Votapka v. Votapka

• Court: Kansas Supreme Court
• Writing for the Court: SLOAN, J.
• Citation: Votapka v. Votapka, 136 Kan. 224, 14 P.2d 732 (Kan. 1932)
• Decision Date: 08 October 1932
• Docket Number: 30730.
• Parties: VOTAPKA v. VOTAPKA et al.

14 P.2d 732

136 Kan. 224

VOTAPKA v. VOTAPKA et al.

No. 30730.

Supreme Court of Kansas

October 8, 1932

Syllabus by the Court.

Under will devising property to son in consideration of son making money payments to named persons, stipulated payments held not condition precedent to vesting of title in son, but remained charge against property until paid (Rev. St. 1923, 22--258 67--202).

A testator devised all of his property to his son "for the following consideration and payment from my estate to my heirs as follows." Direction is then given to the son to pay certain sums to the persons named within one year from the date of the death of the testator. There is no devise over and nothing to indicate that the testator contemplated the failure of the devise. Held, that the payments provided for in the will were not a condition precedent to the vesting of the title, but were a charge against the property devised to the son.

Appeal from District Court, Decatur County; Edward E. Kite, Judge.

Action by Jerry Votapka against Frank Votapka and others. Judgment in favor of the defendants, and the plaintiff appeals.

J. P Noble and J. M. Bremer, both of Oberlin, and W. H. Clark, of Hoxie, for appellant.

J. F Peters, of Oberlin, and T. D. Relihan and A. W. Relihan, both of Smith Center, for appellees.

SLOAN J.

This was an action in partition involving the construction of a will.

Charles Votapka, Sr., a widower, died testate on December 24, 1929 and left surviving him four children, the appellant, Jerry Votapka, the appellee Frank Votapka, and Charles Votapka, Jr., and Jane Haley. The children were all of age and married at the time of the death of the testator. The testator died seized of about 560 acres of land in Decatur county, which is the subject of this action. On February 13, 1930, the children met at the Farmers' State Bank in Jennings. The deposit box of the testator was opened, the will taken therefrom and read in the presence of the children. To save the cost of probating the will, it was orally agreed among them that deeds would be executed to Frank Votapka for the land; that he would in turn pay all of the debts of the estate, including the erection of a monument at the grave of the testator, and would execute notes to each of the beneficiaries named in the will for the amounts stated in the will. This agreement was performed by all of the parties except the appellant, who was dissatisfied with the will. The matter appears to have been carried on for some time with the hope of a settlement, which was not accomplished. This suit in partition was filed by the appellant May 23, 1931, asking that the land be partitioned according to the laws of descent and distribution. After the filing of the suit, the appellees presented the will to the probate court of Decatur county for probate, and it was regularly admitted to probate on August 14, 1931. The appellees, in answer to the petition, set up the will and the order admitting it to probate and also the agreement entered into by the parties. The will was properly executed and admitted to probate. It provided that the just debts and funeral expenses of the testator should be paid as soon after his death as convenient, and contained the following bequests, making a complete disposition of the property of the deceased:

"Second: I bequeath to my son Frank Votapka, all my property, real, personal or mixed of which I die seized, for the following consideration and payment from my estate to my heirs as follows:

"My son Frank Votapka is to pay within one year after my decease to my son Jerry Votapka, $3,000.00 (Three Thousand Dollars).

"My son Frank Votapka is to pay within one year after my decease, to my son Charles Votapka, Jr., $3,000.00 (Three Thousand Dollars.)

"My son Frank Votapka, is to pay within one year after my decease to my daughter Jane Haley, $2,000.00 (Two Thousand Dollars), and to cancel without charges of any nature, all indebtedness of my daughter Jane Haley, of which may appear in my estate, in the way of notes, mortgages, accounts, judgments, etc.

"My son Frank Votapka is to place on time deposit in some guaranteed bank to the credit of my Grand daughter, Blanche Prachejl, $250.00 (Two Hundred Fifty Dollars) the said bank to deliver said amount with interest to my grand-daughter when she becomes eighteen years of age.

"My son Frank Votapka is to pay within one year after my decease to my sister, Bessie Votapka, $150.00 (One Hundred Fifty Dollars).

"My son Frank Votapka is to pay within one year after my decease to my sister, Vince Grimm $100.00 (One Hundred Dollars)."

The appellant filed a supplemental petition in which he alleged that the appellee Frank Votapka...