Graves' Estate, In re

• Decision Date: 17 July 1969
• Docket Number: No. 45382,45382
• Citation: 203 Kan. 762,457 P.2d 71
• Parties: In the Matter of the ESTATE of Laura M. GRAVES, Deceased. Harlan L. GRAVES, Individually and Executor of the Estate of Laura M. Graves, Deceased, Appellant, v. Mary Faye HOLLAND and Gena M. Hildinger, Appellees.
• Court: Kansas Supreme Court

Page 71

457 P.2d 71

203 Kan. 762

In the Matter of the ESTATE of Laura M. GRAVES, Deceased.

Harlan L. GRAVES, Individually and Executor of the Estate of Laura M. Graves, Deceased, Appellant, v. Mary Faye HOLLAND and Gena M. Hildinger, Appellees.

No. 45382.

Supreme Court of Kansas.

July 17, 1969.

Rehearing Denied Sept. 8, 1969.

Syllabus by the Court

1. Unless the will provides otherwise, K.S.A. 59-1405 determines what property of a decedent shall be liable for payment of his debts and other lawful demands against the decedent's estate except state inheritance taxes which by other statutes, in the absence of anything in the will to the contrary, are apportioned among the legatees.

2. The first responsibility of a court when the meaning of the language in a will is challenged is to determine from a consideration of all the language whether a conflict or ambiguity exists.

3. This court has long been committed to the rule that where, from an analysis of the entire instrument, no ambiguity or uncertainty is to be found in its language, the intention of the testator being clearly and unequivocally expressed, there is no occasion to employ rules of judicial construction and the will must be enforced in accordance with its terms and provisions.

4. In considering a will a court cannot begin by inferring a testator's intention and then construe the will to give effect to such intention however probable it may be, nor can it rewrite the will, in whole or in part, to conform to such presumed intention. It is the duty of a court to construe not to construct a will.

5. If a testator has omitted to provide for a state of affairs which has actually come to pass, a court cannot make the assumption that a testator would have had a given intention if he had thought of the state of facts which actually existed, and give effect to such probable intention.

6. In an action to construe a will the instrument is examined and it is held, the trial court erred in applying the rules of construction to the clear and unambiguous language used in the will and in charging the specific legacies with the payment of debts, administration expense and other lawful demands, except state inheritance taxes, for the purpose of leaving funds available to apply on a general legacy.

R. R. Mitchell, Doge City, argued the cause, and A. L. Moffat, Kinsley, and Don C. Smith and David L. Patton, Dodge City, were with him on the brief for appellant.

Steve W. Church, Greensburg, argued the cause and was on the brief for Gena M. Hildinger, appellee.

John M. Wall, Sedan, argued the cause and was on the brief for Mary Faye Holland, appellee.

HATCHER, Commissioner.

This controversy stems from written defenses filed against the executor's petition for final settlement disputing the executor's interpretation of the language of a will.

Laura M. Graves died testate, a resident of Kiowa County, Kansas, November 9, 1965. Her last will and testament was dated July 11, 1955. Due to the specific nature of the controversy we find it necessary to present most of the terms of the will in full. It reads:

'First. I direct that all my just debts, funeral and testamentary expenses, and all transfer, inheritance, legacy, estate or succession taxes, dues or charges, which may be payable on or in respect of any legacy, devise or bequest in this will contained, under any law of the United States of the State or Kansas, which shall be in force at the time of my death, shall be paid by my executor hereinafter named.

'Second. I will and devise to my son, Harlan L. Graves, the following described real property situate in the county of Kiowa and State of Kansas, to wit:

'The North half (N/2) of Section Six (6) in Township Twenty-Nine (29) South, of Range Eighteen (18) West of the 6th P. M. together with my interest in the farm machinery and equipment belonging to said farm.

To Have and To Hold, forever.

'Third. I will and devise to my daughter, Mary Faye Holland, the following described real property situate in the county of Kiowa and State of Kansas, to wit:

'The South half (S/2) of Section Six (6) in Township Twenty-nine (29) South, of Range Eighteen (18) West of the 6th P. M.

To Have and To Hold, forever.

'Fourth. For the express purpose of this will, I direct that the probate court of Kiowa County, Kansas, shall appoint three commissioners, disinterested persons, to make personal view and to appraise at its true value in money, the real property hereinbefore devised in the second and third paragraphs of this will, * * * and when such appraisement has been made by said commissioners that it be reduced to writing and returned to the probate court of Kiowa County, Kansas.

'Fifth. From my personal estate I will and bequeath to my daughter, Gena M. Hildinger, property or money equal to one-half (1/2) of the appraised value of the land hereinbefore described, and this bequest shall be satisfied in the following manner: I have heretofore sold to Clay M. Hildinger and J. D. Baer my interest in the partnership of Graves Lumber and Hardware Company; if at the time of my death the notes evidencing the purchase price and secured by said contract have not been fully paid then I direct that my executor shall transfer and set over to my daughter, Gena M. Hildinger, such a portion of the unpaid notes as shall equal one-half of the appraised value of the section of land above described, and if the unpaid balance of the notes shall not be sufficient to equal one-half of the appraised value of said land then the remainder of value shall be paid in cash to the said Gena M. Hildinger, by my executor.

'Sixth. In the event that the appraisement hereinbefore provided for shall establish a difference in the valuation of the lands devised to my son Harlan L. Graves, and to my daughter Mary Faye Holland, then I direct that my executor shall equalize, in cash, the difference in the values of the land as so determined by said appraisement.

'Seventh. (The residue was left equally to the three beneficiaries.)

'Eighth. (Harlan L. Graves was appointed executor.)

'Ninth. It is my will and I direct that my executor shall have full power and authority to sell any part or portion of my estate not expressly devised or bequeathed by this will, as he may deem necessary, and he is authorized to make and deliver good and sufficient deeds or instruments of transfer therefor.'

The will was duly admitted to probate on December 6, 1965, and Harlan L. Graves was granted letters testamentary. On January 27, 1966, the three appraisers appointed by the probate court returned the inventory and appraisal, valuing the two half sections of land at $44,800.00 each. The balance due on the Hildinger note was shown as $36,600.00.

Gena M. Hildinger filed a petition to appoint three commissioners to appraise the two half sections of land as provided by the will. These commissioners were appointed and on May 23, 1967, they made their return valuing the two half sections at $72,000.00 each.

The petition for final settlement was filed in due time setting forth the above facts and alleged that after the payment of debts, taxes and expenses of administration the money and property remaining was insufficient to equalize the difference between the unpaid balance of the note and one-half the value of the land. The petition prayed that the two half sections of land be assigned to Harlan L. Graves and Mary Faye Holland, free and clear of any claim of Gena M. Hildinger, and that whatever cash and personal property remained after payment of court costs and expenses of administration be set over to Gena M. Hildinger toward the balance due on her legacy.

At the time of the filing of the petition for final settlement it definitely appeared that after the payment of expenses, inheritance and succession taxes there would be no cash from personal property to add to the Hildinger note and so raise Gena M. Hildinger's bequest to equal one-half of the value of the land.

Gena M. Hildinger and Mary Faye Holland filed written defenses to the petition for final settlement. Their contention, stated generally, would require the executor to apply all cash from personal property to Gena's bequest to make it equal to one-half the value of the real estate and charge the debts, expenses and taxes against the three bequests.

The controversy was transferred to the district court for determination and it concluded:

'That applying the rules of construction, the Court concludes from the reading of the entire Will, that it was the intent of Laura M. Graves that each of her three children should receive property from her estate of equal value, with the exception of the farm machinery and equipment bequeathed to Harlan L. Graves.

'That Harlan L. Graves should receive the North Half of Section 6, Township 29 South, Range 18 West and the farm machinery and equipment; that Mary Faye Holland should receive the South Half of Section 6, Township 29 South, Range 18 West.

'That Gena M. Hildinger should receive the note of Clay M. Hildinger having a value of $36,600.00 and in addition should receive cash to equalize the value of property received by Harlan L. Graves and May Faye Holland.

'That there was property other than the two half sections sufficient to equalize the values in accordance with the intention of the testatrix but not sufficient property remaining after such equalization to pay the debts, taxes, administration expenses and any other just charges against said estate.

'That in order to carry out the intention of the testatrix for equalization, and to apply the deficiency required to pay the debts, taxes, administration expenses and other charges, one-third of such deficiency should be deducted from the money which would otherwise be paid to the said Gena M. Hildinger and one-third should be a charge against the real property devised to Harlan L. Graves and one-third should be a charge against the real property devised to Mary Faye...