Long v. Buehler

• Court: Kansas Court of Appeals
• Writing for the Court: Before FOTH; MEYER
• Citation: Long v. Buehler, 648 P.2d 270, 8 Kan.App.2d 23 (Kan. App. 1982)
• Decision Date: 29 July 1982
• Docket Number: No. 53495,53495
• Parties: Fredya T. LONG, Appellant, v. Charles L. BUEHLER, Devisee and Legatee, John Frank Buehler and Glen Rolfs, Executors of the Estate of Sara Remmert, Deceased, Appellees.

Page 270

648 P.2d 270

8 Kan.App.2d 23

Fredya T. LONG, Appellant, v. Charles L. BUEHLER, Devisee and Legatee, John Frank Buehler and Glen Rolfs, Executors of the Estate of Sara Remmert, Deceased, Appellees.

No. 53495.

Court of Appeals of Kansas.

July 29, 1982.

Syllabus by the Court

1. Whether a joint and mutual will is contractual is a question of fact. When such a determination is made from the will itself, however, the appellate court is in as good a position to make the determination as the trial court.

2. The factors to be considered in determining whether a will is contractual are: (1) A provision in the will for a distribution of property on the death of the survivor; (2) a carefully drawn provision for the disposition of any share in case of a lapsed residuary bequest; (3) the use of plural pronouns; (4) joinder and consent language; (5) the identical distribution of property upon the death of the survivor; (6) joint revocation of former wills; and (7) consideration, such as mutual promises.

3. The effect of a joint, contractual will between husband and wife is the creation of a binding, enforceable obligation upon the survivor who takes under the will to distribute the survivor's estate in accordance with the terms of the contractual will.

4. Where, as in this case, the survivor in a joint and contractual will is given the power of "use and disposal" of the property subject to the will, "as he or she may deem right and proper," this creates in the survivor the power to alienate such property for adequate consideration. Thus, where the survivor, as here, contracts to devise certain realty other than as provided in the joint and contractual will, and where, as here, such contract is supported by adequate consideration and full performance has been rendered by the other party thereto, such realty passes not under the joint will, but instead pursuant to the contract.

John F. Hayes of Gilliland, Hayes, Gilliland & Dillon, P. A., Hutchinson, for appellant.

Don C. Foss, Great Bend, and Granville M. Bush, Lyons, for appellees.

Before FOTH, C. J., and REES and MEYER, JJ.

MEYER, Judge:

The question here concerns a joint and mutual will-whether same is contractual; if so, what is the extent of the survivor's power of disposition.

Oscar Remmert and Sara Remmert, husband and wife, executed a joint will on February 28, 1966. Appellees herein claim this will is contractual. The two most pertinent parts of said will are found at paragraphs five and eight thereof. The fifth paragraph gave specific shares of the survivor's estate to various persons, while the eighth paragraph declared that certain property would pass to the survivor of the two of them (Oscar and Sara) for the "use and disposal of the survivor as he or she may deem right and proper, and all of the estate and property, real, personal and mixed of the survivor not disposed of by such survivor is hereby devised and bequeathed in the manner and according to the devises and bequests made in paragraph 'FIFTH'."

Oscar Remmert died on March 12, 1966; the aforementioned will was admitted to probate and his estate was administered to a conclusion.

Sara Remmert died on September 1, 1980. Fredya T. Long, Sara's housekeeper-companion, is appellant herein. The appellees are the executors of, and the devisees and legatees named in, the Remmert will.

In March 1978, Sara Remmert employed appellant as her housekeeper and companion at a wage of $85 per week; this wage was soon increased to $200 per week, which amount appellant received for her services until Sara Remmert's death in September 1980. Meanwhile, on July 3, 1979, Sara Remmert and appellant executed a written contract of employment wherein Sara agreed to leave appellant the Remmert home in Lyons, Kansas, in return for appellant's continued service. At that time or shortly thereafter, Sara Remmert also executed a codicil to the Remmert will, directing the executors to issue a deed to the home to appellant, provided the terms of the employment contract had been complied with. The purpose of this contract was to provide for continued care and companionship for Sara, to provide for her welfare and best interests and to maintain her comfortable lifestyle.

Following Sara Remmert's death, the Remmert will was again admitted to probate. Appellant filed a claim with the estate, based on the employment contract, in which appellant claimed ownership of the home. The court below held a hearing on appellant's claim and ruled that the 1966 Remmert will was contractual in nature, and therefore the home could not pass to appellant under the codicil to that will. That court did, however, also find as fact that the attempt to devise the home to appellant by codicil was not the result of undue influence; that appellant had fully complied with the terms of the contract of employment; that the home, though previously held in joint tenancy by Oscar and Sara Remmert, lost its joint tenancy nature by reason of the Remmert will; that the home passed according to such will; and that appellant had been fully compensated for her services under the contract, by means of the salary payments to her.

The first issue is whether the court erred in finding that the joint and mutual will was contractual.

Whether a joint and mutual will is contractual is a question of fact. When such a determination is made from the will itself, however, the appellate court is in as good a position to make the determination as the trial court. In re Estate of Ciochon, 4 Kan.App.2d 448, 451, 609 P.2d 177, rev. denied 228 Kan. 806 (1980). Factors to be considered in determining whether a will is contractual were set forth by this court in the case of In re Estate of Zahradnik, 6 Kan.App.2d 84, 91, 626 P.2d 1211 (1981). They are:

"(1) A provision in the will for a distribution of property on the death of the survivor;

(2) a carefully drawn provision for the disposition of any share in case of a lapsed residuary bequest;

(3) the use of plural pronouns;

(4) joinder and consent language;

(5) the identical distribution of property upon the death of the survivor;

(6) joint revocation of former wills; and

(7) consideration, such as mutual promises. Reznik v. McKee, Trustee, 216 Kan. (659) at 674-78 (534 P.2d 243); In re Estate of Thompson, 206 Kan. (288) at 291 (478 P.2d 174); In re Estate of Chronister, 203 Kan. (366) at 369-71 (454 P.2d 438); In re Estate of Wade, 202 Kan. (380) at 390 (449 P.2d 488)."

The effect of a joint, contractual will between husband and wife is the creation of a binding, enforceable obligation upon the survivor who takes under the will to distribute the survivor's estate in accordance with the terms of the contractual will. In re Estate of Duncan, 7 Kan.App.2d 196, Syl. P 3, 638 P.2d 992, rev. denied 231 Kan. --- (March 2, 1982).

Here, the pertinent provisions of the Remmert will render that will contractual in nature. Specifically, the will provides for distribution of the property on the death of the survivor (paragraphs five and eight), disposes of shares in case of possible lapse (paragraph six), uses plural pronouns in each paragraph, contains language indicative of joinder and consent of Sara and Oscar (opening paragraph), disposes of specific property identically upon the death of the survivor (paragraphs five and eight), jointly revokes former wills (opening paragraph), and states the consideration exists through the making of the will (opening paragraph). We conclude the trial court did not err in finding the will to be contractual.

The appellant states the remaining three issues as follows:

"2. Did the Court err in finding that the Appellant-Petitioner, Fredya T. Long, was fully compensated for her services under the contract of employment?

"3. Did the Court err in denying the claim of Appellant-Petitioner, Fredya T. Long, under the contract of employment?

"4. Did the Court err in failing to rule that the Remmert residence devolved to Appellant-Petitioner, Fredya T. Long, under the codicil dated July 3, 1979 and the contract of the same date?"

Actually, appellant briefs and argues these three issues under one theory of the case, i.e., that the home was to be given to appellant as part of her compensation for service to Sara Remmert. It is appellant's claim that she is entitled to the home in addition to the money wages she received. She argues that the agreement to transfer the home was supported by adequate consideration, and was not merely a testamentary gift, because she fulfilled the contract as to the labor and companionship afforded the decedent. Additionally, appellant points out that her promise was to afford such labor and companionship for so long as Sara might live. At the time of entering into the contract, the duration of decedent's life was uncertain; at that time it was impossible to determine whether the contract would be performed in half a minute, or whether appellant would be obligated to perform for all the days of her life. The contract was thus aleatory, not only because of the uncertainty of the duration of Sara Remmert's life, but that of appellant as well. Her claim, then, is that she was obligated to perform the labor for and afford the companionship to decedent regardless of the length of time decedent might live, and thus, there was adequate consideration for the contract.

In Smith v. McHenry, 111 Kan. 659, 207 P. 1108 (1922), a husband and wife jointly promised Smith, their foster son, that they would leave their property to him after both had died. After the death of the husband, the wife was cared for by the defendant, McHenry, who had been raised by the husband and wife. The wife agreed to leave the farm to McHenry...