Estate of Winslow, Matter of
| Decision Date | 21 March 1997 |
| Docket Number | No. 74663,74663 |
| Parties | In the Matter of the ESTATE OF Mary Isabel WINSLOW, Deceased. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. The construction of a written instrument is a question of law, and the instrument may be construed and its legal effect determined by an appellate court.
2. Where a court, either trial or appellate, is called upon to determine the force and effect to be given terms of a will, the court's first duty is to survey the instrument in its entirety and ascertain whether its language is so indefinite and uncertain as to require employment of rules of judicial construction to determine its force and effect.
3. When interpreting a will, the primary function of the court is to ascertain the testator's intent from the four corners of the will and to carry out that intent if possible and not contrary to law or public policy.
4. Where the language of a will is clear, definite, and unambiguous, the court should not consider rules of judicial construction to determine the intent of the testator.
5. At common law, a gift to a legatee or devisee who died before the testator lapsed. This rule was based on necessity and the ambulatory character of a will. Anti-lapse statutes soon evolved to temper application of the common-law rule. However, in the absence of a statute, or other provisions in a will which showed the testator intended the gift to go to some other designated person when the beneficiary predeceased the testator, the gift lapsed.
6. K.S.A. 59-615, the Kansas anti-lapse statute, becomes operative only when (1) the testator bequeaths or devises property to a beneficiary who is a member of the class designated by the statute; (2) the specified beneficiary predeceases the testator and leaves issue who survive the testator; and (3) the testator does not revoke or change his or her will as to the predeceased beneficiary.
7. 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.
8. The legal phrase "per stirpes" does not designate who will share in the estate, but rather, how the estate will be divided among those who do take. The term refers to the manner of distribution and denotes that method of dividing an intestate estate wherea class or group of distributees takes the share to which their deceased would have been entitled, thus taking by their right of representing such ancestor.
9. Before attorney fees and expenses can be assessed pursuant to K.S.A. 60-2007(b), it must be shown that the claim was asserted without a reasonable basis in fact and not in good faith. The party who asserts that a pleading has no basis in fact and is not asserted in good faith has the burden of proving that assertion.
George Voss, Dodge City, for appellant/cross-appellee, Richard W. O'Neill II.
Glenn I. Kerbs and Lynn M. Retz of Patton, Kerbs & Hess, Dodge City, for appellee/cross-appellant, executor of the estate.
Philip Ridenour, of Ridenour and Ridenour, of Cimarron, for appellees/cross-appellants Margaret O'Neill Romagnoli and Jacqueline W. Verity.
Before RULON, P.J., LEWIS, J., and PHILIP L. SIEVE, District Judge, Assigned.
This is a will contest case. Claimant Richard O'Neill II appeals the district court's The material facts of this case are essentially undisputed and are as follows:
interpretation of a residuary clause. The executor of the estate and the remaining residuary legatees, respondents, cross-appeal the court's denial of attorney fees under K.S.A. 60-211 and K.S.A. 60-2007. We affirm.
Mary Isabel Winslow (decedent) executed a will in November 1992. The clause at issue, the residuary clause, reads:
Mary died on November 29, 1993. Margaret Romagnoli and Jacqueline Verity survived her, but Hugh B. O'Neill did not. Hugh B. O'Neill left no spouse or children.
In the petition for final settlement of Mary's estate, the executor claimed that because Hugh had predeceased Mary, and because Hugh had no issue surviving, his interest had lapsed. Claimant, Hugh's nephew, challenged the final settlement, arguing that as the sole testamentary beneficiary of Hugh's estate, he was entitled to Hugh's share of Mary's estate.
The district court ultimately found the will was unambiguous and the antilapse statute, K.S.A. 59-615, was inapplicable, and concluded Hugh's interest in Mary's estate had lapsed. The court further denied respondents' motion for attorney fees.
Our standard of review is well settled:
"Where the language of a will is clear, definite, and unambiguous, the court should not consider rules of judicial construction to determine the intent of the testator." In re Estate of Cline, 258 Kan. 196, Syl. pp 1-4, 898 P.2d 643 (1995).
The principal issue before us is whether the district court erred in finding that Hugh's interest in Mary's estate had lapsed and, therefore, the property described in Mary's residuary clause passed to the two named residuary legatees.
As we understand, claimant's sole argument is that by using the term "per stirpes," Mary communicated her intent that a bequest not lapse if a residuary beneficiary predeceased her, but should pass to the beneficiary's heirs whether they be issue or beneficiaries under Hugh's will.
In re Estate of Thompson, 213 Kan. 704, 705-06, 518 P.2d 393 (1974).
K.S.A. 59-615 provides as follows:
"(a) If a devise or bequest is made to a spouse or to any relative by lineal descent or within the sixth degree, whether by blood or adoption, and such spouse or relative dies before the testator, leaving issue "(b) As used in this section or as used in any will executed on or after July 1, 1973, unless the provisions of such will specifically provide to the contrary, the term 'issue' means offspring, progeny or lineal descendants, by blood or adoption, in whatever degree."
who survive the testator, such issue shall take the same estate which said devisee or legatee would have taken if he or she had survived, unless a different disposition is made or required by the will.
K.S.A. 59-615, the Kansas anti-lapse statute, becomes operative only when (1) the testator bequeaths or devises property to a beneficiary who is a member of the class designated by the statute; (2) the specified beneficiary predeceases the testator and leaves issue who survive the testator; and (3) the testator does not revoke or change his or her will as to the predeceased beneficiary. 213 Kan. at 709, 518 P.2d 393. Here, both parties concede the anti-lapse statute is not applicable because, while Hugh predeceased Mary and was related to Mary within the sixth degree, he had no issue.
The long-settled rule in Kansas is that
In re Estate of Sowder, 185 Kan. 74, 80, 340 P.2d 907 (1959).
The primary authority relied on by claimant is Richland Trust Co. v. Becvar, 44 Ohio St.2d 219, 339 N.E.2d 830 (1975), where the testatrix's will made a number of specific gifts to specific persons and in almost every instance designated whether or not the gift would lapse if the individual predeceased her. The residuary clause divided the residue of the estate among seven individuals. Interestingly, the language of the residuary clause provided that if certain of these named individuals did not survive the testatrix, then there would be a gift over to specified beneficiaries. However, the gift over language was not uniformly provided in all the residuary bequests. The bequest in question reads; "One-seventh (1/7) to Louise Hummel, per stirpes." The Becvar court concluded that where the testatrix wanted the gift to lapse, she said so with provisions for a gift over. Where the testatrix intended the secondary gifts to go to the issue of the primary takers, she so designated. The Be...
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