Jones' Estate, In re
| Decision Date | 09 December 1961 |
| Docket Number | No. 42392,42392 |
| Citation | 366 P.2d 792,189 Kan. 34 |
| Parties | In re ESTATE of Charles W. JONES, Deceased. David W. JONES and Maxine E. Johnson, Appellants, v. Lloyd C. BLOOMER, Administrator, C.T.A. of the Estate of Charles W. Jones, Deceased; Bessie E. Jones and Wilbur Sherbondy, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
In an appeal in a probate proceeding where the executor of decedent's estate seeks construction of a joint will executed by decedent husband and his wife, both having children by prior marriages, where the construction had to do with the interest the surviving wife received under the joint will at the time of the death of her husband, as more fully narrated in the opinion, it is held: (1) The will was joint, mutual, and contractual; (2) the surviving widow received a life estate in the jointly owned property, real, personal, and mixed, with power of disposal for her necessities, and (3) at her death the remaining property is to go to the three named children of the parties, share and share alike.
Richard M. Driscoll, Russell, argued the cause, and Jerry E. Driscoll, Russell, was with him on the briefs for appellants.
Robert Osborn, Stockton, argued the cause and was on the briefs for appellees.
This action was commenced in the probate court of Osborne county on June 30, 1959, by petition filed by Bessie E. Jones for probate of an instrument denominated the joint last will and testament of Charles W. Jones and Bessie E. Jones, which reads:
'We, Charles W. Jones, and Bessie E. Jones, husband and wife, of sound mind and memory, do hereby make and declare this to be a joint and Last Will and Testament, and we hereby revoke any and all other wills that may have been made by us prior to this date, September 21-1948.
'First at our deaths we wish all of our lawful debts paid from any property possessed by the survivor.
'Second, at the death of either of the testators herein named, all property possessed by the deceased shall and is hereby bequeathed to the survivor, absolutely and without reservations, and at the death of the survivor, it is the will and wish of both testators herein that all property thus possessed shall then be divided equally between our three children or their heirs, as follows: Wilbur Sherbondy, David W. Jones, and Maxine E. Johnson.
'In testimony hereof we have hereunto subscribed our names this the Twenty-First Day of September, A.D. 1948, in the presence of the attesting witnesses who saw us subscribe our names hereto and they have signed as witnesses in our presence and in the presence of each other, the year and day above written.'
The petition showed the death of Charles had occurred on June 4, 1959, and asked for appointment of Lloyd C. Bloomer as administrator C. T. A. On July 31, 1959, the probate court admitted the will to probate and appointed Bloomer administrator C. T. A. thereof but limited the will to personal property. Bond was set in the amount of $6,500.00. Inventory and appraisal of both real and personal property of Charles was filed by Bloomer on August 7, 1959.
On August 27, 1959, Maxine E. Johnson and David W. Jones, children of Charles by a prior marriage, perfected their appeal to the Osborne district court where, on June 27, 1960, the district court found, from the evidence of Bessie and from that of the only surviving attestation witness to the will, that the will was the valid and joint last will and testament of Charles and Bessie and had been properly admitted to probate; that Bloomer was a fit and proper person to be appointed administrator C. T. A., and remanded the estate to the probate court for completion of administration thereof, which in effect ordered probation of the will without limitation as to the property to be administered.
Bloomer filed a petition for construction of the will and for final settlement on August 13, 1960. On September 10, 1960, David and Maxine filed their answer, objections and defenses thereto and the issues were thus joined as follows:
1. Did the will cover both real and personal property?
2. What estates did the will give to Bessie, to Wilbur Sherbondy, decedent's stepson, and to David and Maxine, his son and daughter?
David and Maxine also filed a petition for transfer to the district court on September 10, 1960, which request was consented to by Bloomer and his counsel on September 12, 1960.
Trial was had on September 30, 1960, and the court in its journal entry of judgment dated November 18, 1960, made findings of fact and conclusions of law. The findings repeated substantially the facts referred to herein. The trial court made two conclusions of law but we are here concerned only with No. 1 which reads:
Following the conclusions of law, the trial court made further findings as to amounts allowable as reasonable attorney fees in this case. Such fees were allowed and no objection is here made thereto. The trial court further ruled as a matter of law that Bloomer should deliver the balance of the personal property in the estate to Bessie and that the real estate be assigned to her 'subject to any lawful disposition thereof heretofore made.'
Motion for new trial was filed but according to our long established rule in cases where an action is submitted to the trial court for judgment upon a record from a lower court, such motion is neither necessary, proper or essential (In re Estate of Weidman, 181 Kan. 718, 723, 314 P.2d 327, and cases cited therein) and, therefore, the ruling on that motion will not be treated. Maxine and David thereafter perfected their timely appeal to this court.
The parties agree the sole question to be determined on appellate review, under the instrument thus far denominated the joint last will and testament of Charles and Bessie, is the interest Bessie received in the property, real, personal, and mixed, at the death of Charles.
We shall approach the problem in the same manner the parties treated it in their briefs. First, we are called upon to construe the intention of the testators at the time they made the instant will. More than a cursory reading of any written instrument is necessary to reveal the meaning of the words therein contained and...
To continue reading
Request your trial
-
Estate of Draper v. Bank of America, N.A.
...this court has construed that language imposed a life estate with power of disposition for necessities. E.g., In re Estate of Jones, 189 Kan. 34, 366 P.2d 792 (1961) (life estate created by stating that "at the death of the survivor, it is the will and wish of both testators herein that all......
-
Baldwin v. Hambleton
...426, 320 P.2d 775; Johnston v. Gibson, 184 Kan. 109, 334 P.2d 348; In re Estate of Taylor, 185 Kan. 523, 345 P.2d 1028; In re Estate of Jones, 189 Kan. 34, 366 P.2d 792; Parsons v. Smith, Trustee, 190 Kan. 569, 376 P.2d The cardinal rule for the construction of a will is to ascertain the in......
-
Graves' Estate, In re
...104, 244 P.2d p. 236.) For later decisions see In re Estate of Freshour, 185 Kan. 434, 345 P.2d 689, 81 A.L.R.2d 806; In re Estate of Jones, 189 Kan. 34, 366 P.2d 792; Parsons v. Smith, Trustee, 190 Kan. 569, 376 P.2d 899; In re Estate of Anderson, 203 Kan. 900, 457 P.2d 67, this day Those ......
-
Ciochon's Estate, Matter of
...of all of the language used in the entire will, the court must determine the intention the testator had . . . ." In re Estate of Jones, 189 Kan. 34, 36, 366 P.2d 792, 794 (1961). One joint tenant cannot, without the consent of the other, dispose of his interest in the joint property by will......