Mullin's Estate, In re, 45138

• Decision Date: 13 July 1968
• Docket Number: No. 45138,45138
• Parties: In the Matter of the ESTATE of M. E. MULLIN, Deceased.
• Court: Kansas Supreme Court

Page 331

443 P.2d 331

201 Kan. 756

In the Matter of the ESTATE of M. E. MULLIN, Deceased.

No. 45138.

Supreme Court of Kansas.

July 13, 1968.

Syllabus by the Court

1. In determining whether a motion for summary judgment is well founded, the court may pierce formal allegations of fact in pleadings and determine from the entire case whether there are genuine issues of material fact to be resolved at a formal trial.

2. Where a court has jurisdiction of the parties to an action and of the subject matter thereof and renders a judgment within its competency, from which no appeal is taken, such judgment is final and conclusive, and not subject to collateral attack.

3. Under the doctrine of res judicata when an issue is determined and a judgment rendered thereon under the circumstances set forth in Syllabus 2 above, the issue and everything incidental thereto which could have been properly adjudicated cannot be relitigated between the same parties in a new proceeding.

4. A husband during marriage cannot contract for disposition of his property by will to another so as to defeat his wife's rights to a widow's share in his estate, without her consent.

5. If a widow elects to take under the law of descent and distribution, there is no will as to her; her share is carved out of the estate according to law as if no will had been made, and the will operates only upon the residue.

6. In a proceeding to establish a purported claim against an estate based on an alleged oral estate planning agreement between two brothers, it being admitted the terms of said agreement were as evidence by the provisions of a joint will executed by the brothers and consented to by their wives, the record is examined, and the pleadings, admissions and stipulations disclose that at the time the joint will was offered for probate as the last will and testament of the surviving brother his wife's consent to said will was found to be invalid and she elected to take under the law, and it is held, for the reasons stated in the opinion, the district court properly rendered summary judgment in favor of the widow.

Harry A. Waite, Dodge City, argued the cause, and E. C. Minner, Dodge City, was with him on the brief, for appellants, Frederick W. Mullin, Jr., Patricia Rose Mullin and B. F. Zimmerman.

J. Eugene Balloun, great Bend, argued the cause, and H. Lee Turner and Max E. Eberhart, Great Bend, were with him on the brief, for appellee, Lula Mullin.

O'CONNOR, Justice:

This is a proceeding to establish a purported claim against the estate of M. E. Mullin, deceased. The district court sustained a motion for summary judgment filed by the deceased's widow, Lula Mullin, and the petitioners, Frederick W. Mullin, Jr., Patricia Rose Mullin and B. F. Zimmerman, have appealed. Throughout this opinion the petitioners will be referred to as appellants, and Lula Mullin will be designated as appellee or Lula.

The events giving rise to the filing of the petition may be reconstructed from the pleadings, admissions and stipulations that were before the district court when the ruling was made on the motion for summary judgment.

On June 13, 1947, M. E. Mullin and his brother J. D. Mullin executed their joint last will and testament. This rather elaborate instrument provided that upon the death of either of the brothers, the major portion of his property was to be placed in trust, with a part of the income from the corpus to be paid to his surviving spouse. Provisions were also made for other members of the Mullin family, including distribution of one-twentieth of the corpus of the estate after a certain number of years to each of their nieces and nephews which included two of the appellants herein: Frederick W. Mullin, Jr. and Patricia Rose Mullin. The other appellant, B. F. Zimmerman, was named as executor of the estate of the last surviving brother. The will also made provision for religious, educational and charitable groups, and ultimately for the creation of a charitable corporation to bear the name 'Mullin Brothers Foundation.' Approximately two months after the will was executed by the brothers separate consents thereto were executed by Olive E. Mullin, J. D.'s wife, and Lula D. Mullin, M. E.'s wife.

J. D. Mullin died June 6, 1948, and the joint will was admitted to probate as his last will and testament. M. E. Mullin was appointed executor in accordance with the terms of the will. The estate was duly administered and an order of final settlement entered by the probate court of Ford county on October 25, 1951. All the property in J. D.'s estate, except certain items of a personal nature, was assigned to the named trustees and their successors in trust. M. E. Mullin was named as one of the trustees and served in that capacity until his death on June 24, 1965.

On August 2, following M. E.'s death, E. C. Minner, Robert L. Lofthouse, Laurin W. Jones and Harry A. Waite, as successor trustees of the trust created under the terms of the joint will, filed a petition for admission of said will to probate as the last will and testament of M. E. Mullin, deceased. Lula filed her written defenses to the petition, alleging the will was invalid, that her consent thereto was obtained by fraud, undue influence and duress, and further, that she elected to take under the law. Thereupon, notice of hearing was given to all interested parties, including the appellants. Appellants filed no pleadings and entered no appearance. Hearing was held on September 14, 1965, and the probate court found that all persons interested in the estate had 'due and legal notice of all issues before the court.' After hearing evidence, the court found that Lula's consent to the 'alleged will of M. E. Mullin, deceased * * * was not given voluntarily, and is therefore void and should be and is hereby set aside by the court.' The court continued the hearing on the question of whether or not the will should be admitted to probate. After a further hearing and submission of briefs, the probate court, on October 5, 1965, admitted the joint will to probate as the last will and testament of M. E. Mullin. The court further found that since Lula had elected to take under the law, in opposition to the will, she was entitled to nominate a fiduciary to serve with B. F. Zimmerman, the named executor. Thereupon, the court appointed co-fiduciaries-Zimmerman as executor and Reba Jo Hainds as administratrix with the will annexed. Letters of appointment were duly issued to the co-fiduciaries upon their qualifying as such.

Separate appeals to the district court from the two orders of the probate court were filed by the trustees, E. C. Minner, Robert L. Lofthouse, Laurin W. Jones and Harry A. Waite:

1. On October 11, 1965, the trustees appealed from the probate court's order of September 14, 1965, setting aside Lula's consent to the will. The appeal was docketed in the district court, and on December 31, 1965, Lula's motion to dismiss the appeal was sustained on the basis the trustees were not 'persons aggrieved' within the meaning of the probate appeal statute (K.S.A. 59-2404). From this ruling, the trustees filed notice of appeal to the supreme court. On May 6, 1966, upon Lula's motion, the district court found that the trustees' appeal to this court had been abandoned, and the appeal was thereupon dismissed.

2. On January 25, 1966, the trustees and Fred Mullin (it is not clear if this is the same individual as one of the appellants herein) filed notice of appeal from the probate court's order of October 5, 1965, appointing the co-fiduciary, Reba Jo Hainds, administratrix with the will annexed. The notice, however, specifically stated that no appeal was being taken from that part of the order admitting the will to probate and appointing B F. Zimmerman as executor. On oral motion of the trustees and Fred Mullin, the appeal to the district court was dismissed on September 2, 1966.

Meanwhile, the present petition was filed by Frederick W. Mullin, Jr., Patricia Rose Mullin and B. F. Zimmerman in the estate of M. E. Mullin. The petition is entitled 'Petition for Probate of Will; for Allowance of Claim; for Construction of Will and Specific Performance of Contract.' The petition reviewed the litigation involving the estates of both M. E. Mullin and J. D. Mullin, and alleged, inter alia:

'On the 13th day of June, 1947, J. D. Mullin and his brother, M. E. Mullin, both residents of Ford County, Kansas, and each of them having a valuable estate, acting pursuant to an agreement and in concert with their respective spouses, to make a joint, mutual, reciprocal and contractual will whereby each would, in consideration of their mutual agreements, and those of their spouses, waive and relinquish his right to make his individual will, did execute and publish their joint and mutual and contractual will. A copy of such will is attached hereto, marked 'Exhibit A', and made a part hereof by reference.

'As a part of the same contract, on August 13th, 1947, Olive E. Mullin, the then wife of J. D. Mullin, executed a consent to such will. On August 14, 1947, Lula D. Mullin, the then wife of M. E. Mullin, executed a consent to the will. The consents of the respective spouses are a part of 'Exhibit A' attached hereto.

'* * * The petitioners do by these presents offer said will for probate in this court as the Last Will and Testament of M. E. Mullin, deceased, and request that it be executed and enforced as a contract.

'The petitioners allege that Olive E. Mullin, the then wife of J. D. Mullin, and Lula D. Mullin, the then wife of M. E. Mullin, were parties to the estate planning agreement evidenced by the joint will and the wives' Consents thereto; * * *

'In the event the Court finds and adjudges that said joint will has heretofore been validly admitted to probate as the Last Will of M. E. Mullin, deceased, then the petitioners present this petition to the Court as a claim against the estate of M. E. Mullin, deceased. The...