Petty's Estate, Matter of

• Decision Date: 05 April 1980
• Docket Number: Nos. 51406,No. 1,L,51738,1,s. 51406
• Citation: 227 Kan. 697,608 P.2d 987
• Parties: , 11 A.L.R.4th 623 In re the Matter of the ESTATE of Robert R. PETTY, Deceased. Kathleen PETTY, Widow, Teresa Foley and Richard Petty, Adult Children, all of the Heirs of the Decedent, Appellants, v. Edward J. WHITE, the Named Executor in the Will of Robert R. Petty, Deceased, Appellee. Edward J. WHITE, Executor named in the Will of Robert R. Petty, Deceased, Petitioner, v. Hon. John L. WHITE, Associate District Judge, First Judicial District, Divisioneavenworth County, Kansas, Kathleen Petty, Richard A. Petty, Teresa Foley, and Robert W. Loyd, Special Administrator of the Estate of Robert R. Petty, Deceased, Respondents.
• Court: Kansas Supreme Court

Page 987

608 P.2d 987

227 Kan. 697, 11 A.L.R.4th 623

In re the Matter of the ESTATE of Robert R. PETTY, Deceased.

Kathleen PETTY, Widow, Teresa Foley and Richard Petty, Adult Children, all of the Heirs of the Decedent, Appellants, v. Edward J. WHITE, the Named Executor in the Will of Robert R.

Petty, Deceased, Appellee.

Edward J. WHITE, Executor named in the Will of Robert R.

Petty, Deceased, Petitioner, v. Hon. John L. WHITE, Associate District Judge, First Judicial

District, Division No. 1, Leavenworth County, Kansas,

Kathleen Petty, Richard A. Petty, Teresa Foley, and Robert

W. Loyd, Special Administrator of the Estate of Robert R.

Petty, Deceased, Respondents.

Nos. 51406, 51738.

Supreme Court of Kansas.

April 5, 1980.

Syllabus by the Court

1. Signatures of attesting witnesses on a self-proving sworn statement which appears on the will's last page after all of the will's dispositive or essential provisions, are sufficiently at the end of the will to comply with the attestation statute, K.S.A. 59-606, and the fact that the statement, in form, resembles an affidavit, rather than the usual attestation clause, does not destroy its validity.

2. In a probate proceeding on a petition for probate of a will, the inquiry is limited to the single question whether such instrument is entitled to probate. A family settlement agreement executed by all the beneficiaries under the will and filed in the probate court to withhold the will from probate is not a valid or proper defense to that probate proceeding.

3. When a testator in his will names an executor, normally the court has no discretion respecting the appointment, if the executor so named is legally competent and will accept the trust. However, a district court should refuse to appoint a designated executor where peculiar and abnormal facts are disclosed which make it clear that the person designated as executor is not a suitable person.

4. The mere fact the heirs of the testator have a feeling of hostility toward the designated executor and do not want him appointed is not alone a sufficient reason for a district court to refuse to appoint the designated person. Where, however, the designated person is in a position or has acted in a manner antagonistic toward the interests of the estate or the heirs in a way indicating that his administration of the estate would probably result in prolonged and unnecessary difficulty or expense, then such a person should not be appointed as executor.

5. Where the district court has found a designated executor to be legally competent and has appointed him over the objection of the heirs, the court may in its discretion, stay the effect of the order of appointment, until an appeal from the order of appointment has been determined.

Edward M. Boddington, Jr., of Boddington & Brown, Kansas City, argued the cause for Teresa Foley and Richard Petty, and Albert E. Grauberger, Kansas City, argued the cause for Kathleen Petty, and were on the briefs for appellants.

David K. Fromme, of Weeks, Thomas, Lysaught & Mustain, Chtd., Overland Park, argued the cause, and Jon C. Christlieb, Overland Park, was with him on the briefs for appellee.

PRAGER, Justice:

This case is a consolidation of two separate actions: First, an appeal from an order of the district court of Leavenworth County admitting a will to probate and appointing as executor the person designated in the will and, second, an original proceeding in mandamus brought by the named executor against the district judge for an order directing the judge to accept the petitioner's oath as executor for filing, to issue letters testamentary to the petitioner, and to compel the special administrator to turn over all estate property to the petitioner.

The facts in the case are not greatly in dispute and essentially are as follows: The decedent is Robert R. Petty who died on April 19, 1979. The decedent was survived by his second wife, Kathleen Petty, and by two adult children, his daughter, Teresa Foley, and his son, Richard Petty. On November 21, 1975, Robert R. Petty and Kathleen Petty, then Kathleen Shepard, in contemplation of marriage entered into an antenuptial agreement which limited the rights of each in the property of the other. They were subsequently married and remained married until the death of Robert R. Petty in an automobile collision on April 19, 1979. On August 17, 1976, Robert R. Petty executed a will which provided that Kathleen Petty, as a widow, was to receive $50,000 and the family automobile while the son and daughter were to receive the remainder of the estate. Robert R. Petty was a building contractor and sole shareholder of Westside Construction Company, Inc., a successful construction business. Over the years, Edward J. White, a lawyer, had represented Petty in certain business matters, including the drafting of several wills at various times. In the will dated August 17, 1976, Edward J. White was designated to be the executor with broad powers to sell and dispose of estate assets.

Following the death of Robert R. Petty, a petition to probate the will of Robert R. Petty was filed on April 25, 1979, by White, as named executor, in the district court of Leavenworth County. On April 27, 1979, the widow and two children, as all of the named heirs and devisees under the will, filed a petition alleging that Edward J. White was not competent to act as the executor of the estate. They objected to his appointment and requested that the three of them be appointed coadministrators, C.T.A., and that White be restrained from collecting or disposing of any of the estate assets or from interfering with the construction business. Kathleen Petty, as widow, also filed an election to take against the will and by intestate succession. A hearing was held on April 30, 1979, following which the court ordered all parties restrained from collecting or disposing of any assets of the estate. The court then appointed Robert W. Loyd as special administrator of the estate. The special administrator immediately took possession of all estate assets. Thereafter, the heirs filed objections to the probate of the will and petitioned the court to have the estate administered in accordance with a family settlement agreement which provided for an agreed distribution of the estate and for abrogation of the will and of the antenuptial agreement and for the appointment of Commercial National Bank as administrator instead of Edward J. White.

After several hearings, the district court on November 20, 1979, entered judgment admitting the will of Robert R. Petty to probate, appointing Edward J. White as executor, and denying the petition for an order to administer the estate under the family settlement agreement. The court then ordered that the appointment of Edward J. White should be stayed pending the appeal. This left the special administrator in the position of administering the estate while the appeal was pending. The heirs appealed to the Court of Appeals. On December 17, 1979, Edward J. White filed an original proceeding in the Supreme Court for a writ of mandamus to require the district court to accept the oath of Edward J. White, as executor, to issue letters testamentary to Edward J. White, and to issue an order requiring the special administrator to turn over all estate property to Edward J. White as named executor. The Supreme Court accepted jurisdiction of the mandamus action and immediately transferred the direct appeal of the heirs to the Supreme Court, so that the heirs' appeal and the mandamus action could be disposed of in a single proceeding. We will consider first the issues raised on the appeal and then the issue raised in the proceeding for mandamus.

The first point raised by the heirs on their appeal is that the will of August 17, 1976, was not properly executed and should not have been admitted to probate because the will was not properly signed at the end as required by K.S.A. 59-606, which provides as follows:

"59-606. Execution and attestation; self-proved wills and codicils; affidavits; form. Every will, except an oral will as provided in K.S.A. 59- 608, shall be in writing, and signed at the end thereof by the party making the same, or by some other person in the presence and by the express direction of the testator and shall be attested and subscribed in the presence of such party by two or more competent witnesses, who saw the testator subscribe or heard the testator acknowledge the same. Such will, at the time of its execution or at any subsequent date during the lifetimes of the testator and the witnesses, may be made self-proved, and the testimony of the witnesses in the probate thereof may be made unnecessary by the acknowledgments thereof and the affidavits of the testator and the attesting witnesses, each made before an officer authorized to take acknowledgments to deeds of conveyance and to administer oaths under the laws of this state, such acknowledgments and affidavits being evidenced by the certificate, with official seal affixed, of such officer attached or annexed to such will in form and contents substantially as follows:

"Before me, the undersigned authority, on this day personally appeared """""""""", """""""""", and """""""""", known to me to be the testator and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and, all of said persons being by me first duly sworn, said """""""""", testator, declared to me and to the said witnesses in my presence that said instrument is his/her last will and testament, and that he/she had willingly made and executed it as his/her free and voluntary act and deed for the purposes therein expressed; and the said witnesses, each on his/her oath stated to me, in the presence and hearing of the said testator, that the said testator had declared to them that said instrument is his/her last will and testament, and that he/she executed same...