In re Adkin's Estate

• Court: Kansas Supreme Court
• Writing for the Court: SMITH, Justice.
• Citation: In re Adkin's Estate, 167 P.2d 618, 161 Kan. 239 (Kan. 1946)
• Decision Date: 06 April 1946
• Docket Number: 36443.
• Parties: In re ADKINS' ESTATE. v. FOUNTAIN et al. HOUGH et al.

167 P.2d 618

161 Kan. 239

In re ADKINS' ESTATE.

HOUGH et al. v. FOUNTAIN et al.

No. 36443.

Supreme Court of Kansas

April 6, 1946

Rehearing Denied May 10, 1946.

Appeal from District Court, Reno County; Franklin B. Hettinger Judge.

Proceeding in the matter of the estate of Jessie Adkins, deceased wherein Betty Jean Hough and others sought to probate what purported to be the separate will of decedent. In the same proceedings what purported to be a joint will of E. L. and Jessie Adkins was offered for probate by A. S. Fountain and others. The proceedings were consolidated and what purported to be the second will of Jessie Adkins was admitted to probate. The objectants appealed to the district court where the second will was admitted, and from the judgment of the district court, Betty Jean Hough and others appeal.

Reversed with directions.

HARVEY C. J., and WEDELL and HOCH, JJ., dissenting in part, and SMITH, J., dissenting.

Syllabus by the Court.

1. Where a husband and wife made a joint and mutual will wherein each bequeathed to the survivor a life estate in all his property with a provision that the remainder should go to a third person, and one of the testators died and the survivor secured the probate of the will and took under it pursuant to its terms, and the will on its face showed it was made as the result of a contract between the two testators, the property of both passed according to the terms of the joint and mutual will.

2. Where a will such as that described in the first paragraph of this syllabus was executed by two testators and later one of them died and the survivor took under the provisions of the joint will and subsequently made another will by which different bequests were made than were made in the first will, held, that the second will is entitled to probate as the last will of the testator, but there is nothing for it to operate on because all of the property of each testator passed according to the terms of the first will which will be enforced as a contract.

3. In a case where two wills such as described in the foregoing paragraph of this syllabus were executed and both wills were offered for probate and also a request that the first will be enforced as a contract against the property of the testator, it is proper that all matters should be set down for hearing pursuant to G.S.1943 Supp. 59-2225.

4. In a proceeding such as that described in the foregoing paragraph of this syllabus, the proper order is for the probate court to admit the second will to probate but order the first will enforced as a contract.

Max Wyman, of Hutchinson (Erskine Wyman, Aaron Coleman, and Fred Preble, all of Hutchinson, on the brief), for appellants.

H. R. Branine, of Hutchinson (Walter F. Jones, C. E. Chalfant, and J. Richards Hunter, all of Hutchinson, on the brief), for appellees.

SMITH Justice.

This was a proceeding to probate what purported to be the separate will of Jessie Adkins, dated October 18, 1941. In the same proceedings what purported to be a joint will of E. L. and Jessie Adkins under date of October 31, 1939, was offered for probate as the will of Jessie Adkins. Objections and exceptions to probate of the separate will were filed and also proceedings asking that the joint will be probated as the will of Jessie Adkins and if it was not probated that it be enforced as a contract against the property of Jessie Adkins. All these matters were consolidated and after a hearing before the probate court what purported to be the second will of Jessie Adkins was admitted to probate. The parties who objected to the probate of this will and had offered the joint will appealed to the district court where the second will was admitted. The same parties have appealed.

The facts are substantially as follows: E. L. Adkins and Jessie Adkins were husband and wife. On October 31, 1939, they were living together and presented themselves to their lawyer who drew a will which was duly executed by them that day. It will be referred to herein as the joint will. It is headed 'Last Will and Testament of E. L. and Jessie Adkins, Husband and Wife.' Underneath the above appear the words '(Joint Will.)' It is as follows:

'In The Name Of God, Amen, We, E. L Adkins and Jessie Adkins, husband and wife, residing at Lerado, Reno County, Kansas, and both being of sound mind and memory and under no undue influence of any nature or kind, do hereby revoke all former wills by us made, or by either of us, and do make, publish and declare this to be our Joint Will and Testament, as follows:

'First: It is the Will of each that upon the death of either of us this Will shall be proved and probated under it that the just debts and obligations of the deceased be fully paid and discharged and upon the death of the survivor that the debts of the survivor be fully paid from our estates; and if it be necessary in either instance, that any personal property be reduced to cash, then we authorize the Executor so to do;

'Second: Subject to the above and foregoing, we give, bequeath and devise all the remaining estate of the one first deceased to the other as survivor, to have and to hold to the survivor during his or her lifetime, as it may be, with full power to collect, receive and expend rents, income and profits of every nature inuring to the estate of said deceased; and if, in any event, the income from all sources of said survivor be not sufficient for the survivor's needs to keep him or her in comfort and with reasonable luxuries, then the corpus of the estate may be disposed of, only so much thereof as necessary for said purpose; but the personal estate shall be used before any resort is had to the real estate and this power to dispose of any part of our estates for the support of the survivor shall not affect the fact that said estate remains only a life use and income as to the remaining estate;

'Third: Subject to the foregoing provisions, on the death of the said survivor, we give, bequeath and devise the remainder of our estates, as same may be, to our beloved daughter, Betty Jean Weber, to have and to hold all said estate and to receive the rents, income and profits from same until she shall attain the age of forty (40) years, provided she shall first use said rents, income and profits for the education of her children, and secondly, shall use same for her own use and enjoyment as she may see fit, all until the time she attains the age of forty years. It is our Will also that during this time, prior to said Betty Jean Weber, attaining the age of forty years, her children shall share with her, as may be necessary for their comfort and support in the way that she may wish them to do, in addition to their said educational uses, in the said income, rents and profits from said property. At the age of forty years, said Betty Jean Weber shall receive possession and control of all our remaining estate, as same may be at that time, and shall during the remainder of her lifetime use and enjoy same as she may need for herself and said children; but she shall not dispose of or mortgage or encumber in any way any of the real estate of said estates and at her death, we give, bequeath and devise said real estate to her children who may survive her, to be theirs absolutely; but if any child of hers shall be then deceased leaving children, the share that would have been such child's shall inure to the children of such deceased child of Betty Jean Weber. Upon the death of both of us making this Will, an Executor or Administrator shall be appointed who shall take charge of said estate administering same and close said estate, as the Law may provide, under the direction of the Court in due time, and said Executor or Administrator shall become a Trustee upon the discharge of such Executor or Administrator and shall continue to direct and conserve the property of our estates, paying the income of every nature to said Betty Jean Weber under the terms of this will subject to any expenses or reasonable charges said Trustee may make; and at the time said Betty Jean Weber shall be forty (40) years of age, said Trustee shall deliver said estate to her as provided herein.

'Fourth: The survivor of us shall serve without Bond as Executor hereof; but the Executor or Administrator appointed at the death of said survivor to carry out the further terms of this Will shall give good and sufficient Bond to be approved by the Court. Reasonable cmpensation shall be allowed to said Executor or Administrator. In the event that Betty Jean Weber is forty (40) years of age before both of us are deceased, then at the decease of the survivor of us, Betty Jean Weber shall have immediate possession of said estate, under the administration and payment of debts, as same may be, subject to the terms of this Will. Any of our personal estates remaining at the death of our said daughter, shall descend as provided for realty.

'Fifth: We do each of us appoint the survivor of us to act as the Executor of this Will, and to have all the powers necessary to execute said Will under the direction of the Court.

'In Witness Of All the foregoing, we have signed this our Joint will on this 31st day of October, 1939.

'E. L. Adkins

'Jessie Adkins

'The above instrument was at the date thereof signed, published and declared as and for their Joint Will by E. L. Adkins and Jessie Adkins, husband and wife, in the presence of us who at their request and in the presence of each other, have signed as witnesses to the signing of both said husband and wife.'

E. L. Adkins died August 5, 1941. On the petition of Jessie Adkins the joint will was admitted to probate as the last will and testament of E. L. Adkins. She was appointed executrix, took possession of the property and accepted the income and

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