Snyder's Estate, In re

• Decision Date: 12 July 1967
• Docket Number: No. 44986,44986
• Citation: 430 P.2d 212,199 Kan. 487
• Parties: In the Matter of the ESTATE of D. E. SNYDER, Deceased. Danny SNYDER and Robert Snyder, Appellants, v. T. D. HAMPSON, Executer under the Last Will of D. E. Snyder, Deceased, and May Snyder, Appellees.
• Court: Kansas Supreme Court

Page 212

430 P.2d 212

199 Kan. 487

In the Matter of the ESTATE of D. E. SNYDER, Deceased.

Danny SNYDER and Robert Snyder, Appellants, v. T. D. HAMPSON, Executer under the Last Will of D. E. Snyder, Deceased, and May Snyder, Appellees.

No. 44986.

Supreme Court of Kansas.

July 12, 1967.

Rehearing Denied Aug. 31, 1967.

Syllabus by the Court.

1. Ademption is the term used to describe the act or acts by which the subject matter of a specific devise or bequest has been disposed of, made to disappear, with-drawn from testator's estate, or by which the testator's interest therein is so altered or changed as to be converted into another form during the lifetime of the testator so as to make the specific devise inoperative.

2. A will speaks from the time of the testator's death unless it plainly shows a contrary intention and, whether a contract of sale has so altered a testator's interest in real estate previously devised so as to work an ademption of a specific devise thereof, is to be determined in the light of facts and circumstances existing at the time of testator's death.

3. In an action to determine the right to proceeds of a sale of real estate previously devised by specific devise, where the contract of sale provided for the execution of a deed, the deposit thereof in escrow, the transfer of possession to vendee, wherein time is not made of essence and where vendor has received a substantial part of the purchase price, it is held: There was an ademption of the specific devise and the devisees named in the will are not entitled to proceeds of the sale.

Robert V. Talkington, Iola, argued the cause, and Ben L. Humphreys, Girard, and J. D. Conderman, Iola, were with him on the briefs for the appellants.

Douglas Hudson, Fort Scott, argued the cause, and Robert O. Karr, Girard, and Douglas G. Hudson and David Mullies, Fort Scott, were with him on the briefs for the appellees.

KAUL, Justice.

The question presented in this appeal is whether or not a specific devise of real estate was adeemed in testator's lifetime.

D. E. Snyder, sometimes referred to as testator or deceased, purchased an 840 acre ranch situated in the northern part of Crawford County on March 27, 1950. Mr. Snyder and his wife, May, moved onto the ranch in 1952 and resided there until 1959. On November 25, 1953, D. E. Snyder executed his will containing the specific devise in question pursuant to the terms of which the ranch was devised to his two nephews Danny Snyder and Robert Snyder, appellants herein, subject to certain conditions and limitations.

On September 30, 1959, D. E. Snyder and wife, May, entered into an agreement with Roy King Company, Ltd., a corporation, for the sale of the ranch for the sum of $63,000.00. The agreement, referred to hereafter as the King agreement or contract, designated the Girard National Bank as escrow agent and provided for the payment of $1,000 upon the execution of the contract, receipt of which was acknowledged; $1,500 on November 15, 1959; $2,500 on April 1, 1960; and $2,500 semiannually thereafter on October 1 and April 1 of each year for six years. It was further provided that at the end of six years, on April 1, 1966, the King Company should pay such additional amounts as necessary to make a total principal payment on the contract of $20,000, and then the King Company should execute a note and mortgage on the real estate for the balance of $43,000. The note and mortgage were to bear interest at the rate of five percent, payable semiannually and the principal was payable in 15 years, with the privilege of paying any or all of the principal at that time.

The contract further provided that Snyders were to pay the 1959 taxes and that thereafter the King Company was to regularly and seasonably pay all taxes and assessements becoming due on said premises and should keep the improvements on said premises insured for a sum of not less than $12,000, the policy to be placed in escrow. Snyders agreed to transfer all insurance then held by them on the improvements to the King Company who was to pay the pro rata value of the same. It was further agreed Snyders would execute a warranty deed and deposit it together with the abstract of title in escrow.

The agreement further provided that in case King Company failed to make the payments provided for in a period longer than six months or failed to pay the taxes or supply insurance then the warranty deed and abstract were to be returned to Snyders and all payments made under the terms of the contract would be considered as rent and King Company was to immediately surrender possession to Snyders.

A part of the prefatory paragraph of the agreement reads as follows:

'Whereas the parties of the first part have this day sold the following described estate, to-wit:

'(describing it.)' (Emphasis supplied.)

On April 14, 1961, Roy King Company Ltd., assigned to Donald G. Rutherford and his wife, Marihta Rutherford, all of its right, title and interest in the Snyder contract and to the real estate described therein for the total sum of $74,250.00. On the same date an agreement, entitled contract of sale of real estate, was entered into between the Snyders and the Rutherfords for the total sum of $57,481.58, which was designated as the balance due Snyders in the assignment agreement between King Company and Rutherfords.

The contract between Snyders and Rutherfords, hereafter referred to as the Rutherford contract, provided generally for payments and the execution of a note and mortgage as had been provided for in the King Company contract. In the Rutherford contract it was announced that sellers (Snyders) agree to sell, convey and warrant unto buyers (Rutherfords) the real estate in question. Forfeiture in the Rutherford contract was changed from that provided for in the King contract in that a grace period of one year instaed of six months was established. Escrow requirements as to both parties were detailed. Possession was transferred to Rutherfords as follows:

'3. POSSESSION: BUYERS shall have possession of the real estate hereby sold in present condition at the time and in accordance with the terms and conditions of certain assignment of even date from ROY KING COMPANY, LTD., a Delaware corporation, to BUYERS.' (Emphasis supplied.)

On December 7, 1964, D. E. Snyder died. On that date the balance due on the Rutherford contract amounted to $49,458.96, which was reduced by a payment of Rutherfords to $43,000.00 on March 21, 1966. On December 18, 1964, May Snyder was appointed administratrix of the estate of D. E. Snyder. In November of 1965 the will in question was discovered and admitted to probate on December 27, 1965. T. D. Hampson, who was nominated in the will, was appointed executor.

The executor filed a petition for final settlement of the estate in which the ademption of the specific devise to the appellants was recognized. The appellants filed written defenses to the petition for final settlement asserting claims to the unpaid balance of the principal under the contract of sale to King Company and asking that the 840 acre ranch be assigned to Danny Snyder and Robert Snyder subject to such contract of sale. The appellants made no claim to any cows or interest in any cows owned by the ceceased at the time of his death.

On March 3, 1966, the probate court denied the executor's claim of ademption and assigned the 840 acre ranch to the two nephews, appellants herein, subject to the Rutherford contract and further ruled that the proceeds of the sale thereof, both principal and interest, paid since the death of the testator should be distributed one-half to Danny Snyder and one-half to Robert Snyder, and that the testator's one half interest in the note of the Rutherfords should be assigned to the two nephews, the result being that May Snyder, the widow, would own one-half thereof and each nephew one-fourth. From this ruling of the probate court May Snyder appealed to the district court.

In March of 1966, the Rutherfords having made the required payments demanded and received the deed from the escrow agent.

On September 27, 1966, the district court heard the matter on a stipulation of facts and reversed the ruling of the probate court by holding that an ademption of the specific bequest to appellants had been effected at the time of the death of D. E. Snyder, and modified the probate court's order of distribution accordingly. The two nephews, Danny Snyder and Robert Snyder, thereupon perfected this appeal.

The provisions of the all of D. E. Snyder pertinent to our consideration read as follows:

'SECOND: I have enjoyed my experience as a farmer and a stockman, particularly in connection with the development of a Hereford herd. I want to make a provision for my nephews, Danny Snyder and Robert Snyder, with the particular thought that they likewise might carry on the Snyder name in connection with good farming practice and the further development of the Hereford cattle. I, therefore, give, devise and bequeath to Danny Snyder and Robert Snyder, my nephews, a 840 acre ranch situated in the northern part of Crawford County, Kansas, and in connection with said devise, bequeath to said Danny Snyder and Robert Snyder one hundred (100) Hereford cows, if I have that many at the time of my decease and if not, what cows I might have on said ranch at the time of my decease. The foregoing devise of said real estate is to the said nephews, to share and share alike, but with this further limitation: It is a condition and a limitation that said Danny Snyder and Robert Snyder, or either of them, shall not dispose of said ranch by sale, mortgage, encumbrance, or in anywise encumber it until the youngest of them shall have attained the age of forty-five years. In the event said Danny Snyder or Robert Snyder shall fail to pay the taxes upon said real property previous to the youngest attaining the age of rorty-five years, then the land shall pass as hereinafter provided. In...