Tompkins' Estate, In re
| Citation | 407 P.2d 545,195 Kan. 467 |
| Decision Date | 06 November 1965 |
| Docket Number | No. 44186,44186 |
| Parties | In the Matter of the ESTATE of Louisa TOMPKINS, Deceased. Dave CRAIG, Mrs. Dave Craig, Margaret Donovan Allen, William J. Donovan, Charles Donovan, Dorothy Donovan Easley, Clarence Donovan, Charlotte Donovan Titel, Mrs. Rickie Donovan, Appellees, v. Louise HILDEBRAND and Ida M. Schmidt, Administrator C. T. A. of the Estate of Charles P. Tompkins, Deceased, Appellants. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court
1. Joint and mutual last will of testators construed to be contractual on its face from the language, terms and provisions contained therein.
2. Under the language, terms and provisions of a joint, mutual and contractual will, set out in full in this opinion, a bequest to survivor of all property owned by testators with the right of disposal does not authorize gratuitous disposition by the survivor, and transfers of securities, made by him, without consideration are set aside.
3. Portions of scrivener's testimony which were wrongfully admitted over objection is immaterial error, since consideration of such testimony was unnecessary in the construction and interpretation of the will involved. The rule that parol evidence may be admitted to prove that a will was executed pursuant to an agreement, stated and applied.
Robert M. Bond, El Dorado, argued the cause, and L. J. Bond, El Dorado, with him on brief for appellants.
Terence D. O'Keefe, Atchison, argued the cause and Maurice P. O'Keefe, Steadman Ball, Dolan McKelvy and Maurice P. O'Keefe, Jr., Atchison, and R. C. Woodward and H. Pauline Woodward, El Dorado, with him on briefs for appellees.
This action was commenced in the Probate Court of Butler County, Kansas, in the estate of Louisa Tompkins, Deceased, to construe the joint and mutual will of the said Louisa Tompkins and her husband Charles P. Tompkins. The petition was filed by Charlotte Donovan Titel, a residuary legatee of said will. Subsequently an action was filed in the District Court of Butler County, Kansas, by plaintiffs Dave Craig and Mrs. Dave Craig to declare certain alleged gifts void and to compel the defendant Louise Hildebrand to deliver to Ida M. Schmidt, Administrator C.T.A. of the estate of Mr. Tompkins, properties which had been given to the defendant Hildebrand by Mr. Tompkins immediately after the death of his wife. The action to construe the will in the probate court was transferred to the district court and both cases were consolidated for trial. Trial was had before the court, and a memorandum opinion was filed in which the court found for the plaintiffs that the will involved was joint, mutual and also contractual and that the survivor could not dispose of the property except for necessities. The trial court further ordered the defendant Hildebrand to return the gifts received from Mr. Tompkins to the administrator C.T.A. to be inventoried in his estate.
The post trial motions of the defendant Hildebrand were argued and overruled by the court, and she has appealed.
None of the facts are seriously disputed and are as follows:
In November of 1956 Charles P. Tompkins and Louisa Tompkins, his wife, executed a joint and mutual last will and testiment prepared by Walter F. McGinnis, an attorney of El Dorado, Kansas. The Tompkins owned personal property of the approximate value of $24,554.43, all of which was held in joint tenancy.
Mrs. Tompkins died on March 26, 1962 at the age of 84. Mr. Tompkins died on August 15, 1962 at the age of 87. They left no surviving children. Mrs. Tompkins had a brother, Oscar Zondler, who was left one dollar in the will, a sister, Mrs. Edith Lewis, who was omitted from the will, and another sister and two brothers who predeceased Mrs. Tompkins leaving no survivors. Defendant Louise Hildebrand, a daughter of Edith Lewis, is a niece of Mrs. Tompkins and a residuary legatee together with the plaintiffs herein. Mr. Tompkins left no known heirs.
The plaintiff Mrs. Rickie Donovan is a first cousin of Mrs. Tompkins. The other plaintiffs, Margaret Donovan Allen, William J. Donovan, Charles Donovan, Dorothy Donovan Easley, Clarence Donovan and Charlotte Donovan Titel, are the children of Tim Donovan (now deceased) and Rickie Donovan, and as such are first cousins, once removed, of Mrs. Tompkins. The plaintiffs, Dave Craig and Mrs. Dave Craig were not related to the Tompkins but friends of their deceased daughter, Edith May.
In the early part of their married life the Tompkins lived in Kansas City, Kansas, and operated a bakery. After the death of their daughter Edith May, the Tompkins moved to El Dorado, Kansas, and opened a bakery there. Charlotte Donovan Titel and Mrs. Tompkins corresponded regularly and visited back and forth. In a letter written about 1935 or 1936 Mrs. Tompkins asked that Mrs. Rickie Donovan send her a list of all the names of her children and their addresses as they wanted to remember them in their will.
The defendant Hildebrand had known the Tompkins since 1935. Her mother, Edith Lewis, a sister of Mrs. Tompkins, worked in the bakery at El Dorado for some time.
The scrivener of the will, attorney McGinnis, owned property on both sides of the Tompkins bakery in El Dorado. He frequently visited with the Tompkins and talked to them about their estate from time to time over a period of a couple of years. As a result of the conversations and at the request of Mrs. Tompkins, although both were present, he wrote the will in November of 1956.
After the death of Mrs. Tompkins on March 26, 1962, Mrs. Hildebrand went to El Dorado on April 2, 1962 and saw Mr. Tompkins. The next day, April 3, 1962, she and attorney George S. Benson obtained the will from the Probate Court and read it. On the same day the following property was transferred as follows:
(a) A savings account in the Citizens State Bank, El Dorado, Kansas, in the amount of $3,128.95, to Charles P. Tompkins and defendant Hildebrand, as joint tenants.
(b) A savings account in Eureka Federal Savings & Loan Assoc., El Dorado, Kansas, in the amount of $4,015.00, to Charles P. Tompkins and the defendant Hildebrand, as joint tenants.
(c) 70 shares of R R Building Loan & Savings Assoc., fully paid shares, Newton, Kansas, of the value of $7,000.00 to the defendant Hildebrand, solely.
On approximately May 3, 1962, 60 shares of Investors Royalty Co., Inc., in the amount of $60.00 were transferred to Charles P. Tompkins and the defendant Louise Hildebrand, as joint tenants.
The body of the will is as follows:
'WE, Charles P. Tompkins and Louisa Tompkins, both of 609 1/2 West Central Street, El Dorado, Butler County, Kansas, do make and declare this to be our joint and mutual last will and testament, hereby revoking any and all other former wills by either of us heretofore made.
'First. We direct all just debts and funeral expenses be fully paid.
'Second. All property, whether jointly or separately held and whether real or personal owned by either of us is hereby devised and bequeathed to the survivor, with the right of disposal.
'Third. At the death of both of us it is our will and desire that all our property be converted into cash and that in doing so our household goods and personal belongings be forthwith sold at public auction to the highest bidder for each item.
'Fourth. We devise to Oscar Zondler of Kansas City, Kansas, the sum of one dollar in cash.
'Fifth. All of the cash so accumulated, after payment of debts and costs of administration, and payment of the above one dollar specific bequest shall be divided into nine equal parts and each of said equal parts shall be paid to:
1. Mr. and Mrs. Dave Craig, or the survivor thereof, of 211 Ashley Rivers Road, Charleston 34, South Carolina.
2. Mrs. Louise Hildebrand, 6434 East Sixteenth Street Terrace, Kansas City 26, Missouri.
3. Mrs. Margaret Donovan Allen, 507 Kemp Street, Leavenworth, Kansas.
4. William J. Donovan, 925 Tenth Avenue, Leavenworth, Kansas.
5. Charles Donovan, 608 West Ninth Avenue, Leavenworth, Kansas.
6. Mrs. Dorothy Donovan Easley, 608 Ninth Avenue, Leavenworth, Kansas.
7. Clarence Donovan, 931 Ohio Avenue, Leavenworth, Kansas.
8. Mrs. Charlotte Donovan Titel, 318 Pott St., Leavenworth, Kansas.
9. Mr. Tim Donovan and Mrs. Rickey Donovan, or the survivor thereof, 608 Ninth Avenue, Leavenworth, Kansas.
or if all of the benefitiaries of any share be deceased then the number of equal divisions shall be reduced accordingly and be divided among the survivors of the said nine above so that each party or couple shall share the same.
'Sixth. It is our will and express desire that our bodies be cremated.
'Seventh. We nominate and appoint William R. Mannion as our executor and request the Court that he be so appointed.
'IN WITNESS WHEREOF, we have hereunto our hands at El Dorado, Kansas, this ___ day of November, 1956.
Louisa Tompkins' It is agreed by the parties that there are two issues raised by this appeal. 1. Did the trial court err in ruling that the will was a joint, mutual and contractual will and that the survivor could transfer property only for necessities, and in ordering the defendant Hildebrand to redeliver to the defendant Schmidt the properties transferred to her by the survivor to be distributed equally to the residuary legatees? And, (2), Did the trial court err in admitting the testimony of the scrivener, Walter F. McGinnis, concerning conversations he had with the testators about their estate planning and the drawing of the will?
The determinative question presented here by the pleadings and the agreed statement of points for appellate review is the same as presented to the trial court, i. e., what type of estate did Charles P. Tompkins acquire in the property under the joint will at the death of Louisa under the second paragraph of the will? The answer to this question depends upon a proper interpretation of the will.
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