• Decision Date: 27 January 1945
• Docket Number: 36264.
• Citation: 159 Kan. 423,155 P.2d 468
• Parties: CRAMER et al. v. BROWNE et al.
• Court: Kansas Supreme Court

155 P.2d 468

159 Kan. 423

CRAMER et al. v. BROWNE et al.

No. 36264.

Supreme Court of Kansas

January 27, 1945

Appeal from District Court, Wilson County; A. K. Stavely, Judge pro tem.

Proceeding by Leon W. Cramer and others against Elizabeth Smith Browne and others for the construction of a joint will. From an adverse judgment, first named parties appeal.

Judgment affirmed.

Syllabus by the Court.

1. Where specifications of error merely raise a question of law they permit immediate appellate review without a motion for new trial.

2. When the facts were stipulated in the court below and there is no dispute regarding them, or when the appellants' contention is that notwithstanding the evidence and conceding all of it to be true the judgment is erroneous, no motion for a new trial is required.

3. Following Selzer v. Selzer, 146 Kan. 273, 69 P.2d 708, 116 A.L.R. 1, and other cases cited in this opinion, it is held, the intention of the testator as derived from the terms and provisions of a will as a whole control its interpretation.

4. The law favors the early vesting of testamentary gifts, and this court is committed to the rule that unless a contrary intention clearly appears an interest will be regarded as vested rather than contingent.

5. A provision in a joint will that, 'if, at the time of the distribution of our property under this, our last will and testament, any of the persons named, in subdivisions '2' and '3' of paragraph 'Third' above, shall have died and have no children living, then such portion bequeathed to said persons, so deceased, shall be placed into the common fund and divided equally among surviving persons', when read in conjunction with other of such instrument, does not indicate that the intention meant to be expressed by the testators was that the time of vesting of interest in the legacies therein created was to be suspended until after the probate court admitting the will to probate had made its final order of accounting settlement and distribution.

6. The joint will set forth in the opinion construed and held, that under its terms and provisions a legatee named therein, who died without having living children subsequent to the death of the surviving testator but prior to the closing of the latter's estate, had acquired a vested interest in the legacies bequeathed to him in that instrument.

Douglas Hudson, of Fort Scott (Howard Hudson, of Fort Scott, and Bernard L. Sheridan, of Paola, on the briefs), for appellants.

Walter McVey, of Independence, and J. L. Stryker, of Fredonia (W. G Fink, of Fredonia, and O. L. O'Brien, of Independence, on the briefs) for appellees.

PARKER Justice.

This controversy requires the construing of the terms of a joint will, the sole question at issue being whether by the use of language to be found therein it was intended specific bequests to a legatee vested on the death of the surviving testator or the time of their vesting was suspended until such time as the court admitting the will to probate made its order of final settlement, accounting and distribution.

George R. Barrett and Kate C. Barrett, husband and wife, executed a joint will on July 23, 1932. The wife died in 1933. Her will was probated and her estate closed without litigation.

Mr Barrett died on January 26, 1943. Thereupon, the joint will was admitted to probate as his last will and testament. Thereafter C. A. McCullough was appointed as administrator c.t.a.

Material portions of the will read as follows:

'I, George R. Barrett, and I, Kate C. Barrett, 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 shall be distributed on our death, do hereby make, publish and declare this to be our last will and testament and hereby revoke any and all former wills by us made.

'First: It is the will and desire of each of us and of both of us, that our just debts and funeral expenses be paid.

'Second: 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, all the property of the deceased party, whether real, personal or mixed, shall descend to, and become the sole and separate property of the surviving party, for his or her use and benefit for and during his or her lifetime, and that said survivor shall have full power and right to convey and transfer said property.

'Third: 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 which ever one of us that survives the other, that all of our property of whatsoever kind or nature, after the payment of debts and funeral expenses, shall be distributed as follows, to-wit:

'1. One Thousand ($1,000.00) Dollars shall be first paid to the board of trustees of the First Presbyterian Church of Neodesha, Kansas, to be used by said board for any need of said church other than current expenses.

'2. Ten Thousand ($10,000.00) Dollars shall next be paid to Rinker R. Barrett, son of George R. Barrett, if living; if deceased, to his children, if any.

'3. After the foregoing bequests are paid, it is the will and desire of each of us and the mutual will and desire of both of us, that the remainder of our said property shall be divided into nine (9) equal parts and distributed to the following named persons, to-wit:

'A. One part to Rinker R. Barrett, son of George R. Barrett;

'B. One part to Leon W. Cramer, son of William H. Cramer;

'C. One part to Fred Cramer, son of William H. Cramer;

'D. One part to Henry Cramer, son of Charles A. Cramer;

'E. One part to Frank Cramer, son of Charles A. Cramer;

'F. One part to Edith Cramer, daughter of Charles A. Cramer;

'G. One part to Katherins S. Griffith, daughter of Mrs. A. C. Hutchins;

'H. One part to Walter G. McCarter, son of Mrs. A. C. Hutchison;

'I. One part to be divided equally between Kyle C. Smith and Elizabeth Smith-Browne, children of Bessie McCarter-Smith;

'Fourth. It is the will and desire of each of us and the mutual will and desire of both of us, that if, at the time of the distribution of our property under this, our last will and testament, any of the persons named, in subdivisions '2' and '3' of paragraph 'Third' above, shall have died and have no children living, then such portion bequeathed to said persons, so deceased, shall be placed into the common fund and divided equally among the surviving persons named and mentioned above in subdivisions '2' and '3' of paragraph 'Third'; if any of the persons named in subdivisions '2' and '3' of paragraph 'Third' above, shall have died at said time, his or her portion shall be paid to his or her children, if there be any living at said time.

'Fifth: I, George R. Barrett, and I, Kate C. Barrett, and each of us, do hereby devise and bequeath to the other surviving, all the estate of every kind and character and wherever situate, personal, real and mixed of which the one dying first shall be seized or have an estate, claim or interest therein, and to be owned and disposed of by the survivor as he or she may desire, and that upon the death of the survivor, all the estate of the survivor not disposed of by such survivor is hereby devised and bequeathed in the manner, and according to the bequests made in paragraph 'Third' above.

'Sixth: 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.'

Rinker R. Barrett, one of the legatees mentioned in the will, died testate on November 14, 1943. He was the son of George H. Barrett, but not of Kate C. Barrett, he had never been married and he left no issue or children surviving him.

Worthy of note but unimportant for our purposes is the fact that C. A. McCullough was appointed and qualified as executor of the last will of this decedent.

On January 4, 1944, McCullough as administrator c.t.a. filed his petition for final settlement. Within a short space of time the appellants filed their answer and written defense thereto, wherein they challenged the right of the estate of Rinker R. Barrett to participate in the distribution of the estate of George R. Barrett, on the ground that since the son had died having no children living prior to the time of the distribution of the property left by his father the legacies evidenced by subdivision '2' of paragraph 'Third' and subparagraph 'a' of subdivision '3' of paragraph 'Third' of the latter's will had lapsed and were of no force and effect.

The issue thus raised was presented to the probate court which denied appellants' contention and later submitted in district court with the same result. Hence this appeal.

Appellants' first three specifications of error actually raise the one issue the trial court erred in holding that under the language to be found in the will the bequests to Rinker R. Barrett vested in him at the time of the death of the testator and did not lapse because of the fact such devisee died before the probate court had made its formal order of final settlement and distribution and determination of devisees entitled to the estate under the terms of such instrument.

Before proceeding further we pause to dispose of appellees' motion to dismiss the appeal, based on the premise appellants have no right to appellate review because no motion for new trial was filed or presented in the court below. The point has little merit. The material error assigned in the three specifications of error to which we have referred is the...