Martin v. Martin

• Decision Date: 09 January 1915
• Docket Number: 19,087
• Citation: 145 P. 565,93 Kan. 714
• Parties: LOYAL M. MARTIN, Appellant, v. LOYAL J. MARTIN, as Executor, etc., Appellee
• Court: Kansas Supreme Court

145 P. 565

93 Kan. 714

LOYAL M. MARTIN, Appellant, v. LOYAL J. MARTIN, as Executor, etc., Appellee

No. 19,087

Supreme Court of Kansas

January 9, 1915

Decided. January, 1915.

Appeal from Chautauqua district court; ALLISON T. AYRES, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. DESCENTS AND DISTRIBUTIONS--Laws of Kansas Govern. The laws of Kansas determine the descent and distribution of real estate situated in this state.

2. WILLS--No Ambiguity--Construction Not Necessary. When there is no ambiguity or uncertainty in the language used in the making of a will, a construction of the will is unnecessary and it will be enforced in accordance with the provisions thereof.

G. A. Chappell, of Newkirk, Okla., for the appellant.

Loyal J. Martin, of Tulsa, Okla., for the appellee; J. A. Ferrell, of Sedan, of counsel.

OPINION

SMITH, J.

One D. D. Martin, of Newkirk, Okla., on October 12, 1909, executed his will at that place and it was duly attested by subscribing witnesses. He died February 5, 1911.

The will, omitting the certification, reads as follows:

"NEWKIRK, OKLA., Oct. 12th, 1909.

I, David D. Martin, of the City of Newkirk, County of Kay, State of Oklahoma, do hereby make, publish and declare this my last will and testament in the manner and form following:

"First: I direct that all my just debts and funeral expenses be paid as soon after my decease as conveniently can be done.

"Second: I give, devise and bequeath unto my wife, Caroline H. Martin, should she survive me, a one-third (1/3) part of all property, both real and personal, of which I may die possessed.

"Third: All the rest, residue and remainder of my estate, real, personal and mixed, wheresoever situate, of which I may die seized or possess, or to which I may be entitled at the time of my decease, I give, devise and bequeath unto my three children, Watson J. S. Martin, of Chicago, Illinois; Evaline B. Rouse, of Newkirk, Oklahoma, and Loyal J. Martin, of Tulsa, Oklahoma, share and share alike, and should my wife, Caroline H. Martin, die before me, then all of the property of which I may die seized or possessed, both real and personal, to be divided equally between my three living children, Watson J. S. Martin, Evaline B. Rouse and Loyal J. Martin, share and share alike, and should any of my said three children die before me, the share which they would receive under this will to go to the lawful issue of said child or children so dying.

"Fifth: I name, constitute and appoint my son, Loyal J. Martin, of Tulsa, Oklahoma, executor of this my last will and testament.

"IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my seal, at Newkirk, Kay County, Oklahoma, in the presence of J. F. King and W. S. Cline, whom I have requested to become attesting witness thereto.

D. D. MARTIN."

George Martin, the father of the appellant and son of the testator, died in March preceding the making of the will, and it will be observed that neither George Martin nor the appellant were mentioned in the will, but that all of the property of the testator was devised to the wife and other children of the testator by the terms of the will.

On March 25, 1911, a hearing was had in the probate court of Kay county, Oklahoma, on the petition of Loyal J. Martin to have the will admitted to probate, to which the appellant, Loyal M. Martin, had filed objections. At the hearing, however, the appellant made no appearance. The order of the court was as follows:

"That the instrument propounded herein for probate was duly executed by the decedent, and that at the time of the execution thereof said testator was of full age and of sound mind and memory and was not acting under duress, menace, fraud or undue influence, and that said will was executed in all particulars as required by law.

"And the said Loyal M. Martin not having offered any evidence in support of his objections filed herein. . . . It is by the court ordered that said objections . . . by Loyal M. Martin be, and the same are hereby overruled, except as to those matters contained therein which were by stipulations filed herein . . . agreed by the parties herein to be true."

It was further ordered that the will be admitted to probate, and that the same is established as a valid will, passing both real and personal estate, in such manner as may be hereafter defined by the court's decree of distribution. It was also ordered that Loyal J. Martin, named as executor in the will, be appointed executor by the court. An order was made for bond, which was given.

It appears that a petition of appellant in the probate court of Kay county, Oklahoma, for distribution of the estate, and that it be adjudged that he was entitled to one-sixth thereof, was denied by that court. The case was then taken to the district court of Kay county, wherein the following findings were made on January 9, 1913:

"The court after being fully advised in the premises, and the evidence having been heretofore introduced in this case finds that D. D. Martin departed this life on the 5th day of February, 1911; that George Martin was a son of D. D. Martin and departed this life on the 23d day of March, 1909, leaving Loyal M. Martin as his only issue and as such is a grandchild of D. D. Martin, deceased, and entitled to one-sixth of the estate of D. D. Martin, deceased, as...