Murdock's Estate, In re, 47169

• Decision Date: 26 January 1974
• Docket Number: No. 47169,47169
• Citation: 519 P.2d 108,213 Kan. 837
• Parties: In the Matter of the ESTATE of Marcellus M. MURDOCK, Deceased. Paula MURDOCK et al., Appellants and Cross Appellees, v. Victoria BLOOM et al., Appellees and Cross Appellants.
• Court: Kansas Supreme Court

Page 108

519 P.2d 108

213 Kan. 837

In the Matter of the ESTATE of Marcellus M. MURDOCK, Deceased.

Paula MURDOCK et al., Appellants and Cross Appellees, v. Victoria BLOOM et al., Appellees and Cross Appellants.

No. 47169.

Supreme Court of Kansas.

Jan. 26, 1974.

Syllabus by the Court

1. The general rule in this state is that contracts, made either before or after marriage, the purpose of which is to fix property rights between a husband and wife, are to be liberally interpreted to carry out the intentions of the makers and to uphold such contracts where they are fairly and understandingly made, are just and equitable in their provisions and are not obtained by fraud or overreaching. Generally speaking, such contracts are not against public policy, although a different rule obtains where the terms of the contract encourage a separation of the parties.

2. Public policy relating to marriage is to foster and protect it, to make it a permanent and public institution, to encourage the parties to live together and to prevent separation.

3. A separation provision in an antenuptial contract which permits the parties to separate at any time and for any cause whatsoever, whether legal or otherwise, in which the wife relinquishes all rights she may have against the husband personally and in and to his property, on terms that are unreasonable and inequitable, tends to encourage separation and to defeat the marriage relation, is contrary to public policy and unenforceable by either party in a divorce action.

4. Where an antenuptial contract is clear and unambiguous, the terms thereof must be construed in such manner as to give effect to the intention of the parties at the time they entered into the contract, and this must be determined from the four corners of the instrument without the aid of parol evidence. Words cannot be read into the agreement which impart an intent unexpressed when it was executed.

5. An antenuptial contract which provides for division of property upon the death of one of the parties becomes an executed contract when that event occurs.

6. An antenuptial contract designed to settle the parties' property rights during the continuance of their marriage and after 'separation by death or otherwise' and providing that if the wife shall be living with the husband as his wife at the time of his death, she shall have certain property rights in his estate, is considered and held to be an enforceable contract against both the widow and the husband's estate upon his death; further held, under the facts related in the opinion, the wife performed her part of the agreement intended by the parties and was thereby entitled to the share in her deceased hushand's estate set out in that agreement.

7. Generally, attorney fees and expenses may not be allowed unless authorized by statute.

8. In a meritorious action brought to construe a will, attorney fees are allowable under the provisions of K.S.A. 59-1504 as costs of litigation where the services of the attorney have been beneficial to the estate or are necessary for proper consideration of the will.

9. Attorney fees and expenses incurred by the claimant and by beneficiaries named in a will in a claim brought by the surviving spouse against the decedent's estate in which the issue is the validity and construction of an antenuptial contract, generally are not proper charges against the estate.

10. An executor has a duty to collect and preserve the assets of a decedent's estate and in so doing he may employ counsel to assist him. The necessity for the particular legal services and the reasonableness of the amount of compensation to be paid out of the estate are essentially questions of fact for the tribunal authorized to order their allowance.

11. Various statutes are considered and construed and it is held that the probate court has exclusive jurisdiction initially to determine an executor's attorney fees and expenses to be allowed pursuant to K.S.A. 59-1717 as expenses of administration in a decedent's estate being administered in that court.

Verne M. Laing, of Morris, Laing, Evans, Brock & Kennedy, Chartered, Wichita, argued the cause, and Ken M. Peterson, Wichita, was with him on the briefs for the appellant and cross appellee Paula Murdock.

Paul R. Kitch, of Fleeson, Gooing, Coulson & Kitch, Wichita, argued the cause, and Thomas D. Kitch, Wichita, was with him on the briefs for the appellants and cross appellees Janet M. Jennings, David Colwell and Vici Colwell McComb.

Bryson E. Mills, of Mills & Baehr, Wichita, argued the cause and Ronald K, Badger, Wichita, was with him on the brief for the appellee and cross appellant Victoria Bloom.

H. E. Jones, of Hershberger, Patterson & Jones, Wichita, argued the cause, and Stephen J. Jones, Wichita, was with him on the brief for the appellee and cross appellant Marsh M. Murdock.

Charles W. Harris, of Weigand, Curfman, Brained, Harris & Kaufman, Wichita, argued the cause, and Lawrence E. Curfman and Sidney J. Brick, Wichita, were with him on the briefs for the appellee and cross appellant The First National Bank in Wichita, executor.

HARMAN, Commissioner:

Presented here are appeals from summary judgment holding that an antenuptial contract was valid and enforceable against a decedent's estate. Consolidated with them are later appeals from awards of attorneys' fees.

There is no dispute in the facts pertinent to the litigation.

On June 24, 1940, Marcellus Murdock and Paula Vaughan entered into the agreement in question. Marcellus was then fifty-seven years of age; Paula was forty-four. Marcellus had four adult children by a previous marriage which had been dissolved by death; Paula had no children.

The introductory portion of their written agreement stated the parties' desire to settle all questions as to rights of each in and to the property of the other during the continuance of their marriage and 'after separation by death or otherwise'. In it each party relinquished any claim to the property of the other during the continuance of the marriage and 'after separation by death or otherwise'; each was to separately own and have the right to alienate his or her property as though the marriage relationship had not been entered. There was a further proviso that 'if (Paula) shall be living with (Marcellus) as his wife at the time of his death' she was to receive as her absolute property the homestead, all household furniture, the family automobile and, in addition, a child's share of Marcellus' estate. Each party made full disclosure of ownership of property at the time the agreement was made.

Marcellus and Paula were married July 3, 1940.

The next significant event was the creation by Marcellus on December 27, 1941, of an inter vivos trust, designed to terminate two years after his death, the principal asset of which was 10,000 shares of capital stock of The Wichita Eagle and Beacon Publishing Co., Inc., which stock constituted one-half of Marcellus' one-third ownership of that corporation. The beneficiaries of the trust were Marcellus' wife, Paula Murdock, one-fifth share; his son, Marsh M. Murdock, and his two daughters, Victoria Bloom and Janet Jennings, one-fifth share each; and his grandson, David Colwell, and his granddaughter, Vici McComb, children of a deceased daughter, Jane Colwell, one-tenth share each. Marsh and The First National Bank in Wichita were named co-trustees of this trust. It appears the same parties to this appeal have had litigation over voting rights in this stock and in an identical block owned by Marcellus at the time of his death; however, that litigation, involving control of the publishing company, plays a part here only as it concerns allowance of attorneys' fees against Marcellus' estate.

Following their marriage Marcellus and Paula lived together twenty-four years but in 1964 Marcellus moved out of the Wichita home in which he and Paula had been living and thereafter the couple remained apart. Paula continued her residence in the family home. During the ensuing six years Marcellus provided for Paula's support. Neither party ever commenced a court proceeding affecting the marital relationship.

On September 28, 1966, Marcellus executed his last will and testament. Paula never consented to this will. Generally the will created five fifteen-year trusts of equal proportions of the testator's estate: One trust for Paula's benefit (denominated Trust 'A' in item Third); one each for the benefit of son Marsh and daughters Victoria Bloom and Janet Jennings; and one for grandchildren David Colwell and Vici McComb. Each beneficiary was to have the net income from each trust during his or her lifetime; in event of the death of any beneficiary prior to the trust's termination his share was to be distributed according to the beneficiary's testamentary direction or, in the absence of such direction, to the beneficiary's heirs at law. Additionally, the will (in item Second) gave to Paula the homestead, all household furniture and the family automobile. However, all bequests to Paula were made conditional by reason of a proviso as to each that it 'shall remain valid and enforceable only if my said wife, Paula Murdock, shall at the time of may death be living with me as my wife in accordance with the provisions of the said written agreement dated the 24th day of June, 1940, otherwise the bequest . . . shall be null and void and of no force and effect'.

Marsh and The First National Bank in Wichita were named co-executors of the will anc co-trustees of the testamentary trusts created therein.

On February 16, 1967, Marcellus signed a paper which was denominated codicil to his last will and testament. This document stated that in regard to the bequests to Paula '. . . it is my express intention that these provisions be construed by taking into consideration that Paula Murdock is not now living with me as my wife, and that under the present facts and circumstances as they now exist, it...