Hein v. Hein

• Decision Date: 18 July 1967
• Docket Number: No. 41510,41510
• Citation: 431 P.2d 316
• Parties: Larry James HEIN and Wanda Jean Hein Van Camp, Plaintiffs in Error, v. Walter Lee HEIN, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 316

431 P.2d 316

1967 OK 163

Larry James HEIN and Wanda Jean Hein Van Camp, Plaintiffs in Error, v. Walter Lee HEIN, Defendant in Error.

No. 41510.

Supreme Court of Oklahoma.

July 18, 1967.

Rehearing Denied Sept. 12, 1967.

Syllabus by the Court

1. Generally testamentary dispositions are presumed to take effect, or vest, upon death of the testator.

2. The object and prime purpose in the construction of any will is to arrive at and give effect to the intention of the testator; and in ascertaining such intention the will is to be considered as a whole and the several provisions thereof in their relation to one another.

Appeal from District Court of Ellis County; Charles M. Wilson, Judge.

Action by plaintiff, devisee of remainder over after life estate to quiet title. Judgment for plaintiff and defendants appeal. Affirmed.

Sparks, Boatman & Rizley, Bryan Billings, Woodward, for plaintiffs in error.

Marshall Word, Arnett, for defendant in error.

PER CURIAM:

This appeal presents the question whether adopted children come within a class created by testamentary disposition of a life estate with the remainder over in equal shares to 'the children' of the life tenant? The question evolves out of the trial court's judgment in plaintiff's favor in an action brought to quiet title to certain real property.

Charles B. Hein, a widower, was the father of two sons. One, James C. Hein, was the natural father of Larry James Hein and Wanda Jean Hein, who were the defendants in the trial court. The other, Willie C. Hein, was the natural father of Walter Lee Hein, plaintiff in the trial court. In 1948 defendants' mother divorced their natural father (James), and in 1949 married his brother, Willie C. Hein.

On March 27, 1951, Charles B. Hein made testamentary disposition of his affairs. Under terms of the will both sons and the plaintiff (grandson) received specified real and personal property. Testator also devised a life estate in a described tract of land, under conditions not here material, to James C. Hein with the remainder in fee simple 'unto the children of James C. Hein, in equal shares.' An identical provision involving another tract gave a life estate to Willie with the remainder to his children in equal shares.

Following testator's death, September 3, 1952, the estate was administered upon and a final decree and order of distribution entered March 25, 1953, by the Ellis County Probate Court. Under the provisions of the decree specific real property was set over to the named devisees in accordance with the provisions of the will, who took possession of their properties.

In an adoption proceeding in the County Court of Ellis County, wherein their father (James) filed written consent, the defendants were adopted by Willie C. Hein on July 7, 1954, and thereafter made their home with the adoptive father. Subsequently (January 30, 1960) James Hein died, and their adoptive father died December 20, 1963.

Following Willie Hein's death the plaintiff, his natural son, brought the present action to quiet title. The petition alleged termination of the life estate granted by testator; and that plaintiff was the sole child of the life tenant and entitled to the remainder in fee simple, as against any and all claims of defendants.

Defendants answered admitting Willie C. Hein, the life tenant, died intestate leaving plaintiff as his natural born son. Defendants alleged, however, that by adoption they were lawful children of their father with all rights of natural children; that in making his will the testator contemplated that Willie Hein might have other natural or adopted children who would be living at the time of his death and who would share in the remainder estate; that upon his death defendants were among the children of Willie Hein and entitled to equal shares in the property, and an undivided one-third interest therein should be quieted in each defendant.

The matter was tried to the court and submitted upon briefs for consideration. The trial court rendered findings of fact and conclusions of law by written memorandum. After determining the facts, as to which there was no controversy, the court found the basis problem to be that of determining the testator's intent in execution of the will.

The trial court found that the reasoning upon which we based the conclusion stated in Re Ware's Estate, Okl., 348 P.2d 176, was decisive of the issues. This reasoning, when applied to the facts of the instant appeal, clearly shows that the Uniform Adoption Act of 1957, 10 O.S.1961, § 60.16, cannot be considered in determining the question of the intention of a testator who executed a will and died prior to adoption of that Act. The trial court also found that our holding in Conville v. Bakke, Okl., 400 P.2d 179, had not changed the rule, since that case is distinguishable upon the facts, and the decision was based specifically upon a recognized exception to the general rule.

The court determined that the testator recognized and considered plaintiff as the son of Willie Hein, and the two defendants as children of James Hein, and intended to provide for them in such classes in his will. Judgment was rendered for plaintiff in conformity with these findings and conclusions.

The principal contention on appeal is that defendants are entitled to inherit under the terms of the will involved as children of their adoptive father. The supporting argument is advanced under four subdivisions, which need not be considered separately. The issue is determinable under the law relating t adopted children as it existed prior to the 1957 adoption of the Uniform Adoption Act, supra. Thus, the only relevant inquiry concerns the testator's intention at the time the will was executed. No questions involving the rights of adopted children to inherit under the statutes of descent and distribution arise in the instant case.

Before turning to other matters it must be noted that our holding in Conville v. Bakke, Okl., 400 P.2d 179, does not support much of the argument advanced by defendants. In that case the result expressly was confined to a situation wherein the testator had specific knowledge of and approved an adoption which occurred prior to the execution of the will. This constituted an exception to the general rule, and effected no change in applicable law as respects these defendants' position. This is true particularly as respects defendants' argument that the 'children' of Willie Hein were to be determined as of the date of his death, rather than upon death of the testator.

A will is ambulatory during the maker's life, and speaks only from and after death of the testator. In re Daniels' Estate, Okl., 401 P.2d 493. The cardinal principle governing construction of wills is to ascertain and give effect to the testator's intention. Thus the nature, character, and extent of the estates devised are determined upon the basis of the testator's intention as ascertained from the instrument itself. Franklin v. Margay Oil Corp., 194 Okl. 519, 153 P.2d 486. In resolving any ambiguity or uncertainty as to the testator's intention consideration may be given to surrounding circumstances. Noble v. Noble, 205 Okl. 91, 235 P.2d 670, 26 A.L.R.2d 1200.

In ascertaining the testator's intention certain presumption may be indulged. 57 Am.Jur., Wills § 1157. One presumption is that the testator is presumed to have known the law in effect at the time of execution of his will. Id., § 1162; In re Daniels' Estate, supra. As to whether testamentary disposition to 'children' included an adopted child, the...