Hoover v. Roberts

• Decision Date: 06 June 1936
• Docket Number: 32858.
• Citation: 58 P.2d 83,144 Kan. 58
• Parties: HOOVER v. ROBERTS et al.
• Court: Kansas Supreme Court

58 P.2d 83

144 Kan. 58

HOOVER v. ROBERTS et al.

No. 32858.

Supreme Court of Kansas

June 6, 1936

Syllabus by the Court.

Where will devised remainder in fee to children with provision that, if children died intestate before execution of will and before life tenant's death, share of deceased child should revert to estate, judgment excising word "intestate" from will, and substituting phrase "without issue," was neither interpretation nor construction of will, but reformation, over which subject-matter district court was without jurisdiction.

Judgment of district court reforming will was void for want of jurisdiction and could be collaterally attacked at any time (Rev.St.1923, 60--3009).

1. The excision of the word "intestate" from a will, and the substitution of the phrase "without issue," constitute neither interpretation nor construction of the terms of the will, but reformation, over which latter subject-matter a district court has no jurisdiction.

2. A judgment, void for want of jurisdiction, may be collaterally attacked at any time.

Appeal from District Court, Washington County; Tom Kennett, Judge.

Suit by James M. Hoover against Charles D. Roberts, Blanche Hyland and others. From an adverse judgment, last-named defendant appeals.

Reversed.

J. R Hyland and H. N. Hyland, both of Washington, Kan., for appellant.

A. J Freeborn and F. R. Lobaugh, both of Washington, Kan., and Charles L. Hunt and Frank C. Baldwin, both of Concordia, for appellee.

WEDELL Justice.

This was a suit in partition. The contesting parties claim title to interests in the real estate through conveyances from devisees under a will. Appellant, defendant below, contended for an undivided one-fifth interest in the real estate, while appellee insisted appellant owned only an undivided one-eighth interest. The answer must be found in the will. The will was duly probated on November 22, 1922. It has not been contested. The will purported to give a life estate in the real estate to the widow of the testator and remainder in fee to eight children, subject to the following provision "And should any of the children, heretofore named, die intestate before the execution of this will, and before the death of my beloved wife, then it is my will that the said share of said deceased child revert to my estate, and be divided among the remaining children as aforesaid."

Three of the children died intestate, prior to the death of the widow and subsequent to the death of the testator. One son died testate. Appellant contends the shares of the three children who died intestate reverted to and became the property of the remaining four living children and the devisees of the son who died testate. Maggie Testerman was one of the three children who died intestate. After her death, her husband executed a mortgage to the First National Bank of Concordia, covering his interest in the real estate. On November 21, 1932, a foreclosure judgment was rendered. In the foreclosure suit plaintiff asked for a construction of the will in order to determine the interest on which it had a lien. The trial court found the husband of Maggie Testerman had an equal undivided one-sixteenth interest. This finding was on the theory each of the eight children of the testator received a one-eighth interest. No appeal was taken from that judgment. All devisees were parties to the action. On May 6, 1935, this partition suit was filed. The trial court held the will was construed in the mortgage foreclosure suit and the interests of the devisees, and those claiming under them, were then finally adjudicated. Appellant contends that judgment was utterly void. The contention is made upon the ground the district court did not interpret or construe, but reformed, the will, and that the district court had no jurisdiction to reform a will. We therefore have three questions presented: First, did the district court in fact reform the will? Second, has it jurisdiction to reform a will? Third, if not, can appellant now collaterally attack the judgment of reformation? The questions will be treated in that order.

The pertinent portion of the petition in the foreclosure suit reads: "That said testator was ignorant and uninformed as to the meaning and purport of the word 'intestate,' which word was inserted in said will by error of the scrivener who was directed by the testator to use language meaning 'without issue' and said scrivener used the word 'intestate' thinking and believing that it meant 'without issue' *** ."

The foreclosure judgment recites: "*** that in that portion of paragraph four hereinbefore quoted, the word, 'intestate,' was inadvertently and by mistake used in said paragraph for and instead of the words, 'without issue,' as was intended by the testator, and the language, 'before the execution of this will,' was intended by the testator to mean before the will was made operative by testator's death."

No extrinsic evidence was necessary for a logical interpretation of the testator's intention, as expressed by the phrase, "before the execution of this will." Clearly the testator did not mean to use the phrase "before execution" as meaning before the making of the will. He must have intended, by the word "execution," the carrying out of the will. That, under the law, was, of course, at his death. It was the only time at which the will could become operative. The trial court in finding this to be the intention of the testator did therefore not transcend the bounds of interpretation or construction of a will.

The remaining portion of the above judgment presents quite a different question. The trial court lifted out of the will the word "intestate." Not only was that term, with a well-defined and clearly understood legal meaning, deleted from the testament, but another phrase of very different meaning, "without issue," substituted therefor. This was done upon extrinsic evidence, ten years after the decree of probate had been entered. The excision of one word and the substitution of another phrase were ordered on the theory of correcting a mistake of intention. It altered the intention of the testator as expressed in the will by a clear well-defined term.

Thompson on Wills (2d Ed.) § 137, states the rule thus: "A court of equity will not reform a will under the guise of an attempt to construe it."

In Morse v. Henlon, 97 Kan. 399, 155 P. 800, it was held: "There is no occasion for employing rules for judicial construction of a will in search of the testator's intention, where such intention is expressed clearly and unequivocally in the instrument." Syl. 1.

To the same effect are Martin v. Martin, 93 Kan. 714, 145 P. 565; Schott v. Schott, 128 Kan. 262, 276 P. 823; National Life Ins. Co. v. Watson, 141 Kan. 903, 905, 44 P.2d 269; Schouler on Wills (6th Ed.) vol. 2, § 857.

In the Schott Case, supra, it was held: "Where the intention of the testator is plainly derivable from the text of the will itself, evidence aliunde is not admissible to establish that intention nor to modify the language of the testament." Syl. 2.

See, also, Schouler on Wills (6th Ed.) vol. 2, § 859.

In Thompson on Wills (2d Ed.) § 137, it is said:

"Where the will as executed differs materially from the testator's instructions and actual wishes, attempts have been made to have the will reformed by courts of equity, but such relief has been regularly refused.

"One reason why a court of equity will not decree reformation of a will by correcting a mistake therein after probate is that such attempted reformation would constitute a collateral attack on the decree of the probate court. Another reason usually assigned, which seems to be sufficient, is that such an action is in the nature of one for specific performance, and requires a consideration for its support--an element lacking in the relations of a testator and beneficiary. Another reason sometimes given for refusing reformation to correct alleged mistakes is that it opens the door to fraud and perjury."

In Regan v. National City Bank of Rome et al., 177 Ga. 686, 170 S.E. 889, 890, it was held: "There is no provision of law in Georgia which authorizes the reformation of a plain, written, legal will. 'All wills must be taken to mean just what the language, considered in the light of the circumstances and situation of a testator, was intended by him to mean. Parol evidence is not admissible to show that the testator meant one thing when he said another."' Syl. 3.

In Sturgis et al. v. Work et al., 122 Ind. 134, 135, 22 N.E. 996, 17 Am.St.Rep. 349, it was said: "It is an established rule that the chancery powers of a court cannot be invoked to reform a will by eliminating words or phrases, and supplying others, so as to make the instrument conform to what may be supposed to have been the real intention of the testator."

See, also, Sherwood v. Sherwood, 45 Wis. 357, 30 Am.Rep. 757; and Page on Wills (2d Ed.) vol. 2, § 1414.

In Page on Wills (2d Ed.) vol. 1, § 809, is contained this concise statement of the rule: "The question always before the mind of the court is, not what should...