Salvation Army of Wichita v. Pryor's Estate

• Decision Date: 02 September 1977
• Docket Number: No. 48463,48463
• Citation: 1 Kan.App.2d 592,570 P.2d 1380
• Parties: The SALVATION ARMY OF WICHITA, Kansas, Appellee, v. The ESTATE of Agnes M. PRYOR, Deceased, Gladys DuBois Caplinger and Faye DuBois DeVorss, Co-Executrices, Appellants.
• Court: Kansas Court of Appeals

Page 1380

570 P.2d 1380

1 Kan.App.2d 592

The SALVATION ARMY OF WICHITA, Kansas, Appellee, v. The ESTATE of Agnes M. PRYOR, Deceased, Gladys DuBois Caplinger and Faye DuBois DeVorss, Co-Executrices Appellants.

No. 48463.

Court of Appeals of Kansas.

Sept. 2, 1977.

Syllabus by the Court

1. Ademption has been defined as the term used to describe the act by which a specific legacy has become inoperative by the withdrawal or disappearance of the subject matter from the testator's estate in his lifetime.

2. A legacy is specific when the bequest is of some definite and specific thing capable of being designated and identified as compared to a general legacy which does not direct the delivery of a particular thing but can be paid or satisfied out of the general assets.

3. The testators, having made provisions for the executor to convert all of their estate, real, personal and mixed, to cash and then distribute the cash to seven charities in equal proportion, made general bequests and the doctrine of ademption does not apply.

4. When due notice is given, an order of final settlement of an estate made by the probate court pursuant to the probate code is a final order binding upon all persons interested in the estate, and the order of final settlement, if not appealed from, becomes final and conclusive against collateral attack.

5. When real estate is directed by will to be converted into money, it is in equity regarded as if it were money at the time of the death of the testator. That it was not mandatory that it be sold until after the termination of a life estate is immaterial. Equity regards substance and not form and considers as done that which is required to be done. Because the sale was directed absolutely, the time is immaterial.

6. When the remainderman is able to prove trust funds are in existence and to follow and identify the trust funds, a constructive trust will be imposed on the funds. The remainderman's claim will be allowed if the life tenant breached a fiduciary duty by making a gift of the property by will even though the transferee had no notice of the trust duties of the transferor if the remainderman is not guilty of laches or barred by some statute of limitations other than the nonclaim statute.

7. When the decedent was the sole beneficiary under the will of a deceased sister whose estate had been fully administered and closed eighteen months prior to the death of the decedent, and a "demand" is filed in the decedent's estate in an effort to recover money due the petitioner as a result of the deceased sister having breached a joint, mutual and contractual will and for money rightfully belonging to the petitioner as remainderman of a life estate held by the deceased sister, the record is examined and it is held: The demand should have been filed in the estate of the deceased sister and, in the absence of clear and convincing proof of a breach of fiduciary duty, actual or constructive fraud, or some other form of unconscionable conduct, appellee's claim, insofar as it attempts to recover money due the petitioner as a result of the deceased sister having breached a joint, mutual and contractual will, is barred by the nonclaim statute K.S.A. 59-2239. The claim, having been timely filed, is not barred insofar as it attempts to recover the remainder of a life estate.

John P. Sheahon and Harold H. Chase, Salina, for appellants.

Kenneth F. Ehling and Robert E. Upp, Hutchinson, for appellee.

Before SPENCER, P. J., and ABBOTT and SWINEHART, JJ.

ABBOTT, Judge:

This is an appeal by the co-executrices of the estate of Agnes M. Pryor, deceased, from a district court order allowing a claim of The Salvation Army of Wichita, Kansas, in the sum of $12,143.55 by imposing a constructive trust on the assets of the estate. The assets upon which the trust was imposed were acquired by Agnes M. Pryor during her lifetime by inheritance from the estate of her sister, Gussie McClure, in violation of a joint, mutual and contractual will that had been probated on the death of Gussie McClure's husband, John F. McClure.

John F. McClure and Gussie McClure were husband and wife. During their lifetime they entered into what all parties now concede was a joint, mutual and contractual will. John F. McClure died on March 9, 1957. His joint, mutual and contractual will dated January 6, 1953, was admitted to probate in the probate court of Sedgwick County, Kansas. Gussie McClure was appointed executrix and the estate was fully administered. The estate was probated and the executrix was discharged on April 22, 1958.

The will of John F. McClure and Gussie McClure read in pertinent part:

"ITEM FIRST We direct that our just debts and funeral expenses be paid and that a suitable tombstone be placed at our graves either by the survivor of us or the Executrix of the survivor as hereinafter appointed.

"ITEM SECOND We each give and bequeath to the other spouse respectively, John F. McClure and Gussie McClure, all of our personal property absolutely.

"ITEM THIRD We each give and devise a life estate in all of our real property to the other spouse respectively, John F. McClure and Gussie McClure, together with all rents, issues and profits thereof. We also give the survivor of us the power to sell and convey such real property during his or her life time in the event that such action may seem advisable and to use the proceeds thereof, if necessary, for the support, maintenance and comfort of such survivor.

"ITEM FOURTH We hereby further give, devise and bequeath to the Executrix hereinafter appointed all of our Estate, real, personal and mixed that may remain at the death of the survivor, subject to only to Item First herein. We hereby direct that said Executrix shall, as soon as possible, after our death sell and convert all real and personal property, that the survivor of us shall have at the time of his or her death, into cash and after paying our debts and funeral expenses, the expense of buying and erecting a monument at our graves, if the same has not already been done, and the payment of all costs and expenses of administration, divide the balance of the same in equal proportions to the following institutions, to-wit:

The Methodist Church,

Valley Center, Kansas.

The Christian Church,

Valley Center, Kansas.

The Baptist Church,

Valley Center, Kansas.

The Park Church,

Sunnydale, Kansas.

The Midwest Bible and Missionary Institution,

Salina, Kansas.

The National Broadcasting System,

Long Beach, California. (Charles Fuller)

The Salvation Army,

Wichita, Kansas.

The said organizations shall have full discretion in how they shall use the funds they are given. We further will and ordain that if any of the above institutions are not in being when the survivor of us shall die, then the legacy to such institution shall lapse and the residuary estate shall be divided among the others set out."

The journal entry of final settlement made distribution as follows:

"IT IS, FURTHER, BY THE COURT CONSIDERED, ORDERED, ADJUDGED AND DECREED that the balance of the funds on hand, together with all other personal property, owned by the decedent at the time of his death, subject to any unlawful disposition thereof heretofore made, is hereby assigned to Gussie McClure, and the same shall be distributed to her immediately.

"IT IS, FURTHER BY THE COURT CONSIDERED, ORDERED, ADJUDGED AND DECREED that the following described real estate, to-wit:

The Northeast Quarter (NE/4) of Section Nineteen (19), Township Twenty-five (25) South, Range One (1) East, in Sedgwick County, Kansas,

together with all other real estate, and the rents, issues and profits thereof, owned by the decedent at the time of his death, subject to any lawful disposition thereof heretofore made, is hereby assigned to Gussie McClure, for life, with the power to sell and convey said real property during her lifetime in the event that such action may seem advisable and to use the proceeds thereof, if necessary, for her support, maintenance and comfort. If said real estate shall remain at the death of Gussie McClure then the same shall pass to the Executrix named in said Will, or her successors or substitutes, who shall sell and convert the same into cash and after paying all debts and funeral expenses, the expense of buying and erecting a monument at the graves of Gussie McClure and John F. McClure, if the same has not already been done, and the payment of all costs and expenses of administration, divide the balance of the same in equal proportions to the following institutions, to-wit:

The Methodist Church, Valley Center, Kansas; The Christian Church, Valley Center, Kansas; The Baptist Church, Valley Center, Kansas; The Park Church, Sunnydale, Kansas; The National Broadcasting System, Long Beach, California. (Charles Fuller); The Salvation Army, Wichita, Kansas; The Midwest Bible and Missionary Institution, Salina, Kansas,

and the said organizations shall have full discretion in how they shall use the funds they are given; provided, if any of the above institutions are not in being when Gussie McClure dies then the legacy to such institution shall lapse and the balance shall be divided among the others set out."

Sometime after John F. McClure's death, Gussie McClure moved into the home of her sister, Agnes M. Pryor, in Reno County, Kansas. A new will was drawn and executed on March 17, 1968, whereby Gussie McClure bequeathed $5,000 to her brother and the remainder to Agnes M. Pryor. Gussie McClure was eighty-three years old when she executed the will on March 17, 1968. Gussie McClure's brother preceded her in death, leaving Agnes M. Pryor as the sole beneficiary of Gussie McClure's last will. The real estate was disposed of during the lifetime of Gussie McClure.

Gussie McClure died on April 30, 1972. Her will dated March 17, 1968, was admitted to probate in the probate court of Reno County, Kansas. No actual notice was given to any of the charitable institutions named in the...