In re Wenzel's Estate
| Decision Date | 06 July 1946 |
| Docket Number | 36484. |
| Citation | 161 Kan. 545,170 P.2d 618 |
| Parties | In re WENZEL'S ESTATE. v. WHEELER KELLER HAGNY TRUST CO. WENZEL |
| Court | Kansas Supreme Court |
Rehearing Denied Sept. 24, 1946.
Appeal from District Court, Sedgwick County; Ross McCormick, Judge.
Proceeding in the matter of the estate of John Wenzel, deceased, wherein Lela E. Wenzel filed objections to the final accounting of the Wheeler Kelly Hagny Trust Company, executor. From a judg-Trust Company, executor. From a judgment of the district court in favor of the executor after appeals by both parties from the judgment entered in the probate court, Lela E Wenzel appeals.
Judgment of the district court affirmed.
Syllabus by the Court.
1. In a proceeding for approval of the final report of an executor the claim of the widow of the testator that the will should be construed so as to give her a homestead in real estate of her husband, considered and held properly denied.
2. An objection of the widow of testator to the final report of the executor that her consent to the will should be set aside and she should take her husband's estate under the law of descents and distribution, was filed more than nine months after the first published notice to creditors-- held, it was filed too late and cannot be considered.
Austin M. Cowan, of Wichita (Robert H. Nelson, of Wichita, and Ruby Turner Looper and Kittie C. Sturdevant, both of Oklahoma City, Okla., on the brief), for appellant.
W. D Jochems, of Wichita (J. Wirth Sargent, Roetzel Jochems and Robert G. Braden, all of Wichita, on the brief), for appellee.
This appeal involves litigation between decedent's widow and the executor of his estate. Judgment was entered in the probate court in some particulars in favor of the executor and in others in favor of the widow. Both appealed to the district court. Judgment was entered in the district court in favor of the executor. The widow has appealed. Many of the facts are admitted.
John Wenzel and Lela Wenzel were married February 5, 1932. At the time they were married John had conveyed all of his assets to a trust company. The trust deed provided, amongst other things, in the event of John's death, leaving a wife surviving him, for a payment to her of $10,000 or at her option for a payment to her of $100 a month for life or until she should remarry.
On February 2, 1932, three days before they were married John and Lela executed a contract. It provided, amongst other things, for the payment to Lela, provided she should survive John, of $10,000 within a year after John's death or at her option $100 a month for life or until she should remarry, and this payment should be in lieu of any claim to any of John's property to which she might become entitled as his wife but for the contract.
In October, 1938, Lela sued John for divorce. In May, 1939, a divorce was granted to her and she was given alimony in the amount of $7,500. In July of 1939 on application of John a new trial was granted. On July 24, 1939, Lela and John decided to try life together again, whereupon they entered into another contract. This contract revoked the former one, provided for dismissal of the divorce action, gave Lela the right to dispose of her separate property, and provided that John would immediately take steps to provide in the event Lela should survive him as his widow for the payment to her out of his estate of one-half its net appraised value but not to exceed $10,000 and for the payment to her of $100 a month until the $10,000 should be paid. The contract provided further that she was to receive the household furnishings of their living quarters. Lela agreed to accept the above sum in full settlement of all claims she might have against John's estate on account of being his widow.
On November 27, 1939, John made his will. It bequeathed Lela the household furnishings in their living quarters and in addition $10,000 cash and provided that if this sum could not be paid within thirty days after his death, then the executor was to pay her $100 a month until the $10,000 should be paid. On March 7, 1940, Lela executed her consent to the will. It is as follows:
On March 4, 1942, John died. On March 7, 1942, Lela signed a petition for the probate of the will. The petition contained the following statement: 'Attached thereto is also the consent of this petitioner (widow) to the said Last Will and Testament, dated the 7th day of March, 1940, and executed by same attesting witnesses.'
The prayer of the petition read: 'Wherefore, this petitioner (widow) prays that said Last Will and Testament be admitted to record and to probate and that Letters Testamentary issue to the said The Wheeler Kelly Hagny Trust Company.'
The will was admitted to probate on March 17, 1942, and letters testamentary were issued to the appellee.
On September 15, 1942, Lela filed a petition to require the executor to pay her $10,000 without a final receipt. In this petition she referred to the will, stated that the executor had been paying her $100 a month and had offered to pay her $10,000 as a beneficiary under it, if she would sign a receipt releasing it from any further payments, and that the $10,000 was due her as a beneficiary and she should not be required to sign a receipt in full until it could be determined, if determined it should be, that such sum was in full payment.
On September 23, 1942, the probate court made an order allowing this petition. The executor appealed from that order. This appeal was never heard.
On December 10, 1942, Lela filed a motion asking the probate court to set aside her homestead to her. That motion was in the following language: 'Comes now Lela E. Wenzel, the surviving widow and sole heir-at-law of John Wenzel, deceased, and moves the court to require the Executor to set aside to Lela E. Wenzel, as such widow, the apartment building in which the applicant is now residing as her homestead and exempt property under and by virtue of the laws of the State of Kansas and states that she and the said John Wenzel were living therein at the time of his death and that she has continued to reside therein during the time since his death and your applicant further moves the court to require the Executor, the Wheeler, Kelly & Hagny Trust Company, to make an accounting for all rents obtained from the said apartment building and to pay the same to this applicant as exempt income from and since the time of the death of the said John Wenzel.'
It should be stated here that John's estate was considerably in excess of $20,000 and at the time of his death he and Lela were living in one of the apartments of an apartment house that was a part of his estate.
This motion was set for hearing and continued from time to time.
On March 5, 1943, all the parties entered into a stipulation, which reads as follows:
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Younger v. Younger's Estate, 44690
...and the order of final settlement closing Helen's estate are res judicata and binding on the parties herein. (See, In re Estate of Wenzel, 161 Kan. 545, 170 P.2d 618.) At the time Helen died on June 11, 1963, the five-year statute of limitations had not run on the note and mortgage. The que......
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Elliott's Estate, In re
...and extinguished by her written consent to the provisions of her husband's will. On the general subject matter see also In re Estate of Wenzel, 161 Kan. 545, 170 P.2d 618, and the April, 1951 issue of the Kansas Judicial Council Bulletin at p. This brings us, therefore, to the only remainin......
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Kansas Homestead Law
...225 Kan. 177, 187, 589 P.2d 558 (1979); In re Estate of Barnett, 207 Kan. 484, 485 P.2d 1290 (1971). [FN412]. In re Estate of Wenzel, 161 Kan. 545, 557, 170 P.2d 618 (1946). [FN413]. In re Estate of Fawcett, 163 Kan. 448, 452, 183 P.2d 403 (1947). [FN414]. Fawcett, 163 Kan. at 453. See also......