Duncan's Estate, Matter of

• Court: Kansas Court of Appeals
• Writing for the Court: Before HOLMES, Justice Presiding, MEYER, J., and HARRY G. MILLER; HARRY G. MILLER
• Citation: Duncan's Estate, Matter of, 638 P.2d 992, 7 Kan.App.2d 196 (Kan. App. 1982)
• Decision Date: 14 January 1982
• Docket Number: No. 52666,52666
• Parties: In the Matter of the ESTATE OF Edna E. DUNCAN, Deceased.

Page 992

638 P.2d 992

7 Kan.App.2d 196

In the Matter of the ESTATE OF Edna E. DUNCAN, Deceased.

No. 52666.

Court of Appeals of Kansas.

Jan. 14, 1982.

Syllabus by the Court

1. Out-of-time filing of an appeal bond does not defeat appellate jurisdiction where the notice of appeal is timely filed and no prejudice results.

2. A joint will is, in effect, the separate will of each testator and speaks only as to the testator's property as of the time of his or her death.

3. A joint and contractual will between husband and wife creates a binding and enforceable obligation upon the survivor who takes under the will to distribute the survivor's estate in accordance with the terms of the contract.

4. A final decree in a probate proceeding which assigns property in the general terms of the will does not comply with the intent of K.S.A. 59-2249, where the decree leaves in doubt substantial questions as to the nature and extent of the interest or title assigned.

5. A joint and contractual will between a husband and wife is construed, and it is held that (1) the grandson received under the will a vested remainder in his grandfather's properties, subject to a life estate with power of disposal in the grandmother, and (2) as the third-party beneficiary under the contractual will, a vested right to receive the grandmother's estate upon her death.

Richard L. Friedeman, Glenn Opie and Fred L. Conner, of Conner, Opie & Friedeman, Great Bend, and Harold H. Halstead, Mercer Island, Wash., for appellant Shirley Duncan, individually and as Executor of the Will of Maurice W. Duncan, deceased.

Robert L. Bates and Kent Roth, of Hagen, Bates & Suelter, Great Bend, for appellants Janet Lynn Duncan, Kevin Thane Duncan, Willow Le Duncan and Kyle J. Duncan.

Boyce P. Hardman, of Diets, Hardman, Watkins & Calcara, Great Bend, for appellee The First National Bank and Trust Company in Great Bend, as Executor of the Will of Edna E. Duncan, deceased.

Don C. Foss, Great Bend, for appellee, Maurice W. Duncan, Jr.

Before HOLMES, Justice Presiding, MEYER, J., and HARRY G. MILLER, District Judge Retired, Assigned.

HARRY G. MILLER, District Judge Retired, Assigned:

This appeal involves a joint and mutual contractual will executed by George A. Duncan and Edna E. Duncan, husband and wife.

The will was executed on February 8, 1939. There is nothing remarkable about the will itself. George and Edna respectively owned property of substantial value. They made an agreement between themselves, as reflected in the will, that their properties should go first to the survivor of them for life with a power of disposition, and then, after the death of the survivor, to their grandson, Maurice W. Duncan, (herein referred to as Maurice). After the execution of the will, however, an unusual course of events transpired to give rise to this litigation.

On April 7, 1946, George died, and the 1939 will was admitted to probate in Barton County. The final decree in those proceedings was entered on October 27, 1947.

On May 15, 1956, the only natural child of Maurice was born and was named Maurice W. Duncan, Jr., (referred to herein as Maurice, Jr.).

Sometime thereafter, Maurice divorced his wife and married Shirley Herndon, now Mrs. Shirley Duncan (referred to herein as Shirley), and in 1972, Maurice adopted the four children of his second wife, Shirley. These four children are Janet Lynn, Kevin Thane, Willow Le, and Kyle J., (referred to herein as the joint claimants).

Maurice, the grandson, executed his last will on October 27, 1973, and on January 30, 1978, he was killed in a traffic accident.

On March 30, 1978, exactly two months after the death of her grandson, Edna Duncan, at the age of 97, revoked her 1939 will and executed a new will which, by its terms, left everything to her great-grandson, Maurice, Jr.

Maurice's will was admitted to probate in the Superior Court of King County, Washington, on November 3, 1978, and Shirley Duncan was appointed and qualified as the executrix. She has filed her claim herein, individually and as executrix.

Edna Duncan died on February 20, 1979. The First National Bank and Trust Company in Great Bend, Kansas, on February 28, 1979, petitioned to have the March 30, 1978, will, Edna's second will, admitted to probate. Although Shirley filed objections to the admission of this will, the probate court on April 17, 1979, found that the 1939 will of Edna was not her last will and testament and admitted the second will to probate. The First National Bank and Trust Company (hereinafter referred to as the Bank) was appointed as executor.

Thereafter, Shirley sought relief in several ways, including (1) a motion for summary judgment on her petition for allowance of demand, (2) a petition to strike from inventory and to determine ownership of property, and (3) her answer and written defenses to the Bank's petition for the sale of real estate, all of which were unsuccessful.

On March 26, 1979, the probate court granted an oral motion for the attorney for Maurice, Jr., to enter his appearance in the case, and on August 3, 1979, the four adopted children of Maurice filed their petition for allowance of claim as the joint claimants herein.

The probate court, on October 10, 1980, entered an order directing the sale of real estate at private sale, and on October 23, 1980, Shirley Duncan filed her notice of appeal from the various orders. The joint claimants filed notice of appeal the following day.

Neither Shirley nor the joint claimants filed an appeal bond within 30 days as provided by K.S.A.1980 Supp. 59-2401. Thereupon, the Bank and Maurice, Jr. mailed to the Clerk of the Appellate Courts, for filing, a motion to dismiss the appeal for lack of jurisdiction. Upon receipt of a copy of this motion, Shirley and the joint claimants, without notice to the Bank and Maurice, Jr., applied to the probate court for an appeal bond and obtained an order to file an appeal bond in the amount of $5,000.00. This bond was filed with the probate court on December 29, 1980.

On January 15, 1981, this court denied the appellee's motion to dismiss and granted leave to renew and argue the motion at the hearing on the merits of the appellant's claims. The Supreme Court denied review of this ruling.

To begin with, then, we are faced with the pending motions to dismiss for lack of jurisdiction. The Bank and Maurice, Jr., have challenged the court's jurisdiction on the grounds that when an appeal bond is required by statute in order to perfect an appeal, failure to file such a bond results in complete absence of appellate jurisdiction. They rely particularly on In re Estate of Torrence, 204 Kan. 443, 464 P.2d 193 (1970); Polzin v. National Cooperative Refinery Ass'n, 179 Kan. 670, 298 P.2d 333 (1956), and St.L.K. & S.W.Rly.Co. v. Morse, 50 Kan. 99, 31 P. 676 (1892).

More recent cases, however, are to the contrary. In In re Estate of Zahradnik, 6 Kan.App.2d 84, 626 P.2d 1211 (1981), this court held that under present Kansas statutes, mere out-of-time filing of an appeal bond does not defeat appellate jurisdiction where notice of appeal is timely filed.

The Supreme Court, in In re Lakeview Gardens, Inc., 227 Kan. 161, 605 P.2d 576 (1980), held that under Kansas appellate practice, although timely filing of notice of appeal is jurisdictional, failure to strictly comply with other requirements for appeal is not jurisdictional where no prejudice results. The denial of an appeal on technical procedural grounds is not favored and should not serve as the basis for dismissing an appeal if the interests of justice dictate otherwise. Kansas Bankers Surety Co. v. Scott, 225 Kan. 200, 202, 589 P.2d 575 (1979). The appellee's motions to dismiss are therefore denied.

There can be little doubt that the 1939 will of George and Edna is a joint and contractual will. See In re Estate of Chronister, 203 Kan. 366, 454 P.2d 438 (1969). The parties concede this. Although the will contained a provision that it could not be changed or revoked without the written consent of each other, Edna revoked the will and made a second will. At issue herein is whether Edna violated the terms of the 1939 will in so doing. Notwithstanding this issue, under the law of this state it is the second will that is the appropriate one for probate, even though it may be ineffective to transfer property insofar as it violates the original contract. In re Estate of Adkins, 161 Kan. 239, 167 P.2d 618 (1946); Frontier Lodge v. Wilson, 139 Kan. 75, 30 P.2d 307 (1934).

The general rule is that a joint will is, in effect, the separate will of each testator and speaks as to his or her property from the time of his or her death. It affects only the deceased's own property or his share in jointly owned property. 79 Am.Jur.2d, Wills § 814, p. 867. See also Seal v. Seal, 212 Kan. 55, 510 P.2d 167 (1973), and In re Estate of Zimmerman, 207 Kan. 354, 485 P.2d 215 (1971). Thus George's will, when admitted to probate, spoke only as to his property.

The claims made by the respective appellants are each predicated upon paragraph "Second" of the joint will which provides as follows:

"It is the Will and desire of each of us, and each of us hereby gives, bequeaths and devises to the survivor of us, all the property, real, personal, or mixed, of which either of us shall die possessed, for and during the natural life of the survivor, to be by the survivor of us taken and held for his or her own use or disposal as he or she may deem right and proper, with full power to sell, dispose of, lease, mortgage and use the same; and after the death of the survivor of us, subject to the payment of debts and the several bequests hereinafter designated, we...