Dobrovolny's Estate, In re

Decision Date07 December 1957
Docket NumberNo. 40690,40690
Citation318 P.2d 1053,182 Kan. 138
PartiesIn the Matter of the ESTATE of Jennie DOBROVOLNY, Deceased. Anna E. SCHEIBE, Appellant, v. W. A. YOUNGQUIST, Executor; Frank D. Dobrovolny and Ivan Dobrovolny, Appellees.
CourtKansas Supreme Court

Syllabus by the Court.

1. A will construed in connection with an agreed statement of facts set forth in the opinion and held: the testatrix did not intend to devise realty, and not being otherwise disposed of by her will, it passed to her heirs at law in accordance with the laws of descent and distribution.

2. The intention of the testatrix being ascertainable, technical rules of construction, such as the presumption against partial intestacy will be disregarded.

3. The presumption against partial intestacy is neither evidence nor of evidentiary value, but its sole function is to take the place of evidence of intention; and where there is either evidence or circumstances bearing on a testator's intention to include or exclude particular property from the terms of the will, the presumption is inapplicable.

4. The provisions of a testatrix' will and the facts and circumstances surrounding its execution indicate that a residuary clause, general in form and wording, was limited to personalty by another paragraph in the will, held: the residuary clause, under such circumstances, will be regarded as a limited clause applying only to personal property.

5. The record further examined and held: the testatrix executed her will under the supposition that the three children of her predeceased husband and her would inherit equally all of their real estate thought to be disposed of by the husband's will, and under the facts and circumstances set forth in the opinion, the testatrix died intestate as to the real estate she owned, title to which vested in the appellant and the appellees in equal shares.

David Prager and Jacob A. Dickinson, Topeka, argued the cause, and William W. Dimmitt, Jr., and Sam A. Crow, Topeka, were with them on the briefs for appellant.

Rowland Edwards, Waterville, argued the cause and was on the briefs for appellees Frank Dobrovolny and Ivan Dobrovolny. C. D. Smith, Blue Rapids, was on the briefs for appellee W. A. Youngquist, Executor.

FATZER, Justice.

This appeal involves the construction of the will of Jennie Dobrovolny and arises on the executor's petition for final settlement. The question presented is whether Jennie's undivided one-half interest in an 80-acre farm passed to the residuary devisee under her will, or whether there was a partial intestacy causing the real estate to descend to her heirs at law pursuant to the laws of descent and distribution.

The facts have been agreed upon and are summarized as follows: The decedent, Jennie Dobrovolny, and Frank Dobrovolny were married and lived together for many years in Marshall County, Kansas; they had three children: two sons, Frank, Jr. and Ivan, the appellees, and a daughter, Anna E. Scheibe, the appellant. During their marriage Jennie and Frank acquired three tracts of land in Marshall County at different times: the first tract consisted of the northeast quarter of section 9; the second tract consisted of the southeast quarter of section 9, and the third tract consisted of the north half of the southwest quarter of section 15, all in township 5, range 6, east of the 6th P.M.

The first and second tracts were acquired in the name of Frank Dobrovolny; the third tract was acquired in the name of Jennie and Frank Dobrovolny as tenants in common, each owning an undivided one-half interest.

On September 8, 1951, Frank Dobrovolny executed his will which gave all his personal property to his wife absolutely. The real estate was disposed of in Item Three of his will, which reads:

'I give and devise to my said wife, Jennie Dobrovolny, an estate for her natural life in and to all of my real property and interests therein of whatever description and wherever situated, and I give and devise the remainder in fee simple to my children Frank Dobrovolny, Jr., Ivan Dobrovolny and Anna E. Scheibe, in equal shares.'

Jennie was named executrix and upon her husband's death, qualified and acted as such. When Jennie inventoried Frank's estate, the whole of the north half of the southwest quarter of section 15 was included in the inventory as being owned by her husband, notwithstanding her ownership of an undivided one-half interest in that 80-acre farm. In her petition for final settlement, Jennie alleged that Frank owned the whole of the north half of the southwest quarter of section 15, and in the order of final settlement the probate court assigned the whole of that tract together with the other two quarter sections to Jennie for her life, and assigned the remainder in fee to the three children in equal shares. The record does not indicate that Jennie consented in writing to Frank's will, but it was stated by counsel for appellant and concurred in by counsel for appellees when this case was orally argued, that Jennie elected to take under Frank's will.

On July 23, 1953, Jennie executed her will, which, following her death on August 10, 1955, was admitted to probate on September 26, 1955. This will, omitting the signatures and the attestation clause, reads as follows:

'Know All Men by These Presents, and all whom these presents may concern, be it known that I, Jennie Dobrovolny, of the County of Marshall and State of Kansas, being of mature age and sound mind, and realizing the uncertainty of life and the certainty of death, and being desirous of making full and complete provision for the final settlement and disposition of all of my wordly goods and possessions after my dissolution, do hereby make and declare this my last will and testament.

'It is my will that upon my decease all of my just debts and funeral expenses be first paid out of any estate of which I shall die possessed.

'Second: I give and bequeath to my son Ivan Dobrovolny the sum of Five Dollars.

'Third: I give and bequeath to my son Frank Dobrovolny the sum of Five Dollars.

'Fourth: I give and bequeath the sum of Two Hundred Dollars to the officers of the Cottage Hill Cemetery Association where the remains of my late husband are interred, to be expended by them in placing flowers from year to year on Decoration Day upon our graves.

'Fifth: All the remainder and residue of my property of every kind and character I give, devise and bequeath to my daughter, Anna Scheibe.

'Sixth: I make no disposition of real estate as that is devised by the will of my late husband Frank Dobrovolny.

'Seventh: I nominate and appoint my friend Mr. W. A. Youngquist of Blue Rapids, Kansas, to be the executor of this my last will and testament.

'In Witness Whereof I have to this my last will and testament subscribed my name at Blue Rapids, Kansas, this 23rd day of July, 1953.'

No later will was filed and no appeal was taken from the order admitting the will to probate and the time for taking an appeal has expired. Following the admission of Jennie's will to probate, the three tracts of land described above were the subject matter of a partition action in the district court of Marshall County, and were sold pursuant to an order of that court February 10, 1956. Jennie's undivided one-half interest in the third tract brought $5,246.27, which sum was paid to the executor of her estate and is the subject matter of this controversy.

In its memorandum opinion the district court concluded Jennie died intestate with respect to her undivided interest in the north one-half of the southwest quarter of section 15; that she did not intend the word 'property' as used in paragraph 5--the residuary clause, to include the real estate in question since she did not know she owned any interest in it, and did not intend to devise it to appellant in view of her statement in paragraph 6, 'I make no disposition of real estate * * *,' and that upon her death, title passed to her heirs at law, the appellant and the appellees, in equal shares.

Appellant contends that the residuary clause covers property of 'every kind and character' owned by Jennie at her death, including her undivided one-half interest in the 80-acre farm above referred to, and urges that paragraph 6 of her will is not a limitation upon paragraph 5. The appellees contend paragraph 6 requires that Jennie's undivided one-half interest in the real estate be excluded from the operation of her will resulting in her partial intestacy as to that interest, and that title passed to the appellant and the appellees as her heirs at law in equal shares.

Obviously, Jennie's will, in view of the contentions of the parties, requires construction to ascertain her intent when it was executed. The rule firmly established in this jurisdiction, to which all other rules are subordinate, is that the intention of the testator must be...

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