Foster v. Allen

• Decision Date: 04 November 1944
• Docket Number: 36119.
• Citation: 159 Kan. 116,152 P.2d 818
• Parties: FOSTER et al. v. ALLEN et al.
• Court: Kansas Supreme Court

152 P.2d 818

159 Kan. 116

FOSTER et al. v. ALLEN et al.

No. 36119.

Supreme Court of Kansas

November 4, 1944

Syllabus by the Court.

Warranty deeds and contemporaneously executed agreement providing for their deposit in escrow for delivery in the future must be construed together to determine the contract of the parties thereto.

Warranty deeds, and contemporaneously executed agreement providing for their deposit in escrow for delivery upon death of both of the grantors, were testamentary in character.

That warranty deeds and contemporaneously executed escrow agreement, which construed together were testamentary in character, were not valid as a will because not executed as required by statutes pertaining to wills, did not prevent enforcement of their contractual provisions.

Contract evidenced by warranty deeds and contemporaneously executed agreement providing that they should be deposited in escrow for delivery upon death of grantors, that during lifetime of grantors or either of them, grantees for use of lands should pay stipulated annual rental and taxes and that in case of default in such payments, contract might be forfeited at option of grantors and payments made by grantees forfeited and retained by grantors was ambiguous, and trial court did not err in receiving testimony of surviving grantor and scrivener to aid in determining whether transaction was a rental or purchase agreement.

Contract evidenced by warranty deeds and contemporaneously executed agreement providing that they should be deposited in escrow for delivery upon death of grantors, that during lifetime of grantors or either of them grantees for use of the land should pay stipulated annual rental and taxes, and that in case of default in such payments contract might be forfeited at option of grantors and such payments forfeited and retained by grantors was a contract for purchase and sale of realty and not for rental thereof.

Trial court's findings of fact made from conflicting evidence are conclusive on appeal.

Action involving construction of contract evidenced by warranty deeds and contemporaneously executed escrow agreement did not involve a reformation of deeds so as to be subject to five-year statute of limitations. Gen.St.1935, 60-306, subd 6.

In construing a will, it must be read as a whole and each part of it must be considered.

A will should be so construed, if possible, as to avoid intestacy but in order to accomplish such purpose, pertinent parts of the will may not be ignored. Gen.St.1935, 22-258.

When widow elected to take under deceased husband's will, she barred herself as an heir to intestate property and took no part of estate as to which husband made no disposition by will.

Will devising residuary estate to testator's wife to have and to hold during her natural life, provided that should she remarry, half of estate should immediately pass to testator's children, was clear and parol evidence of scrivener and others to prove a possible contrary intention of testator was incompetent. Rules of the Supreme Court, rule 53.

Under a will devising residuary estate to widow to have and to hold during her natural life, provided that should she remarry half of estate should immediately pass to testator's children, widow took only a life estate, defeasible in part upon remarriage, and not a fee-simple estate.

The rights of issue of life tenant, who were not made parties to action, could not be determined in action for declaratory judgment involving construction of contract evidenced by deeds conveying life estates with remainder to surviving issue of one of the life tenants, and contemporaneously executed escrow agreement.

1. Warranty deeds and an agreement providing for their deposit in escrow for delivery in the future, are to be construed together to determine the contract of the parties thereto.

2. The deeds and agreement mentioned in the preceding paragraph examined and construed, and held to be testamentary in character.

3. The fact that the instruments construed together may not be valid as a will, because not executed in the manner required by the statutes pertaining to wills, does not prevent enforcement of their contractual provisions.

4. The contract evidenced by the above deeds and escrow agreement and the evidence pertaining thereto, examined, and held, the trial court did not err in deciding that the contract was for the purchase and sale of real estate and not one for rental thereof.

5. The provisions of a last will disposing of real estate, set out in the opinion, examined, and held, the trial court did not err in deciding that the wife of a testator took only a life estate, defeasible in part upon conditions named, and not a fee-simple estate.

6. Rulings of the trial court on reception of evidence and in subsequently striking part thereof, examined and held not to be erroneous.

Appeal from District Court, Russell County; C. A. Spencer, Judge.

Action by Anna May Foster and another against Blanch Anna Allen and others for a declaratory judgment as to the right of plaintiffs to execute oil and gas leases on, and for judgment quieting title to, certain realty. From the judgment rendered Blanch Anna Allen and another appeal, and plaintiffs cross-appeal.

Judgment modified, and as modified, affirmed.

J. S. Simmons and Stuart Simmons, both of Hutchinson, for appellants and cross-appellees.

Jerry E. Driscoll and Harold W. McCombs, both of Russell, for appellees and cross-appellants.

THIELE Justice.

This was an action for a declaratory judgment as to the right of the plaintiffs to execute oil and gas leases on, and for judgment quieting title to, a contiguous tract of land lying in Barton and Russell Counties, the land having at one time been owned as tenants in common by Charles D. Davidson, who died in 1930, and his wife, Anna B. Davidson. Anna May Foster, a daughter of Charles D. Davidson, and her husband Ralph Foster, were plaintiffs, and the defendants included a daughter of Davidson, Blanch Anna Allen, and her husband Charles R. Allen, who are appellants here, as well as the widow and other children, or issue of deceased children of Davidson, and some others, none of whom were served with notice of appeal. At the trial the court made findings of fact and conclusions of law and rendered judgment, as more fully set forth later. The real questions in issue were the construction of the will of Charles D. Davidson and the validity and effect of two deeds of the plaintiffs and of an escrow agreement made in connection therewith. From the judgment rendered the defendants Allen appeal, and the plaintiffs appeal from the rulings pertaining to the will.

The allegations of the petition are summarized. It was alleged that on January 16, 1926, Charles D. Davidson and Anna B Davidson, his wife, were the owners of the certain real estate, and on that day entered into a contract in writing whereby they agreed to sell and convey the real estate to the plaintiffs, a copy of the agreement being attached as part of the petition, and later mentioned. On the same day the Davidsons, for a valuable consideration executed and delivered two warranty deeds, one conveying the land in Russell County, the other conveying the land in Barton County; that pursuant to the written agreement and the intention of the parties, plaintiffs entered into possession of the real estate and since have paid to the Davidsons or the survivor the sum of $500 on March 1st of each year and all taxes assessed against the real estate and have fully performed all the terms and conditions of the contract to be performed by them. That if the agreement and deeds failed to show the rights of plaintiffs, such failure, if any, was due to mutual mistakes of the parties, or error on the part of the scrivener in preparation of the instruments and such instruments should be reformed. It was further alleged that Charles D. Davidson died February 12, 1930, a resident of Barton County and that his last will, a copy of which was attached and made part of the petition, and is later mentioned, was duly admitted to probate; that the estate was closed March 25, 1933, but that no findings were made by the probate court of Barton County, or other court of competent jurisdiction, determining who were heirs or devisees, or the nature, character or extent of the property passing under the will, but plaintiffs alleged that none of the real property involved passed under the will of Charles D. Davidson. It was also alleged that the above deeds were actually delivered to plaintiffs and by them in turn delivered to the escrow holder for the sole purpose of securing payment of the taxes and the annual payments of $500, and that it was the intention of all parties that plaintiffs should be entitled to the immediate possession of the real estate, with the right to collect the rent and profits and the right to execute oil and gas leases and to collect and receive the proceeds therefrom. Then follows allegations about oil and gas leases and provisions for rents and royalties to be paid to Anna B. Davidson. These are followed by an allegation that on February 19, 1942, Anna B. Davidson by quit claim deed conveyed to plaintiffs all her interest in the involved real estate, present, contingent and in expectancy, but reserving to her a certain interest for her natural life in the oil, gas and minerals, the details of which are not in controversy. It is then alleged, in detail, that controversy had arisen whether any of the real estate passed under the will of Charles D. Davidson, deceased, and if so the nature of what passed, and as to who could execute oil and gas leases; that oil and gas in paying quantities was being produced from the lands and there was controversy as...