Weidman's Estate, In re
| Decision Date | 09 August 1957 |
| Docket Number | No. 40589,40589 |
| Citation | 181 Kan. 718,314 P.2d 327 |
| Parties | Estate of Fred WEIDMAN, Deceased. Walter WEIDMAN, Executor; Emma Weidman Dresselhaus; Anna Weidman Pankau; John Weidman; Regina Weidman Feldkamp; Lena Weidman Mollenkamp; Henry Weidman; Carrie Weidman Wilhelm; Ralph Davis; Ward Davis; Dorothy Kobbeman; and Ruth Panzer, Appellants, v. Julia Mannel WEIDMAN; Anna Mannel Veneklasen; Adam Mannel; Charles Mannel; William Alt; Arthur Alt; Carl Alt; Lenora Erickson; and William Henry Davis, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
In an appeal requiring review of a judgment construing a will and rulings made by the trial court with respect to the same subject in disposing of an appeal from probate court, the record is examined, and it is held, that under the facts, conditions and circumstances set forth at length in the opinion:
1. The trial court did not err (a) in assessing costs of the proceedings against the estate; (b) in sustaining a motion to strike a motion for new trial as amended, and a motion for new trial from the files; and (c) in sustaining a motion to strike a motion for judgment on the pleadings from the files.
2. A complaint that the district court lacked jurisdiction to hear and determine the appeal from probate court, involving construction of the will and an order of final settlement, cannot be sustained.
3. The will in question is contractual in nature and is the joint and mutual will of the persons executing it.
4. Contentions made by the appellants that such instrument was the separate will of the husband, notwithstanding the wife joined in its execution, cannot be upheld.
5. The terms and provisions of such will are ambiguous and must be construed in the light of long-established rules applicable to the construction of wills of that character.
6. The will, quoted in the opinion, examined in the light of applicable principles of law governing the interpretation and construction of a will which must be construed on the basis of intention of the parties at the time it was made, and held, that the widow takes a life estate in the estate of her deceased husband without power of disposition.
Jerry E. Driscoll, Russell, argued the cause, and Richard M. Driscoll, Russell, John J. McCurdy, and Richard W. Wahl, Lincoln, were with him on the briefs, for appellants.
V. E. Danner, Ellsworth, argued the cause, and D. B. Marshall, Jr., Lincoln, John V. O'Donnell, and R. E. Miller, Ellsworth, were with him on the briefs, for appellees.
This appeal requires construction of a will and a review of rulings made by the trial court with respect to the same subject on an appeal from probate court.
On November 2, 1950, Fred Weidman and Julia Mannel Weidman, who were at that time and since June 19, 1924, had been husband and wife and had no children joined in the execution of a will which, including its attestation clause, reads:
'In the Name of God: Amen
'We, Fred Weidman and wife Julia Mannel Weidman, of Lincoln, County of Lincoln, State of Kansas, being of sound mind and memory and considering the uncertainty of this frail and transitory life, do therefore make, ordain, publish and declare this to be our Last Will and Testament.
'First: We order and direct that our executor herein after named, pay all our just debts and funeral expenses as soon after our deceasing as conveniently may be.
'Second: We give, devise and bequeath to our beloved brothers and sisters the balance of our property, real, personal and mixed of what nature where so ever the same may be at the time of our death.
'The legal Mannel heirs are Louise Mannel, Anna Mannel, Adam Mannel and Chas. Mannel.
'If any of the above named heirs are deceased, then their part may be legally received by their legal heirs.
'Fifth: In the event any of the above named heirs or their spouses disagree and shall cause any undue trouble, the same shall be automatically discharged as a legal heir or heirs and will forfeit their legal rights as heirs in this case.
'In Witness Whereof, We hereunto subscribe our names and affix our seal this second day of November, One thousand nine hundred and fifty.
'/s/ Fred Weidman
'/s/ Julia Weidman'
'This instrument was on the day of the date thereof, signed, published and declared by the said testators Fred Weidman and Julia Mannel Weidman to be their Last Will and Testament in our presence who at their request have subscribed our names as witnesses in their presence and in the presence of each other.
'Name Address
'/s/ Mrs. Erna Feldkamp Lincoln, Kansas
'/s/ W. C. Feldkamp Lincoln, Kansas.'
Fred Weidman died on March 7, 1955. At that time he was approximately 78 years of age and his wife was approximately 69. Within a few days after Fred's death Walter Weidman filed a petition in probate court, to which he attached the foregoing will, asking that such instrument be admitted to probate as the decedent's last will and testament. By order of the probate court, dated April 8, 1955, this petition was granted, the will was admitted to probate and Walter was appointed executor to serve without bond. Thereafter the executor caused an inventory and appraisement of the estate to be made which, when returned by the appraisers, showed the assets of such estate consisted of real estate, valued at $22,500, and personal property, valuved at $7,605.81.
On May 5, 1955, Julia Weidman filed an instrument in probate court whereby, as widow, she elected to take and abide by the terms of her deceased husband's last will and testament.
Eleven months later, on April 10, 1956, the executor filed his petition for final settlement wherein, so far as the record shows, it became apparent that he was claiming for the first time that the will, although jointly executed, was either Fred's separate will or that, in any event, his widow took nothing under its terms and provisions. It suffices to say such petition recited that Julia, as the wife of decedent was the only person who would inherit from him under the laws of intestate succession and that she had consented in writing to such will and had filed her election to accept the provisions thereof; charged that the persons specifically named in the will as the brothers and sisters of Fred and Julia were the only legatees and devisees under the will, and under its terms, were entitled to have assigned to them all property, both real and personal, owned by such decedent on the date of his death; and prayed for final settlement of his estate, that the court determine the heirs, devisees and legatees entitled thereto to be the persons named in the petition, that it assign the assets of the estate, including the remaining cash, personal property and real estate, to such persons in accord with the terms of the will, and that upon the filing of receipts showing disbursements and distribution to such persons the petitioner be finally discharged as executor.
May 4, 1956, Julia filed a written defense to the petition for final settlement wherein, among other things, she alleged (1) that under the terms of the will it was the intent of the testator that she was to have a life estate in all of his property, personal, real and mixed, and (2) that her name to such will was not consent thereto but intended to show the intent of the testator and herself that the instrument, as executed, was to be the mutual will of the two testators therein named, not the separate will of either of them, and not, therefore, to pass any property, except vested interest, to the brothers and sisters specifically named therein; and prayed that the probate court construe the will in its entirety, give effect to its meaning, and that she be determined to have a life estate in all property owned by Fred on the date of his death.
The probate court disposed of Julia's written defense and the petition for final settlement on the same day. For all purposes here important it may be stated its journal entry of final settlement discloses that it hears evidence on both matters and then, after construing the will, found (1) that Julia had consented to the will and filed her election to accept the provisions thereof; (2) that it was not the intention of the testator to create a life estate in his property in favor of Julia and that the terms of such will did not create a life estate in her favor; and (3) that under the terms of that instrument the persons therein identified as the legal Mannel and Weidman heirs (naming them) were the sole devisees and legatees of Fred and entitled to all property owned by him at the time of his death. Thereupon, based upon such findings, it assigned all real and personal property inventoried a part of his estate to such persons and directed that all cash remaining in the hands of the executor be distributed to them according to their respective interests.
In due time Julia appealed from the decree of final settlement to the district court, specifying in her notice of appeal that she was appealing from all orders, judgments and decrees and decisions of the probate court wherein that court interpreted the will of the decedent testator and ordered final settlement of his estate.
When the case reached the district court the executor moved for judgment on the pleadings. Julia then moved to strike such motion from the files. Upon the sustaining of this last motion and a subsequent order striking the executor's motion for judgment from the files the parties in open court, by oral stipulation and agreement, submitted the cause to the...
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