Harper's Estate, In re
| Citation | 202 Kan. 150,446 P.2d 738 |
| Decision Date | 09 November 1968 |
| Docket Number | No. 45356,45356 |
| Parties | In the Matter of the ESTATE of Rosa C. HARPER, Deceased. Elizabeth Harper HOOD, Margaret Harper Snow, Carolyn H. McGuire, Karen Dooley Bower, and Peter Chamberlin Dooley, Appellants, v. The LAWRENCE NATIONAL BANK, Lawrence, Kansas, Executor of the Estate of Rosa C. Harper, Deceased, Appellee. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court
1. The law of Kansas gives to every person competent to do so, the right to make a will and to select someone in whom he has confidence to execute it. The privilege to make a will would be a barren privilege if it did not extend to probate.
2. Our statute (K.S.A. 59-618, 59-620, 59-621) express a clear legislative intent that the will of every person shall be offered for probate, and they decree there is a clear public policy in the establishment of every legally executed will.
3. A person named as executor in a decedent's will is qualified under K.S.A. 59-2221 to file a petition for the probate of the will, and it is the duty of such person to present the will for probate and endeavor to procure its admission.
4. Family settlement agreements are favorites of the law and beneficiaries under a will have the right and power to agree among themselves upon a distribution of the estate in accordance with or in a manner different than that provided in the will or to abrogate the will, and such agreements containing the mutual promises of the contracting parties are based upon a sufficient consideration.
5. There are at least two exceptions limiting the rule permitting family settlement agreements. First, beneficiaries under a will cannot defeat a trust or specific restrictions placed property in the testator's will, and second, such an agreement may not deprive one not a party thereto of his interest in the estate or prejudice the rights of nonconsenting creditors of the estate.
6. In a probate proceeding on a petition for probate of a will, the inquiry is limited to the single question whether such instrument is entitled to probate. A family settlement agreement executed by all the beneficiaries under the will and filed in the probate court to withhold the will from probate is not a valid or proper defense to that probate proceeding, and the probate court lacks power and authority at the hearing of such petition to approve such an agreement and thereupon determine the rights of the heirs at law entitled to the estate, or determine the administration of the estate in a manner different than that provided in the will. Such beneficiaries are interested parties in the estate and may at a proper time commence a probate proceeding for the approval of the family settlement agreement by the probate court.
George K. Melvin and Raymond F. Rice, Lawrence, and James W. Paddock, Lawrence, on the brief, for appellants.
Forrest A. Jackson, Lawrence, on the brief, for appellee.
The appeal is from the district court's judgment that the order of the probate court admitting the last will and testament of Rosa C. Harper, deceased, to probate in Douglas County and appointing the Lawrence National Bank, Lawrence, Kansas, as executor, was not only proper, but required.
Rosa C. Harper duly executed her last will and testament in Douglas County on October 12, 1962, and named the Lawrence National Bank as her executor to serve without bond. She devised her estate, after payment of debts and other expenses, to her three daughters and two grandchildren, being children of a deceased daughter, who were all of age and who resided outside the state of Kansas.
On October 4, 1967, the testatrix died, leaving as her entire estate personal property of the estimated value of $150,000. The estate contained no real estate, and was free from debt.
On October 6, 1967, the decedent's three surviving daughters wrote the bank that they were cognizant of the will their mother executed on October 12, 1962, in which she named the bank as executor of her estate, and that:
'We hereby request That Lawrence National Bank to retain Robert B. Oyler as attorney for the bank in the probating of the will and handing of her estate.'
Thereafter, on October 20, 1967, the bank's reply to their letter of October 6, 1967, requesting it retain Robert B. Oyler as attorney in the probating of their mother's estate reads in part as follows:
'The policy of the Lawrence National Bank is to retain the attorney who prepared the will, which in this case is Forrest A. Jackson, Lawrence, Kansas.'
On October 23, 1967, the bank filed its verified petition in the probate court to probate the will of Rosa C. Harper, deceased, and for its appointment as executor, and, among other things, alleged the following:
'That the said Rosa C. Harper left surviving as her sole and only heirs at law the following:
'Elizabeth Harper Hood, a daughter;
'Margaret Harper Snow, a daughter;
'Carolyn Harper McGuire, a daughter;
'Karen Dooley Bower, a granddaughter; and,
'Peter Chamberlin Dooley, a grandson.
'That the decedent had no spouse or children or adopted children or issue of deceased children, natural or adopted, who survived her, other than the persons above named.'
It further alleged that the decedent's original will was in the possession and custody of Robert B. Oyler, which necessitated attaching a copy thereof to its petition. The petition was set for hearing on November 16, 1967, at 10:00 a. m. and notice by publication and by mail was duly given.
On November 14, 1967, Mr. Oyler was served with a subpoena duces tecum in which he was commanded to appear before the probate court on November 16, 1967, with the decedents' original will. On that date, Mr. Oyler produced the will and it was filed in the probate court.
On November 10, 1967, all of the beneficiaries named in the decedent's will filed written defenses and objections to the bank's petition alleging, among other things, that they were the sole and only heirs at law of the decedent; that as her sole heirs at law each would take a share of her estate under the statutes of descent and distribution in exactly the same proportions as devised in the will; that there were no creditors of the estate and all bills owing had been paid; that as the beneficiaries and decedent's sole heirs at law, they had arrived at a full and complete family settlement agreement for the distribution of the estate; that the family agreement had been reduced to writing and signed by all the heirs, devisees and parties in interest; that the property of the estate consisted solely of personal property and there was no necessity or reason for probating or administering the estate; that all parties in interest had agreed that the estate should not be probated or administered and that the last will and testament of Rosa C. Harper, deceased, should not be admitted to probate. A copy of the family settlement agreement was attached to the pleading and made a part thereof, and it was further alleged all that was necessary as far as the decedent's estate was concerned was a finding of descent at the end of one year after her death. The prayer was that the court refuse probate of the decedent's will and dismiss the bank's petition for probate.
The instrument attached to the beneficiaries' defenses and objections to admitting th will to probate was entitled 'AGREEMENT' and reads:
'WHEREAS, Rosa C. Harper, also known as Rosa Chamberlain Harper, died in Kansas City, Missouri, on October 4, 1967; and
'WHEREAS, Rosa C. Harper left as her sole heirs at law the following named persons, all of legal age:
'Elizabeth Harper Hood, her daughter;
'Margaret Harper Snow, her daughter;
'Carolyn Harper McGuire, her daughter;
'Karen Dooley Bower, her granddaughter;
'Peter Chamberlain Dooley, her grandson,
the last two named persons being children of Helen Harper Dooley, a predeceased daughter of Rosa C. Harper; and
'WHEREAS, under the laws of descent and distribution of the State of Kansas, the estate of Rosa C. Harper would descend to the following named persons in the following proportions:
'Elizabeth Harper Hood, an undivided one-fourth;
'Margaret Harper Snow, an undivided one-fourth;
'Carolyn Harper McGuire, an undivided one-fourth;
'Karen Dooley Bower, an undivided one-eighth;
'Peter Chamberlain Dooley, an undivided one-eighth; and
'WHEREAS, the said Rosa C. Harper left a last will and testament, dated October 12, 1962, and by the terms of her said will, she devised and bequeathed her property as follows:
'Elizabeth Harper Hood, an undivided one-fourth;
'Margaret Harper Snow, an undivided one-fourth;
'Carolyn Harper McGuire, an undivided one-fourth;
'Karen Dooley Bower, an undivided one-eighth;
'Peter Chamberlain Dooley, an undivided one-eighth,
which is exactly the same distribution that the heirs of Rosa C. Harper would take under the laws of descent and distribution of the State of Kansas; and
'WHEREAS, Rosa C. Harper owned no real estate at the time of her death, and all of the assets of her estate are liquid assets, consisting of stocks, bonds, cash and savings accounts; and
'WHEREAS, all of the debts of Rosa C. Harper have been paid in full; and
'WHEREAS, Rosa C. Harper was a resident of Douglas County, Kansas, at the time of her death; and
'WHEREAS, there is no necessity to probate the will of Rosa C. Harper in order to determine state inheritance tax or federal estate tax; and
'WHEREAS, the heirs of Rosa C. Harper will save several thousand dollars by not probating the will of Rosa C. Harper;
'NOW, THEREFORE, it is agreed as a family settlement by and between all of the heirs, devisees and legatees of Rosa C. Harper, deceased, as herein named, in consideration of the mutual agreement of the parties hereto and of the additional amount of several thousand dollars which will be available for distribution to them by reduction of the probate court costs and expenses of administration under the procedure hereinafter...
To continue reading
Request your trial
- In re Estate of Strader
- In re Estate of Strader
- Estate of Wise, Matter of
-
Helitzer v. Helitzer, s. 83-1055
...761 F.2d 582 ... Elinor HELITZER, as Executor of the Estate of Bernard ... Helitzer, Deceased, Plaintiff-Appellee/Cross-Appellant, ... Melvin HELITZER, Defendant-Appellant/Cross-Appellee ... Nos. 83-1055, ... ...
-
Wills and the Six-month Deadline
...[5]In re Estate of Tracy, 36 Kan. App. 2d 401, 140 P.3d 1045 (2006). [6]Id. At 407. [7]Id. at 407-08 (citing In re Estate of Harper, 202 Kan. 150, 158, 446 P.2d 738 (1968)). [8]Id. at 408. [9]Id. [10]Id. [11]40 Kan. App. 2d 824, 196 P.3d 402 (2008). [12]Id. at 826. [13]Id. at 828. [14]Id. a......