Smyth v. Thomas
| Decision Date | 04 March 1967 |
| Docket Number | No. 44437,44437 |
| Citation | 198 Kan. 250,424 P.2d 498 |
| Parties | Betty SMYTH, Appellant, v. Constance Winters Schubmehl THOMAS et al., Appellees and Cross Appellants, and Victoria Sue Smyth and Elizabeth Eve Smyth, Minors, Appellants. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Where some uncertainty or ambiguity appears in a will, the rule is that the intention of the testator must prevail if it reasonably appears. Courts favor reasonable and consistent interpretations, rather than literal or critical interpretations which result in ascribing unnatural and unreasonable intentions to a testator. Doubtful expressions are not to override an obvious intent which is evident from an examination of the entire will. In construing a will a court should place itself as nearly as possible in the situation of the testator when he made the will, and, from a consideration of that situation and from the language used in every part of the will, determine, if possible, the purposes and intentions of the testator from the language used.
2. In an action to quiet title to real estate in which provisions of item X of a will are drawn into consideration, the record is examined and, all as fully set forth in the opinion, it is held:
(a) The provisions in question are construed to mean that in the event the second life tenant should not be survived by 'lawful issue born in wedlock' the subject property was to go to his sisters' children who survived him.
(c) The provisions in question did in wedlock' did not include adopted children.
(c) The provisions in question did not violate the rule against perpetuities.
(d) A judgment, correct in result, is not to be set aside on the ground it was reached through the process of erroneous reasoning.
Lester C. Arvin, Wichita, argued the cause, and Kay K. Arvin and Rodney H. Busey, Wichita, were with him on the brief for Betty Smyth, appellant.
Eugene L. Pirtle, Wichita, argued the cause and was on the brief for Victoria Sue Smyth and Elizabeth Eve Smyth, appellants.
Paul R. Kitch and Roetzel Jochems, Wichita, argued the cause and Willard B. Thompson, Hugo T. Wedell and Richard A. Loyd, Wichita, were with them on the brief for appellees and cross-appellants.
This is an action to quiet the title to real estate in the city of Wichita.
The question in the case concerns the construction of certain language contained in item X of a will.
Allegations of the pleadings need not be detailed. The contentions of the parties will be evident as the facts are developed.
On April 5, 1932, Charles H. Smyth, a resident of Wichita, executed his last will and testament. Mr. J. Wirth Sargent, an attorney of Wichita, was the scrivener. The testator died on November 5, 1933, and his will was admitted to probate. He was survived by his wife Anna, a daughter Maebell Smyth Hyde, a daughter Constance Jane Harrington Winters, and a son Charles F. Smyth, hereafter referred to as Charles.
After providing for a number of bequests, the will bequeathed and devised to the wife, Anna, a life estate in all of the remaining property.
In item VIII of the will, after the death of Anna, a life estate in certain described real property was devised to the daughter Maebell, with remainder over in fee simple to such of the children of Maebell as shall survive her.
In item IX of the will, after the death of Anna, a life estate in certain described real property was devised to the daughter Constance, with remainder over in fee simple to such of the children of Constance as shall survive her.
The property devised in the foregoing portions of the will is not involved in this action.
Item X of the will-the provisions of which are the basis of this action-reads:
'X
'After the death of my beloved wife, or at my death, in the event my wife predeceases me, I devise a life estate in and to the following described real estate, situated in Sedgwick County, Kansas, to-wit:
(Description omitted.)
to my beloved son, Charles F. Smyth, he to have the rents, issues and profits therefrom during his life time; paying all taxes, insurance and other charges on said buildings; with remainder over in fee simple to the lawful issue of said Charles F. Smyth born in wedlock, who may survive him, provided that in the event said Charles F. Smyth shall die without such issue, then the remainder in fee simple to the children surviving my daughters, Constance Jane Harrington Winters and Mae bell Smyth Hyde, per capita, share and share alike, and subject to the payment to Margaret Smyth, the present wife of Charles F. Smyth, if she survive him, of the sum of fifty thousand dollars ($50,000.00), said sum to be raised by placing a mortgage upon the above described property by the then owners thereof, if necessary, provided further that if Margaret Smyth shall predecease my son, Charles F. Smyth, then said property shall be charged with a payment of $25,000.00 to Barbara Smyth, daughter of Margaret Smyth, if said Barbara Smyth survives my son, said sum to be raised as aforesaid.' (Emphasis supplied.)
Under item XIII of the will, the wife Anna is the residuary legatee and devisee of the estate. She was named executrix, and she executed her written consent to the will. The final paragraph of the will provides:
'* * * It is further my will that J. Wirth Sargent be permitted to testify concerning the provisions of this will, and that his interpretation shall be prima facie evidence thereof.'
Mr. Sargent was a subscribing witness to the will.
As stated, the testator was survived by his wife Anna and his three children, Maebell, Constance and Charles.
On September 29, 1937, Anna, as residuary devisee under the will-and reserving to herself a life estate, including the rents and profits-executed to Charles a quitclaim deed to the property described in item X of the will, above, in the following language:
'* * * he, the said Charles F. Smyth, to have the rents, issues and profits therefrom during his lifetime, paying all taxes, insurance and other charges on said buildings; with remainder over in fee simple to the lawful issue of said Charles F. Smyth, who may survive him; provided, that in the event said Charles F. Smyth shall die without such issue, then the remainder in fee simple to the children of my daughters, Constance Jane Harrington Winters and Mae Bell Smyth Hyde, who shall survive Charles F. Smyth, per capita, share and share alike; and subject to the payment of Margaret Smyth, wife of Charles F. Smyth, if she survive him, of the sum of $50,000.00, said sum to be raised by placing a mortgage upon the above described property by the then owners thereof, if necessary, provided, further, that if Margaret Smyth shall predecease Charles F. Smyth then said property shall be charged with the payment of $25,000.00 to Barbara Smyth, daughter of Margaret Smyth, if said Barbara Smyth survives my son, Charles F. Smyth, said sum to be raised as aforesaid.
'The consideration of this deed is love and affection and to perfect title by providing that the remainder in fee simple shall go to the children of Constance Jane Harrington Winters and Mae Bell Smyth Hyde, per capita, share and share alike, who shall survive said Charles F. Smyth, the will of Charles H. Smyth not being clear as to the contingent remainder.' (Emphasis supplied.)
This deed was prepared by Mr. Sargent, the scrivener of the will, and bears his signature and notary seal on the acknowledgment. It was filed for record on December 8, 1937.
At the time the will was executed and at testator's death-Margaret Smyth (mentioned in item X of the will and in the 1937 deed from Anna to Charles) was the wife of Charles. They were divorced in April, 1945. She is still living.
Testator's daughter, Constance, died on June 27, 1949. She was survived by two children, a daughter, Constance Winters Schubmehl Thomas, and a son, Charles Smyth Harrington, a/k/a Jerome Winters, a/k/a Jerome Harrington. These two children are still living and are of lawful age.
Testator's widow, Anna, died on October 7, 1950.
Following the 1945 divorce of Charles and Margaret-Charles, on a date not shown-was married to Betty, the plaintiff in this action.
On September 21, 1963, Charles, joined by his wife Betty, executed a general warranty deed conveying to Betty the real property described in item X of the will and in the 1937 deed from his mother, Anna, to him. It was filed for record on October 16, 1963.
Charles died on February 5, 1964. He was survived by his wife Betty and two adopted daughters, Victoria Sue Smyth and Elizabeth Eve Smyth, age 16 and 7.
Testator's daughter, Maebell Smyth Hyde, is still living. She has had four children, two of whom predeceased Charles. The other two, Ann D'Arcy Hyde Cory Eustis and Theodore Alvan Hyde are still living and are of lawful age.
It will be seen, therefore, that when Charles died in February, 1964, he was survived by his wife Betty and two adopted minor children. He also was survived by Margaret, his former wife, and by two children of his sister Maebell, and by two children of his prior deceased sister Constance.
It is the emphasized portion of item X of the will, above, which brought about this dispute.
On the one hand it is contended that should Charles not be survived by lawful issue born in wedlock, the property passes to the children of Maebell and Constance, who survive them-and, since Maebell is still living-the 'infirmities' in the provision in question are obvious, and that Betty takes under the 1963 deed from Charles (and herself) to her. The two adopted children of Charles claim an interest either under the language of item X or under the law of intestate succession.
On the other hand, the four children of Maebell and Constance, who survived Charles, contend the obvious intent of the testator was that should Charles not be survived by lawful issue born in wedlock, the property passes to them upon his death, subject to the...
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