Miller's Estate, In re

• Decision Date: 23 January 1960
• Docket Number: No. 41617,41617
• Parties: In the Matter of ESTATE of James H. MILLER, Deceased. Lucille E. JACOBS, Appellant, v. Eva May REBENSTORF, Appellee.
• Court: Kansas Supreme Court

Page 1033

348 P.2d 1033

186 Kan. 87

In the Matter of ESTATE of James H. MILLER, Deceased.

Lucille E. JACOBS, Appellant, v. Eva May REBENSTORF, Appellee.

No. 41617.

Supreme Court of Kansas.

Jan. 23, 1960.

Rehearing Denied March 9, 1960.

Syllabus by the Court.

1. Where a husband and a wife execute a joint and mutual will leaving all their property to the survivor absolutely, conditioned upon a provision whereby the wife devised eighty acres of her separate property to named grandchildren, and by another provision mutually leave all their property to their daughter absolutely upon the death of both of them, which is construed to be a common casualty clause, it is held: The finding of the trial court that the joint and mutual will is not contractual is sustained.

2. Upon the situation described in Syllabus p1, a subsequent will executed by the surviving husband, after the death of the wife, passed the property of the husband in accordance with its terms and provisions upon admission of the subsequent will to probate, subject to administration.

3. Where there are definite and unambiguous expressions in a will, other expressions that are capable of more than one meaning must be construed, if possible, so as to harmonize them with the plain provisions. To ascertain the intention of the testator and the extent and character of the bequests and devises of his will, all provisions of the will must be read and construed together, and one provision must not be given controlling significance by ignoring other provisions of the will.

4. The existence or nonexistence of an agreement or contract is in its very nature a fact. If a joint and mutual will is the result of a contract, under which the making of each will is consideration for making the other, it is necessary to establish that fact by direct or circumstantial evidence.

5. It is essential to the validity and enforcement of a contract for the execution of wills containing bequests and devises, which are reciprocal between the parties, that the contract be definite, certain and unequivocal as to the parties, the subject matter and the considerations.

6. Where a joint and mutual will is executed by a husband and wife, the testamentary instrument itself and its terms may be sufficient when taken into consideration as circumstantial evidence upon which to base a finding that the will is contractual. But a testamentary instrument although declared to be 'our Last Will and Testament,' although containing reciprocal testamentary dispositions, and although jointly executed, does not compel the inference that it was contractual in character.

I. H. Stearns, Wichita, argued the cause, and E. P. Villepigue, Wichita, was with him on the brief, for appellant.

William C. Farmer, Wichita, argued the cause, and Paul V. Smith, Douglas E. Shay, Leo R. Wetta and James R. Schaefer, Wichita, were with him on the brief, for appellee.

SCHROEDER, Justice.

The sole question presented by this appeal is whether the joint will of James H. Miller and Elsie R. Miller, his wife, dated January 31, 1944, is a contractual will.

The joint will in question, omitting the attestation clause, reads:

'Last Will and Testament of James H. Miller and Elsie R. Miller

'We, James H. Miller and Elsie R. Miller, of Wichita, Kansas, being of full age and sound mind and memory, do make, publish and declare this to be our Last Will and Testament, hereby revoking any and all other or former wills or codicils made by us or claimed to have been made by us.

'First

'The one of us dying first hereby nominates and appoints the survivor to be Executor or Executrix, as the case may be, of this our Last Will and Testament, and direct that such Executor or Executrix be relieved from the giving of any bond, or the filing of an inventory herein. And in the event of the death of both of us, then we nominate and appoint our daughter, Lucille E. Jacobs, to be Executrix of this our Last Will and Testament, and direct that she be relieved from the giving of a bond or the filing of an inventory.

'Second

'We first direct that all our just debts and funeral expenses shall be paid from our said estate.

'Third

'In the event of our death at different times, the one of us dying first hereby gives, devises and bequeaths all of his or her property, both real and personal, unto the survivor of us to be his or hers absolutely.

'Fourth

'Upon the death of both of us, we give, devise and bequeath all of our property, both real and personal, to Lucille E. Jacobs, to be hers absolutely.

'Fifth

'The foregoing bequests are made upon the following conditions, to-wit:

'Whereas, the undersigned, Elsie R. Miller, is the owner of the West Half (W 1/2) of the Southwest Quarter (SW 1/4) of Section Eighteen (18), Township Twenty-nine (29), Range One (1) West, Sedgwick County, Kansas,

'Now Therefore, the undersigned, Elsie R. Miller, does hereby give, devise and bequeath said property mentioned in this section numbered Fifth unto our grandchildren, Robert Roy Jacobs and Marilyn B. Jacobs; that they have the net income from the same until the youngest of said grandchildren, to-wit, Marilyn B. Jacobs, reaches the age of twenty-one years. Then said property is to be and become the property of said named grandchildren, share and share alike absolutely, it being provided that said property shall not be sold or mortgaged until said Marilyn B. Jacobs reaches the age of twenty-one years.

'In Witness Whereof we have hereunto subscribed our names at Wichita Sedgwick County, Kansas, this 31st day of January, 1944.

'/s/ James H. Miller

'/s/ Elsie R. Miller'

Elsie R. Miller died on the 8th day of September, 1946, and the disposition of her property, consisting of a quarter section of land near Haysville, Kansas, and an eighty-acre tract near Clearwater, Kansas, is not in controversy. These properties were owned separately by Elsie during her lifetime. It should be noted none of the property separately owned by James was mentioned in the joint will. The record does not disclose they owned any property as tenants in common or as joint tenants.

After the death of Elsie R. Miller, James H. Miller executed a will dated May 21, 1957. Thereafter, on the 11th day of March, 1958, James died and this subsequent will was admitted to probate. The probate court held the joint will dated January 31, 1944, was not a contractual will and the property of James H. Miller passed pursuant to the terms of the subsequent will, which insofar as James' estate is concerned revoked the will of January 31, 1944. It also found none of the beneficiaries named in the joint will had any claims against or interest in the estate of James by virtue of the will dated January 31, 1944. On appeal to the district court the facts, not being in controversy, were stipulated and the decision of the probate court was affirmed. Appeal has been duly perfected presenting to this court the question heretofore stated.

Elsie R. Miller and James H. Miller were married for many years. They had two children, Lucille E. Jacobs, a daughter, and Charles Miller, a son, who died before the joint will was executed. The son left a daughter surviving him by the name of Betty Colleen Dube. The grandchildren named in the joint will were the children of Lucille E. Jacobs.

By the subsequent will of James H. Miller, Betty Collen Dube was bequeathed the sum of $2,000. Eva May Rebenstorf, who cared for James H. Miller the last eight years of his life, was given a quarter section of land in Gray County, Kansas, which he owned in his own right. She was also given the monthly income for the rest of her natural life from an escrow agreement on residential property, which he bought and sold subsequent to the death of Elsie R. Miller. The rest of his property was given to Lucille E. Jacobs. (The record does not disclose what the remainder of his property was, except the remaining interest in the above real estate contract.)

On the death of James H. Miller, the joint will was filed for probate by Lucille E. Jacobs (appellant) alleging it to be the only valid will in existence. The subsequent will of James H. Miller was filed for probate by Eva May Rebenstorf (appellee) as one of the devisees and legatees thereunder.

We shall first consider the interpretation and construction of the joint will to determine what disposition the parties made of their property under the terms and provisions of their joint will. This becomes material only insofar as it may assist in resolving whether the joint will is contractual.

Where a court, either trial or appellate, is called upon to determine the force and effect to be given the terms of a will, its first duty is to survey the instrument in its entirety and ascertain whether its language is so indefinite and uncertain as to require the employment of rules of judicial construction to determine its force and effect. This court has long been committed to the rule that where from an analysis of the entire instrument no ambiguity or uncertainty is to be found in its language, the intention of the testator being clearly and unequivocally expressed, there is no occasion to employ rules of judicial construction and the will must be enforced in accordance with its terms and provisions. Johnston v. Gibson, 184 Kan. 109, 113, 334 P.2d 348; In re Estate of Freshour, 185 Kan. 434, 345 P.2d 689; and authorities cited in the foregoing cases.

It is readily apparent, however, from a reading of the joint will above set forth that Paragraph Fourth thereof is ambiguous when read with Paragraph Third. The will therefore requires construction in the light of rules long since established by this court in cases where the terms and provisions of other wills have been regarded as indefinite and uncertain.

A rule for the construction of wills to which all other rules are subordinate is that the intention of the testator as garnered from all parts of the will is to be given effect, and that...