Warlick v. Boone

• Decision Date: 09 January 1926
• Docket Number: 26,414
• Citation: 120 Kan. 148,242 P. 135
• Parties: R. L. WARLICK, Appellee, v. JOHN NORTH BOONE et al., Appellants, and A. P. WARLICK, Appellee
• Court: Kansas Supreme Court

242 P. 135

120 Kan. 148

R. L. WARLICK, Appellee, v. JOHN NORTH BOONE et al., Appellants, and A. P. WARLICK, Appellee

No. 26,414

Supreme Court of Kansas

January 9, 1926

Decided January, 1926.

Appeal from Riley district court; FRED R. SMITH, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

WILLS--Legacies--Property Charged--Evidence. A will gave two legatees $ 1,500 each, and appointed an administrator. These provisions constituted the entire will. When the will was made the testator's estate consisted of a note for $ 3,000, secured by mortgage. Subsequently, the testator invested the proceeds of the note in land. When he died, his estate consisted of the land and barely enough personalty to pay his few debts and his funeral expenses. Held, the will did not charge the real estate with payment of the legacies, and parol evidence of an intention to do so was not admissible.

R. P Evans and George Clammer, both of Manhattan, for the appellants.

George D. Rathbun, of Manhattan, for the appellee.

OPINION

BURCH, J.:

The action was one by an heir to partition real estate of Sidney Monroe Warlick, deceased, who died testate. The probated will was exhibited in the petition. The defendants, who are the executor and the legatees under the will, answered that it was necessary for the executor to appropriate the land in order to satisfy legacies which it was alleged were charged on the real estate. On motion of plaintiff, this part of the answer was stricken out, and defendants appeal. The question is whether the legacies were charged on the real estate.

The will was executed on April 1, 1916. At that time the testator owned no real estate, but did own a note for $ 3,000, secured by mortgage. The entire will, omitting formal parts, reads as follows:

"First, I give, devise and bequeath to my half sister, Minnie Lewellin Boone, of Morganton, Burke Co., North Carolina, the sum of fifteen hundred dollars ($ 1,500).

"Second, I give, devise and bequeath to my half brother, John North Boone, of Morganton, Burke Co., North Carolina, the sum of fifteen hundred dollars ($ 1,500).

"Third, I hereby appoint Rollin W. Yenawine executor of this will and testament."

The testator died December 12, 1924. He left personal property barely sufficient to pay his few debts and his funeral expenses, and real estate including that in controversy. His heirs are his brothers, R. L. Warlick and A. P. Warlick, and a brother and sister of the halfblood, John North Boone and Minnie Lewellin Boone. The answer alleged that, after the will was executed, the testator invested the proceeds of the note in the real estate, with the intention the legacies should become a charge thereon. The answer also contained the following:

"At the time of the execution of said will and at all times thereafter to the time of his death, said S. M. Warlick intended that pecuniary bequests to these answering defendants should be paid at all events; and that same should be a charge upon any and all real estate of which the said Sidney M. Warlick might die seized; that the said Sidney M. Warlick knew at the time of his death and some time prior thereto that he owned no personal property that could be employed to satisfy the pecuniary bequests; and that within a very few days of his death, knowing the fact to be that he had no personal property out of which to satisfy said bequests, he, in writing, signified his desire to have S. J. Yenawine appointed as executor of his will; and at said time he expressed the desire to have his will carried out by the said executor; that the said Sidney M. Warlick, at the time of the execution of said will and on other occasions thereafter and up to within a few days of his death, expressed the desire that the said bequests be paid out of his estate, and, as one of the reasons therefor, stated that these answering defendants had for years taken care of the mother of said Sidney M. Warlick and of these answering defendants."

It is a rule of law that legacies are payable out of personal estate only, unless a contrary intention be derivable from the will, and if personal estate be insufficient to pay gifts not charged on land, they fail. Legatees may be disappointed and...