In re Kemper's Estate
| Decision Date | 22 January 1944 |
| Docket Number | 36020. |
| Citation | 157 Kan. 727,145 P.2d 103 |
| Parties | In re KEMPER'S ESTATE. v. JOHNSON et al. BRIGGS et al. |
| Court | Kansas Supreme Court |
Rehearing Denied March 10, 1944.
Syllabus by the Court.
Where controlling evidence on issues of fact was written documentary in character or in form of depositions or transcripts, Supreme Court had duty of deciding what the facts established, substantially as it would in an original action.
The statute regulating revocation of wills is mandatory and must be strictly pursued. Gen.St.Supp.1941, 59-611.
To effectuate "revocation of will" a testator must be mentally capable of making a will, and the physical act of revocation must concur with an intention to revoke the instrument. Gen.St.Supp.1941, 59-611.
Cancellation or obliteration of a testamentary devise may be accomplished by drawing of lines through one or more words of the instrument with an intent to nullify it even though original words may still be legible. Gen.St.Supp.1941, 59-611.
If marks of cancellation or obliteration appear upon a will testator's intent in making them, not their extent or character, is the important factor in determining whether there has been a revocation of such instrument. Gen.St.Supp.1941, 59-611.
Intention to revoke testamentary devise may be inferred from nature of the act, condition of the instrument or from extrinsic evidence. Gen.St.Supp.1941, 59-611.
The finding of a mutilated will among effects of a competent testator gives rise to a presumption that the acts of mutilation were performed by testator animo revocandi. Gen.St.Supp.1941, 59-611.
Where mutilated will was found in possession of testatrix' attorney, and it was conceded that such instrument was delivered to attorney by testatrix in the condition it was in when offered for probate, the presumption that acts of mutilation were performed by testatrix animo revocandi was same as if will had been found in testatrix' personal effects. Gen.St.Supp. 1941, 59-611.
Evidence established that mutilations on alleged will were marks of cancellation and obliteration within meaning of statute regulating revocation of wills, and that such mutilations were made by testatrix with intent of revoking alleged will so that instrument was not entitled to prohate. Gen.St.Supp.1941, 59-611.
Mere intention of testator when mutilating will to make a new will at some indefinite time does not prevent "revocation of the will" so mutilated. Gen.St. Supp.1941, 59-611.
1. Where the controlling evidence on issues of fact is written, documentary in character or in the form of depositions or transcripts, it is the responsibility of the court of appellate review to decide what the facts establish, substantially as it would in an original action.
2. The provisions of G.S.1941 Supp. 59-611 providing for revocation of wills are mandatory, they must be strictly pursued and a will cannot be revoked in any other way than that provided for therein.
3. To effectuate the revocation of a will in the manner provided by the statute a testator must be mentally capable of making a will and the physical act of revocation must concur with an intention to revoke the instrument.
4. Cancellation and/or obliteration of a testamentary devise may be accomplished by the drawing of lines through one or more words of the instrument with an intent to nullify it even though the original words may still be legible.
5. If marks of cancellation and/or obliteration appear upon a will, the intent of the testator in making them, not their extent or character, is the important factor in determining whether there has been a revocation of such instrument.
6. Intention to revoke a testamentary devise may be inferred from the nature of the act, the condition of the instrument or from extrinsic evidence.
7. The finding of a mutilated will among the effects of a competent testator gives rise to a presumption the acts of mutilation were performed by the testator animo revocandi.
8. Where a mutilated will is found in the possession of a testator's attorney, and it is conceded such instrument was delivered to him by such testator in the condition it was in when offered for probate, possession of the attorney is that of the testator and the presumption of revocation animo revocandi is the same as if the will had been found in the testator's personal effects.
9. The mere intention of a testator when mutilating a will to make a new will at some indefinite future time does not prevent the revocation of the will so mutilated.
10. In a proceeding to probate a mutilated will the record is examined and held: (a) Mutilations on the will were marks of cancellation and obliteration within the meaning of the language used in G.S.1941 Supp. 59-611, (b) such mutilations were made with the intent and for the purpose of revoking the will, (c) since the will had been revoked it was not entitled to probate.
Appeal from District Court, Shawnee County, Division No. 1; George A. Kline, Judge.
Judgment of District Court reversed.
James A. McClure, of Topeka (Robert Stone, Robert L. Webb, Beryl R. Johnson and Ralph W. Oman, all of Topeka, on the briefs), for appellants.
Guy B. Park, of Kansas City, Mo. (Frank E. Miller, of Topeka, on the briefs), for appellees.
This is an appeal from the judgment of the district court of Shawnee County admitting to probate a certain instrument purporting to be the last will and testament of Grace G. Kemper, deceased, and reversing the probate court of that county in the latter's refusal to admit such instrument to probate.
On July 29, 1942, Grace G. Kemper, a widow, died a resident of Shawnee County, Kansas. Within a short time thereafter a petition for the probate of a will executed by her on June 1, 1942, was filed in the probate court of the county in which she had died a resident. It is conceded by all parties such will was properly executed by the testatrix on the date alleged and that she had sufficient mental capacity and was not under duress at the time of the execution thereof. When the will was offered for probate certain markings, presently referred to in detail, appeared thereon. It is also conceded those marks were made by Mrs. Kemper.
The will in question was prepared for Mrs. Kemper by George Wark, an attorney of Caney, and consisted of 4 pages. Omitting formal portions thereof, it contained 13 paragraphs, 11 of which had at no time been marked or changed in any manner by the testatrix.
Referring now to the unchanged portions of the will and their contents, paragraphs I, II and III provided for the revocation of all former wills and directed the place of burial of testatrix and payment of her debts and funeral expenses. Paragraphs IV, V, VI, VII and VIII were dispositive in character and by their terms bequeathed small amounts of money, amounting in all to the total sum of $77, to divers relatives and friends of the decedent and to certain fraternal organizations.
The markings heretofore referred to were made by testatrix with both pencil and pen and affected paragraphs IX and X of the original instrument, also the signatures of the attesting witnesses thereto. Inasmuch as such markings gave rise to this lawsuit and they are not in such form as to make them susceptible of accurate verbal decription we have caused the marked portions of the original will to be reproduced and incorporated in this opinion.
Paragraphs IX and X with the signatures of the attesting witnesses, together with all markings thereon, as they appeared when the original will was offered for probate follow:
(Image Omitted)
Since it is conceded the will as originally executed would have been entitled to probate had it not been for the markings placed thereon by testatrix subsequent to its execution, reference to evidence offered by the parties will be restricted to that pertaining to the changed condition of the will.
In the probate court, parties seeking to probate the will produced George Wark as a witness who testified in substance as follows: Shortly before its preparation he had a conversation with Mrs. Kemper, who told him what she wanted in her will; in that conversation he received the impression her people had received their share or that they (Mr. and Mrs. Kemper) had helped her people and had never done anything for his people; he took notes of what Mrs. Kemper desired and went to Caney, where he prepared a scratch copy, and then sent it to her at Topeka with instructions to mark between the lines if she desired any changes; she returned the copy in practically the same condition and he thereupon drafted the original will which he mailed to her for execution; about June 26, 1942, he received a letter from Mrs. Kemper (Exhibit 2) and enclosed in it was her original will; he replied on June 26 (Exhibit 3); on June 30, he received another letter from Mrs. Kemper (Exhibit 4); on July 6 he replied (Exhibit 5); receiving no reply he mailed her another letter on July 27 (Exhibit 6) to which he received no reply; when returned to him by Mrs. Kemper on June 26, 1942, the pen and pencil markings on paragraphs IX and X and markings through the two signatures at the bottom of page 4, appeared on the will; he received the will in the condition it was in when offered for probate.
To complete Mr. Wark's testimony there should be added the following information which details the pertinent portions of the correspondence referred to by him:
Exhibit 2 directs action and reads:
Exhibit 3 requests information and states:
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