Dyal v. Brunt

• Decision Date: 10 March 1942
• Docket Number: 35437.
• Citation: 123 P.2d 307,155 Kan. 141
• Parties: DYAL v. BRUNT et al.
• Court: Kansas Supreme Court

123 P.2d 307

155 Kan. 141

DYAL v. BRUNT et al.

No. 35437.

Supreme Court of Kansas

March 10, 1942

Syllabus by the Court.

Under will devising realty to widow, and other realty to son, and residue to widow and son share and share alike, and providing that property passing to widow under will and not used or otherwise disposed of at her death should go to son, son would be entitled, on death of widow, to all property which passed to widow under will and had not been used or disposed of at time of her death, as against contention that son was entitled to widow's share of residue not used or disposed of by her at her death, but not to realty devised to widow.

In construing a will at a time when it is known some of the alternative situations provided for therein do not exist court is not authorized to excise provisions relating to those situations when a consideration of them would throw some light on testator's intentions.

In construing will, court must put itself as nearly as possible in situation of testator when he made will, and from a consideration of that situation, and from language used in every part of will, determine as best it can the purposes of testator and intentions he endeavored to convey by the language used.

The rule that, where a will contains a clause devising property in fee and a later clause containing directions inconsistent with the fee previously devised, the later clause is void has been disapproved.

In construing wills, courts have no authority to reform will or to excise from it important provisions which have a bearing on testator's intention.

1. Normally one who makes a will takes into consideration the extent and character of his property, the persons entitled to his bounty, their relations to himself and to each other, and looks to the future. Frequently he takes into consideration alternative situations possible to arise and makes alternative provisions in his will dependent upon which of the possible situations may exist at some future time.

2. In construing a will the court must put itself as nearly as possible in the situation of the testator when he made the will and from a consideration of that situation, and from the language used in every part of the will, determine as best it can the purposes of the testator and the intentions he endeavored to convey by the language used.

3. In construing a will at a time when it is known some of the alternative situations provided for therein do not exist, the court is not authorized to excise provisions relating to those situations from the will when a consideration of them would throw some light upon the testator's intentions.

4. The rule of law stated in McNutt v. McComb, 61 Kan. 25 58 P. 965, that where a will contains a clause devising property in fee and a later clause containing directions inconsistent with the fee previously devised the later clause is void, has been disapproved as thoroughly as though it had been specifically overruled.

5. The court has no authority to reform or to redraft a will.

Appeal from District Court, Shawnee County, Third Division; Dean McElhenny, Judge.

Action by Albert T. Dyal against Harlan H. Brunt and others to construe a will and to recover property which the plaintiff alleged he was entitled to under the will. From the judgment the plaintiff appeals.

Reversed with directions.

Robert Stone, James A. McClure, Robert L. Webb, Beryl R. Johnson, and Ralph W. Oman, all of Topeka, and Vernon B. Hill, S. R. Greer, and Julius F. Franki, all of Mission, Tex., for appellant.

A. D. Weiskirch, Jr., of Topeka, for appellees.

HARVEY Justice.

This was an action to construe a will and to recover property plaintiff alleged he was entitled to under it. The court acceded to the request of the parties to pass upon the legal questions involved in the construction of the will in advance of the trial upon questions of fact. The trial court construed the will contrary to plaintiff's contention in at least one important particular, and he has appealed.

The pertinent facts are not controverted and may be stated as follows: The plaintiff, Albert T. Dyal, born October 10, 1903, is the son and only child of William A. Dyal and his wife, Salome Crowe Dyal. His mother died in 1905 and some two years later William A. Dyal married Lillian Hossfeld. There were no children by the second marriage. William A. Dyal died January 9, 1918, leaving a will, executed December 11, 1917. At the time of his death his only heirs at law were his wife, Lillian Dyal, and his son, Albert T. Dyal, plaintiff herein, and they were the only persons named as beneficiaries under his will. At the time of his death he was the owner of several parcels of real property and of considerable personal property, including a substantial going business. As written, the body of the will contained nine paragraphs, four of which were numbered; the others were not. For convenience of reference the trial court used the Roman numerals I to IX to designate the paragraphs. The first seven of these paragraphs read as follows:

I. "First, I direct that all indebtedness, including that of last illness, funeral expenses and the erection of a suitable monument, be first paid.

II. "Second, I give, grant, devise and bequeath to my wife, Lillian Dyal, our home, being lot two (2) on Greenwood Avenue in Potwin Place together with the furniture, household goods and equipment contained therein; also the north twenty-three and two-thirds (23-2/3) feet of lot twenty-seven (27) on Kansas Avenue in the city of Topeka, all in Shawnee County, Kansas.

III. "Third, I give, grant, devise and bequeath to my son, Albert T. Dyal, lots thirty (30) and thirty-two (32) and an undivided one-half interest in lot fifty (50) all on Kansas Avenue North in the city of Topeka, Shawnee County, Kansas.

IV. "Said property to be held in trust by my wife, Lillian Dyal, and to be managed by her, for the use and benefit of said Albert T. Dyal, without bond, until the said Albert T. Dyal shall arrive at the age of twenty-one years.

V. "Fourth, all the residue and remainder of my estate both real and personal I give, grant, devise and bequeath to my wife, Lillian and to my son, Albert T., share and share alike, the share of my son Albert T. to be held in trust by my wife, Lillian, and to be by her managed and cared for, without bond, until said Albert T. shall arrive at the age of twenty-one years.

VI. "If my wife shall depart this life before this will takes effect I give, grant, devise and bequeath the part of my estate herein given to her, to my son, Albert T. Dyal, and if my son Albert T. Dyal, shall depart this life before this will takes effect I give, grant, devise and bequeath the part given to him to my said wife, Lillian.

VII. "In case my wife and myself should die in or as the immediate result of a common casualty or in case she should die without having used or otherwise disposed of the property herein devised and bequeathed to her, I give, grant, devise and bequeath the same to my son Albert T. Dyal."

By the VIIth paragraph Lillian Dyal was named executrix with authority to sell and convey the real property, and the IXth paragraph gave her similar authority as executrix and as trustee for the son respecting the personal property.

The will was duly admitted to probate on January 15, 1918. The widow, Lillian Dyal, filed a written election to take under the will. She was duly appointed and qualified as executrix and duly administered the estate and closed the administration. On March 22, 1918, she was appointed by the probate court to act as trustee of the property which passed by the will to the son, and continued to act as such trustee until he became twenty-one years of age, and made her report and was finally discharged as such trustee on November 12, 1934. She died intestate on June 5, 1941, leaving as her sole heirs at law two brothers and one sister. Co-administrators have been appointed for her estate, who have entered upon and taken possession of all of the property belonging to her at the time of her death. Plaintiff has made demand upon them for the property which he claims passed to him under the will, which demand was refused.

After issues were joined and a hearing, the court made findings of fact, substantially as above stated, and the following conclusions of law:

"1. Paragraph II is a devise and bequest in fee of the real and personal property therein described to Lillian Dyal and is not limited by the provisions of Paragraph VII.

"2. Paragraph III is a devise in fee of the real property therein described to Albert T. Dyal and is not now limited nor restricted by any subsequent provision of the Will.

"3. Paragraphs V, VI and VII, after applying the facts as they existed upon the death of Lillian Dyal and after eliminating from these paragraphs the provisions which, upon the death of Lillian Dyal, were inoperative, would read as follows:

"'All the residue and remainder of my estate both real and personal I give, grant, devise and bequeath to my wife, Lillian, and to my son, Albert T., share and share alike. In case my wife should die without having used or otherwise disposed of the property herein devised and bequeathed to her, I give, grant, devise and bequeath the same to my son, Albert T. Dyal.' (Emphasis mine.)

"4. I conclude that the phrase 'herein devised and bequeathed to her' which appears in paragraph VII refers only to the one-half of the residue and remainder of the estate given to the wife in paragraph V.

"5. I further conclude that if there remained any of the one-half of the residue of the estate given to Lillian Dyal by paragraph V and which she had not 'used or otherwise disposed of', that such remainder passed to Albert T.

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