Phillips' Estate, Matter of

• Decision Date: 04 January 1980
• Docket Number: No. 50286,50286
• Parties: In the Matter of the Estate of Robert L. PHILLIPS, Deceased.
• Court: Kansas Court of Appeals

Page 747

604 P.2d 747

4 Kan.App.2d 256

In the Matter of the Estate of Robert L. PHILLIPS, Deceased.

No. 50286.

Court of Appeals of Kansas.

Jan. 4, 1980.

Review Denied March 7, 1980.

Syllabus by the Court

1. Rules concerning premature appeals are stated and applied.

2. For jurisdictional purposes, the terms "residence" and "domicile" are treated as equivalents.

3. Once a residency is established, it is presumed to continue until a new residency is established.

4. A party alleging a change of residence has the burden of proving the existence of a new residence.

5. To effect a change of residence, there must be a transfer of bodily presence to the new location coupled with intention to abide therein either permanently or indefinitely.

6. Residence is largely but not solely a matter of intent. A person's actual place of dwelling and his intention with respect to it as declared by his whole course of conduct are the controlling factors in ascertaining his residence. When the law attaches consequences to intentional conduct, the actor must abide the consequences whether intended or not.

7. When a person's significant course of conduct is closely divided between two or more states, his stated intent as to the state of his residence may be permitted to tip the scales in favor of that state.

8. In a proceeding to determine the residence of the decedent, it is Held that the trial court did not err in determining that the decedent died a resident of the State of Missouri.

John H. Fields, of Carson, Fields & Boal, Kansas City, for appellant Thelma L. Phillips.

L. Franklin Taylor, of Payne & Jones, Chartered, Olathe, for appellees Robert Laidlaw Phillips, Jr., William Ward Phillips and Paula Phillips.

Before FOTH, C. J., and ABBOTT and REES, JJ.

ABBOTT, Judge:

This is an appeal from an order determining the legal residence of the decedent, Robert L. Phillips, to have been in the State of Missouri at the time of his death. His widow, Thelma L. Phillips, appeals.

The practical importance of determination of decedent's residence is that if he died a resident of the State of Kansas, his widow is entitled to claim one-half of the estate, but if the decision of the trial court that decedent died a resident of the State of Missouri is affirmed, the widow would be entitled to a significantly smaller share of the estate. The reason for this result is the will provides that in addition to a specific bequest and a specific devise, the widow receives one-third of the residuary estate and decedent's children receive the remaining two-thirds. Pursuant to Missouri law (Mo.Ann.Stat. § 474.160.1(1) (Vernon 1979 Supp.)), that provision would be effective. If on the other hand decedent was a resident of Kansas at the time of death, the widow may elect a statutory share of one-half of the decedent's estate pursuant to K.S.A. 59-603. The distribution of property worth more than $100,000 appears to turn on resolution of the residence question.

The appellant, Thelma L. Phillips, is decedent's second wife. The appellees, Robert L. Phillips, Jr., William W. Phillips and Paula J. Phillips, are the adult children of the decedent by a former marriage.

The decedent died on February 9, 1978, at his home in Johnson County, Kansas. That same day his widow petitioned the District Court of Johnson County to probate decedent's will as the will of a Kansas domiciliary. Decedent's three children answered by denying the decedent's Kansas residence and requesting admission of the decedent's will as that of a nonresident. After hearing evidence the court rendered its memorandum decision, concluding that the decedent died a resident of the State of Missouri. The widow appeals.

Before reaching a decision on the residence question, we dispose of the motion by appellees to dismiss the appeal on the ground that this Court is without jurisdiction because the memorandum decision did not constitute an appealable order. In essence, appellees contend that the memorandum decision does not fall within any of the enumerated categories of appealable orders set forth in the Kansas probate code at K.S.A.1978 Supp. 59-2401. On the other hand, the widow argues that the decision is appealable under three distinct subsections of 1978 Supp. 59-2401(A ). We hold that we have jurisdiction by reason of a court order dated November 28, 1978, entered after the filing of the notice of appeal, which refused to admit the will to probate as that of a resident decedent and admitted the will to probate as that of a nonresident decedent. In our view, the mentioned refusal of admission brings that order within K.S.A.1978 Supp. 59-2401. The remaining question is whether the prematurely filed notice of appeal was effective. This issue has been resolved by Rule No. 2.03 (224 Kan. xxxiv), which states:

"A notice of appeal filed subsequent to an announcement by the judge of the district court on a judgment to be entered, but prior to the actual entry of judgment as provided in Sec. 60-258, shall be effective as notice of appeal under Sec. 60-2103, if it identifies the judgment or part thereof from which the appeal is taken with sufficient certainty to inform all parties of the rulings to be reviewed on appeal. Such advance filing shall have the same effect for purposes of the appeal as if the notice of appeal had been filed simultaneously with the actual entry of judgment, provided it complies with Sec. 60-2103(b)."

Supreme Court Rule No. 2.03 also applies to appeals brought under the probate code in light of K.S.A.1978 Supp. 59-2401(C ), which states: "Except as otherwise provided in this section, appeals taken pursuant to this section shall be taken in the manner provided by chapter 60 of the Kansas Statutes Annotated for other civil cases."

The Kansas Supreme Court recently considered the rule in Security National Bank v. City of Olathe, 225 Kan. 220, 221, 589 P.2d 589 (1979), holding that a premature notice of appeal is timely so long as it identifies the appealed judgment with sufficient certainty to inform the prevailing party below of the rulings to be reviewed on appeal. In that case, the Court found the notice of appeal to be timely since the prevailing party did not contend that it had insufficient notice of the rulings appealed. The parties here likewise made no protestations of surprise. We are satisfied we have jurisdiction by reason of K.S.A.1978 Supp. 59-2401(A )(1).

The widow's position in this appeal is basically that the trial judge's findings of fact are inconsistent with his decision that decedent died a Missouri resident. At the outset, it should be noted that the decedent was born and raised in Missouri and intended to retain his Missouri residence when he and his wife purchased, remodeled and moved into a home in Johnson County, Kansas, in December 1975. That fact is beyond dispute. Decedent had been active in the management of the Phillips Hotel in downtown Kansas City, Missouri. It was part of a family-owned corporation that also held title to substantial amounts of real estate in Missouri. Decedent had been active in Democratic politics in Missouri for years, and the trial judge rightfully found him to have been proud of his strong and long-standing Missouri heritage. His first marriage was terminated by divorce and he married the appellant widow in Mound City, Missouri, on March 11, 1973. The family corporations were liquidated and assets were distributed to the stockholders, at which time the decedent took up residence on a 450-acre farm in Mount City, Missouri, he had accepted as part of his distributive share. Various witnesses described the home as a hunting lodge. He also owned other real estate at that time consisting of a one-thousand-acre farm near Albany, Missouri, and a vacation home in Shell Knob, Stone County, Missouri.

Decedent unquestionably was a Missouri resident until December 23, 1975, when he and the appellant moved from Mound City, Missouri, to Johnson County, Kansas. His health had started to fail prior to his move to Kansas. He had cardiovascular problems and developed inoperable lung cancer that ultimately led to his death. He expressed to his daughter and one son his intent to move back to Kansas City. They testified that their father thought medical care in Mound City was inadequate for his medical problems, and "(h)e wanted to be closer to better medical attention and also friends." Decedent and his wife spent some seven or eight months looking at houses before purchasing the Johnson County home. The decedent contacted his lawyer specifically to ascertain how he could maintain his Missouri domicile while living in Kansas.

After moving into the home in Johnson County, decedent executed his last will and testament that declared his residency as Stone County, Missouri. He registered his motor vehicles in Missouri. Decedent and Mrs. Phillips both continued to obtain Missouri driver's licenses. They paid personal property and state income taxes in Missouri. No income or intangible tax returns were ever filed in Kansas. After they left Mound City, Missouri, they used the Missouri office address of decedent's accountant on their tax returns. They voted in Stone County, Missouri.

The decedent continued to divest himself of his Missouri real estate after moving to Kansas. We do note that although the largest acreage (one thousand acres) had been on the market for some time, its sale was not completed until January 1978 less than one month before the death of decedent. Decedent still owned the vacation home at Shell Knob, Stone County, Missouri, at the time he died. Evidence was presented that decedent had considered selling the vacation home, but was in no hurry to do so and it was not on the market at the time he died. The evidence indicates that the Shell Knob home was nothing more than a vacation home. It had been used four or five times a year for a week at a time by the Phillips when they lived at Mound City. As...