Farley v. Fullerton

• Decision Date: 08 May 1937
• Docket Number: 33136.
• Citation: 67 P.2d 525,145 Kan. 760
• Parties: FARLEY v. FULLERTON.
• Court: Kansas Supreme Court

67 P.2d 525

145 Kan. 760

FARLEY v. FULLERTON.

No. 33136.

Supreme Court of Kansas

May 8, 1937

Syllabus by the Court.

In action against administrator to enforce claim to specific bequest to "the person who takes care of me during my last sickness," where real defense was not based on any dispute of material fact, but chiefly on question whether plaintiff's admitted services brought her within specific terms of bequest, administrator held not entitled to jury trial.

Specific bequest to "the person who takes care of me during my last sickness, unless I *** die suddenly," providing for bequest to remain portion of testatrix' estate "in the event of my death suddenly, and this devise not having been properly earned" held not ambiguous, hence interpretation thereof was for court, not for jury.

In action to enforce claim to specific bequest to "the person who takes care of me during my last sickness," evidence that testatrix intended that beneficiary should be her son held properly excluded, in view of rule that where language of will is plain, evidence to prove intention is inadmissible, and fact that there was another specific bequest which recognized previous services of son, and fact that plaintiff was person who took care of testatrix during her last illness.

Necessity of resorting to extrinsic evidence to ascertain person intended to be beneficiary of bequest does not create ambiguity as to intention of testatrix.

Will or bequest is not invalid because it does not designate beneficiary by name, if beneficiary is so described as to be readily ascertained by aid of extrinsic evidence.

In an action to enforce a claim to a specific bequest under the terms of a will, the record examined and held: (1) There was no substantial issue of fact which called for the services of a jury; (2) the terms of the bequest were not ambiguous; (3) no prejudicial error inheres in the judgment in favor of plaintiff.

Appeal from District Court, Barber County; George L. Hay, Judge.

Action by Mary Farley against L. W. Fullerton, administrator of the estate of Charlotte Fox, deceased. Judgment for plaintiff and defendant appeals.

Samuel Griffin and O. Mills, Jr., both of Medicine Lodge, for appellant.

Donald Muir, of Anthony, and J. Raymand Eggleston, of Medicine Lodge, for appellee.

DAWSON Chief Justice.

This action arose out of plaintiff's claim to a specific bequest under the will of the late Charlotte Fox of Barber county.

The testatrix died at an advanced age. She had three sons Lawrence, James, and Harry, each of whom were fathers of families. In her will Mrs. Fox bequeathed her household goods to her three sons. She also made five specific bequests, and devised and bequeathed the residue of her estate to her three sons, share and share alike, with a proviso concerning the disposition of any remainder of James' share, in the event of his death.

Our concern in this lawsuit is with the following specific bequest which reads "To the person who takes care of me during my last sickness, unless I shall happen to die suddenly, I give and bequeath the sum of Three Hundred Dollars ($300.00), to be in addition to any sum or sums that such person may have had bequeathed to him elsewhere in this instrument. And in the event of my death suddenly, and this devise not having been properly earned, I direct that such portion herein mentioned by me in this bequest of Three Hundred Dollars, be and do remain as that portion of my estate to be disposed of in the following Item." (Italics ours.)

The plaintiff, Mary H. Farley, claimed to be entitled to this bequest on the ground that she had rendered the services contemplated by the will.

The probate court rejected her claim and she appealed to the district court with better success. The cause was heard on the pleadings, on affidavits, and on exhibits of canceled checks showing payment of weekly wages to plaintiff from the testatrix. Judgment was entered in plaintiff's favor, and the cause is brought here for review.

It is first contended that there were issues of fact which entitled defendant to a jury trial and that it was error to dismiss the jury. Plaintiff's claim was as follows:

"For services rendered from August 1, 1930, until the middle of the winter of 1931. Also services rendered from April 1, 1932, until August 30, 1932. During all of this time I received the sum of $10 per week. Employment was taken with the understanding that if the said Charlotte Fox became ill in bed I was to receive $35 a week. Mrs. Fox became ill on April 28, 1932, while living at her home at Hazelton, Kansas. On April 30, 1932, I went to Anthony with Mrs. Fox where she remained and doctored with Dr. Galloway until July, 1932. She was in bed all of this time and I had sole charge of her. On July 3, 1932, we returned to her home at Hazelton. She became worse and we moved to Jim Fox's home at Cherokee, Oklahoma. This decision was made by Charlotte Fox and Jim Fox, with the understanding that I was to go along and take care of her. At the time she was taken ill in bed I was informed of the bequest in the will and at Charlotte Fox's request we changed the contract from $35 per week, permitting it to remain at $10 a week, with the understanding that I was to have the $300 at the time of her death."

It will be seen that in the claim just quoted plaintiff did tender certain issues of fact;...