Selzer v. Selzer

• Court: Kansas Supreme Court
• Writing for the Court: WEDELL, Justice.
• Citation: Selzer v. Selzer, 146 Kan. 273, 69 P.2d 708 (Kan. 1937)
• Decision Date: 10 July 1937
• Docket Number: 33388.
• Parties: SELZER v. SELZER. [*]

69 P.2d 708

146 Kan. 273

SELZER v. SELZER. ^[*]

No. 33388.

Supreme Court of Kansas

July 10, 1937

Syllabus by the Court.

The intent of testator is controlling in interpreting will, and in ascertaining such intent, court should consider will as a whole and give its provisions such construction, if reasonably possible, as will effectuate rather than defeat testator's intent.

Under will devising land to each of testator's two sons, and providing for payment to one son by other of one-half of value of buildings on land devised to such other son, such sum directed to be paid was a charge on land of son ordered to make payment, where it appeared that testator's intent in ordering payment was to effect an equal division of property.

A devisee must either accept or reject will as written, and cannot accept its benefits and reject its burdens.

Where will devising land to each of two sons provided for payment to one by other of one-half of value of buildings on land devised to such other son, acceptance of devise imported promise to pay money, and justified rendition of personal judgment therefor.

Where testator's wife was given life interest in land devised to his sons, one of whom was ordered to pay one-half of value of buildings on land devised to him to other son, statute of limitations did not begin to run against money claim until after termination of life estate, and action commenced during following year was not barred by limitations.

The failure of trial court to make requested amendments to fact findings to cover all undisputed evidence was not reversible error where requested findings would not have altered conclusion reached.

Where no demand had been made for payment of sum required to be paid under will until bringing of action therefor, about ten months after debt was due, plaintiff was entitled to interest on such sum from date of commencement of action, rather than from date of judgment or from date debt was due.

The date from which personal obligation should draw interest presented a question of law, and a motion for new trial was unnecessary to authorize consideration thereof on appeal.

1. A rule for the interpretation of wills, to which all other rules must yield, is that the intention of the testator must control. In order to ascertain that intention, it is the duty of courts to consider the will as a whole and to give to its various provisions such construction, if reasonably possible to do so, as will effectuate rather than defeat the intention of the testator.

2. A devisee must either accept or reject a will as written. He cannot accept its benefits and reject its burdens.

3. The record in an action by one remainderman against another to enforce the provisions of a will for the payment of a sum of money examined and held: (1) The money directed to be paid was properly made a charge on the land devised to the defendant remainderman; (2) the acceptance of the devise imported a promise to pay the sum of money directed to be paid by the will, and a personal judgment was properly rendered therefor; (3) the action was not barred; (4) reversible error was not committed by a failure to make requested amendments to findings of fact, and the conclusions of law were supported by the findings and the evidence; (5) under the circumstances narrated in the opinion, interest on the amount sued for should have been allowed from the date of the commencement of the action instead of from the date of judgment; (6) the question of when a personal obligation began to draw interest presented purely a question of law and a motion for a new trial was neither necessary nor proper.

Appeal from District Court, Douglas County; Hugh Means, Judge.

Action by Dan Selzer against William J. Selzer, Jr. From a judgment for plaintiff, defendant appeals, and plaintiff cross-appeals.

Judgment modified and as so modified affirmed.

R. E Melvin and Geo. K. Melvin, both of Lawrence, for appellant.

Edward T. Riling and John J. Riling, both of Lawrence, for appellee.

WEDELL Justice.

This was an action for money judgment brought by Dan Selzer against his brother William J. Selzer, Jr., to have the judgment declared a lien on real estate devised to the defendant and to foreclose the lien. Plaintiff prevailed, and defendant appeals. Plaintiff cross-appeals from that portion of the judgment only which denied recovery of an item of interest.

The controversy grows out of provisions in a will executed by the father of plaintiff and defendant. Their father died on November 20, 1924. The will was admitted to probate February 2, 1925. This action was commenced January 10, 1936. The estate is still in process of administration. The executor named in the will was made a party defendant but defaulted and died prior to the trial. No successor had been appointed. The pertinent portions of the will provide:

"Item 1: I give, devise and bequeath to my beloved wife, Anna Selzer, all of my property both real and personal during her natural life, and at her decease to be divided as follows:

"Item 2: (Description of land devised to the son, William J Selzer, Jr.)

"Item 3: (Description of land devised to the son, Dan Selzer.)

"Item 4: My son William J. Selzer, Jr., to pay to my son Dan Selzer, the sum of Fifteen Hundred Dollars ($1,500.00), which amount is one half of the value of buildings on land willed to my son William J. Selzer, Jr. "Item 5: All my personal property to be divided equally between my two sons, William J. Selzer, Jr., and Dan Selzer."

Certain facts not heretofore mentioned but contained in the findings of the court were:

"After their father's death, the two sons occupied the respective pieces of land devised to them and paid their mother rent, agreeable with the agreements she had with them respectively. The mother lived on the tract which she rented to William J. Selzer, Jr., but in a different building from that which he occupied with his family. She paid the taxes on the whole tract up to the time of her death, which occurred in April, 1935."

"Some three years after the death of the father, the two sons had a conversation in which William J. Selzer, Jr., advised his brother, Dan Selzer, that he was going to accept the land devised to him by their father, but that he did not intend to pay him the $1500.00, the payment of which was provided for in Item Four of their father's will."

"Since the mother's death, William J. Selzer, Jr., has occupied the tract devised to him, claiming to own the same, free and clear of any alleged claims which Dan Selzer may have against it."

"It was the intention of the testator, William J. Selzer, Sr., when he executed Item Four of his will, to devise the land described in Item Two of his will to William J. Selzer, Jr., and to charge said land with the payment of $1500.00 to Dan Selzer."

The conclusions of law were as follows:

"1. William J. Selzer, Jr., has elected by his conduct and pleadings to accept the devise made to him of certain real estate described in Item Two of his father's will.

"2. The land devised to William J. Selzer, Jr., is charged with the sum of $1500.00 to be paid to Dan Selzer.

"3. The cause of action set out in the plaintiff's petition is not barred by the statute of limitation."

The trial court subsequently concluded that by reason of the acceptance of the devise defendant was indebted to plaintiff in the sum of $1,500, rendered a personal judgment for that amount and ordered the lien foreclosed.

Defendant first contends the trial court erred in ruling the will created a charge on the property devised to him. The question is what was the intention of the testator. What was really in his mind when he made the will? This must be determined from a construction of the entire will. Brown v. Brown, 101 Kan. 335, 166 P. 499; Bierer v. Bierer, 121 Kan. 57, 245 P. 1039. The father made the customary provision for payment of his debts and funeral expenses. Then he provided for his wife by devising to her a life estate. He then stated just how he desired to have the remainder of his estate divided. He devised certain lands to his son, William, and certain other lands to his son, Dan. It clearly appears he was endeavoring to make an equal division of the real and remaining personal property between his two sons, on the basis of value. It appears that in order to make such an equal division of the real estate it was necessary to take into account the buildings on the land devised to William. In his judgment they were worth $3,000. He, therefore, concluded to require William to pay Dan for one-half of their value, or $1,500. Hence, he said, "William to pay to my son, Dan, $1,500.00." He then concluded by providing for an equal division of the personalty. While the devise to William and the requirement to pay to Dan are contained in separate paragraphs, it seems to us they were clearly coupled in the mind of the testator. We think the learned trial judge was entirely correct in determining it was the intention of the testator that since William was receiving the land with the buildings on it, he should respond to Dan in the amount stated and that this amount was intended as a charge on the land. We think, under a fair interpretation of the testator's intent, this conclusion follows as logically as though the will had expressly made the payment a charge on the land. Mastellar v. Atkinson, 94 Kan. 279, 283, 146 P. 367, Ann.Cas.1917B, 502. In a lengthy note in 62 A.L.R. 596, the annotator in discussing the question as to whether a charge was created says:

"The courts have, wherever possible, construed a provision for the payment of a legacy, or of a sum of money, as a charge rather than a condition precedent, in order that the estate may vest in the

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