Estate of Wise, Matter of

• Decision Date: 03 March 1995
• Docket Number: No. 71790,71790
• Citation: 890 P.2d 744,20 Kan.App.2d 624
• Parties: In the Matter of the ESTATE OF Frank E. WISE, Deceased.
• Court: Kansas Court of Appeals

Page 744

890 P.2d 744

20 Kan.App.2d 624

In the Matter of the ESTATE OF Frank E. WISE, Deceased.

No. 71790.

Court of Appeals of Kansas.

March 3, 1995.

Syllabus by the Court

1. Family settlement agreements are "favorites of the law." The mutual promises of the contracting parties provide sufficient consideration for the agreement.

2. To be valid, a family settlement agreement must be in writing and acknowledged and approved by all heirs, devisees, and legatees, and all other interested or affected persons, all of whom must be competent or authorized to enter into such an agreement.

3. A family settlement agreement must be submitted to and approved by the district court in order to obtain a decree of final settlement and an assignment of the real estate in accord with its provisions.

4. Standing is a question of whether a party has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of jurisdiction and to justify exercise of the court's remedial powers on his behalf. "Standing to sue" means that a party has sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy.

5. An executor's duty is not to represent any individual who may be interested in the estate, but to act in the best interests of the estate; an executor may not take sides in a dispute regarding distribution of an estate.

6. An executor has no pecuniary interest in the distribution of an estate that would be affected by a family settlement agreement. Thus, an executor has no stake in the existence or content of a family settlement agreement and lacks standing to object to such an agreement.

7. A district court may appoint a guardian ad litem in any probate proceeding to represent and defend a party to the proceeding who is under a legal disability. K.S.A. 59-2205.

8. A guardian ad litem appointed in a probate proceeding to represent a party to the proceeding who is under a legal disability may enter into a family settlement agreement, subject to court approval.

Dennis D. Depew, Depew Law Firm, Neodesha, for appellant.

Gaylord I. Maples, Wichita, for appellee.

Before ROYSE, P.J., LARSON, J., and JOHN J. BUKATY, JR., District Judge, Assigned.

ROYSE, Presiding Judge.

Sally Pokorny, as guardian ad litem for Viola Dill, entered into a family settlement agreement with Mary Wise (Wise) to divide the estate of Frank E. Wise, deceased. Wise filed a motion asking the district court to approve the family settlement agreement but the court refused. Wise appeals, arguing the district court erred (1) in concluding the executor had standing to object to the agreement and (2) in holding that the guardian ad litem lacked authority to enter into a family settlement agreement.

The parties have stipulated to the facts. Frank E. Wise executed his will in 1984. He left his entire estate to his wife, Annaleise Wise. The will provided that if Annaleise predeceased Frank, then the entire estate would go to Viola Dill, Frank's mother-in-law. The will named Viola's son, Kenneth Dill, as executor of the estate if Annaleise predeceased Frank.

Annaleise died in 1985. Frank and Mary Wise were married in 1987. Frank did not revise his will before he died in 1992. Kenneth Dill filed a petition for probate of the will and asked to be appointed executor. The district court granted those requests. Pursuant to the executor's motion, the district court declared Viola Dill to be an "incapacitated person" and appointed Pokorny to serve as her guardian ad litem. Wise filed an election to take by intestate succession.

Wise and Pokorny, as guardian ad litem for Viola Dill, entered into a Family Settlement Agreement (Agreement). Wise agreed to give up her claimed interest in certain IRA accounts, and, in return, Viola Dill would give up her claim to a one-half interest in the homestead. Wise filed a motion asking the district court to approve the Agreement as fair and equitable. Pokorny, as guardian ad litem for Viola Dill, joined in the motion. Kenneth Dill, as executor, filed a brief opposing the Agreement.

Based on the briefs submitted by the parties, the district court ruled (1) Kenneth Dill, as executor, had standing to object to the Agreement and (2) Pokorny, as guardian ad litem, did not have the authority to enter into a family settlement agreement for Viola Dill. The district court concluded that it did not need to determine whether the Agreement was fair.

Before examining the issues on appeal, we note that family settlement agreements are "favorites of the law." The mutual promises of the contracting parties provide sufficient consideration for the agreement. In re Estate of Harper, 202 Kan. 150, Syl. p 4, 446 P.2d 738 (1968). To be valid, a family settlement agreement must be in writing and acknowledged and approved by "all heirs, devisees and legatees, and all other interested or affected persons, all of whom must be competent or authorized to enter into such agreement." K.S.A. 59-102(8). A family settlement agreement must be submitted to and approved by the district court in order to obtain a decree of final settlement and an assignment of the real estate in accord with its provisions. K.S.A. 59-2249; Brent v. McDonald, 180 Kan. 142, 152, 300 P.2d 396 (1956).

The first issue on appeal is whether Kenneth Dill, as executor, had standing to object to the Agreement. The district court decided this issue as a matter of law, based on stipulated facts. Appellate review of conclusions of law is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).

Standing is a question of whether a party has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of jurisdiction and to justify exercise of the court's remedial powers on his behalf. Harrison v. Long, 241 Kan. 174, 176, 734 P.2d 1155 (1987). "Standing to sue" means that a party has sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy. Joe Self Chevrolet, Inc. v. Board of Sedgwick County Comm'rs, 247 Kan. 625, 629, 802 P.2d 1231 (1990); cf. State v. Wickliffe, 16 Kan.App.2d 424, 429, 826 P.2d 522 (1992) (standing to challenge the validity of a search limited to those whose own Fourth Amendment rights have been violated).

Kenneth Dill does not claim that he has a stake, either personally or as executor, in the outcome of the controversy. He does not claim that he possesses any interest that will be affected by the district court's decision to approve or disapprove the Agreement. Instead, Kenneth Dill relies on a standing-by-necessity argument. He reasons that, as executor, he is a personal representative of all the heirs, devisees, legatees, and creditors, and he therefore has a duty to protect Viola Dill's interests. He contends there was no other person to protect Viola Dill's interests. This argument is not persuasive.

One problem with Kenneth Dill's argument is that his premise is incorrect. Kansas appellate decisions have emphasized that an executor's duty is not to represent any individual who may be interested in the estate, but to act in the best interests of the estate. See In re Estate of Lohse v. Rubow, 207 Kan. 36, 40, 483 P.2d 1048 (1971). An executor's duty is to the estate, not to the heirs or legatees of the estate. In re Tax Appeal of Estate of Kerschen, 13 Kan.App.2d 370, Syl. p 4, 771 P.2d 74 (1989); see In re Estate of Stahl, 226 Kan. 48, 54, 596 P.2d 121 (1979).

An examination of the circumstances of this case reveals why Kenneth Dill's premise is unworkable. While claiming to represent the interests of Viola Dill, a devisee, the executor has opposed the claimed interests of Wise, an heir. Kenneth Dill's position, which preferred one interested party over another, is not consistent with his claim that he is a personal representative of all persons who have an interest in the estate.

The Kansas Supreme Court has previously ruled that an executor may not take sides in a dispute regarding distribution of an estate. The case of In re Estate of Benso, 165 Kan. 709, 710, 199 P.2d 523 (1948), involved a controversy between the widow of the decedent and his children by a former marriage. The children claimed that an antenuptial agreement limited the property the widow could receive from the estate. The widow claimed the antenuptial agreement had been destroyed, and she was entitled to receive a one-half interest in the estate. The executor filed an answer, claiming the antenuptial agreement was in effect and should control the distribution of the estate. When the district court ruled in favor of the widow, the executor filed an appeal.

The widow filed a motion to dismiss the executor's appeal, which the Supreme Court granted. The court observed that by filing the answer in the lower court, the executor "took one side of a controversy that concerned him not at all." 165 Kan. at 711, 199 P.2d 523. The court quoted from 2 Am.Jur., Appeal and Error § 183, pp. 960-61:

" 'An executor or administrator, as such, is not, however, aggrieved or prejudiced by a decree or judgment as to the rights of the beneficiaries, and therefore, cannot appeal from a decree affecting their interests. In accordance with this rule, it is held that an administrator is not entitled to appeal from a decree of distribution.' " 165 Kan. at 711, 199 P.2d 523.

Applying that general rule, the court concluded:

"The administrator's statement in his final report of the respective claims of the parties was proper. It was improper for him later to take sides. He is not concerned with the contest between heirs which they litigate at their own expense and on their own behalf. His appeal, therefore, is dismissed." 165 Kan. at 711, 199 P.2d 523.

See In re Waterman, 212 Kan. 826, 834, 512 P.2d 466 (1973).

Under the rule adopted in Benso, an executor cannot become an advocate for one side in a controversy over distribution of an estate....