Wernet's Estate, Matter of

• Decision Date: 09 June 1979
• Docket Number: No. 50267,50267
• Citation: 596 P.2d 137,226 Kan. 97
• Parties: In the Matter of the ESTATE of Maggie L. WERNET, Deceased.
• Court: Kansas Supreme Court

Page 137

596 P.2d 137

226 Kan. 97

In the Matter of the ESTATE of Maggie L. WERNET, Deceased.

No. 50267.

Supreme Court of Kansas.

June 9, 1979.

Syllabus by the Court

1. Where a court, either trial or appellate, is called upon to determine the force and effect to be given the terms of a will, its first duty is to survey the instrument in its entirety and ascertain whether its language is so indefinite and uncertain as to require the employment of rules of judicial construction to determine its force and effect; and where from an analysis of the entire instrument no ambiguity or uncertainty is to be found in its language, the intention of the testator being clearly and unequivocally expressed, there is no occasion to employ rules of judicial construction and the will must be enforced in accordance with its terms and provisions.

2. When the language of a will is clear, definite and unambiguous, the court should not consider rules of judicial construction to determine the intention of the testator.

3. In the interpretation of wills the primary function of the court is to ascertain the testator's intent from the four corners of the will and to carry out that intent if possible and not contrary to law or public policy.

4. Real property specifically devised is not chargeable with the payment of legacies unless the intention of the testator to so charge is expressly declared or arises by clear implication from the language of the will.

5. Although a will speaks as of the date of death, the language of the will must be construed as of the date of its execution and in light of the then existing circumstances.

6. Changes in circumstances after execution of a will may not be considered in ascertaining the testator's intent and it is not the function of the court to attempt to deduce an intention from speculation as to what would have been done had the changed circumstances been anticipated.

7. A debt, barred by the statute of limitations, owed by a person entitled to share in an estate may be set-off against that person's distributive share of the estate.

8. A debt owed an estate in which the debtor has successfully asserted the bar of the statute of limitations, while not collectible nor an asset of the estate, may be set-off against the debtor's distributive share and therefore affects the manner of distribution of the assets in the estate.

9. A specific legacy is a bequest of some definite thing capable of identification by description from other property of the testator.

10. A bequest of a sum of money, without designating the fund out of which it is to be paid, is a general legacy.

Gary C. Hagan, Hutchinson, argued the cause and Arthur H. Snyder, Hutchinson, was with him on the brief for appellant Clifford F. Fry.

Michael T. Mills, of Mills & Mills, McPherson, argued the cause and was on the brief for appellant Wilbur Dean Fry.

William L. Mitchell, of Mitchell & Henry, Hutchinson, argued the cause and was on the brief for appellee Gerald L. Fry.

William Y. Chalfant, of Branine, Chalfant, Hyter & Hill, Hutchinson, argued the cause and was on the brief for appellee LeRoy F. Fry.

Arthur C. Hodgson, of Hodgson & Kahler, Lyons, argued the cause and was on the brief for appellee Kenneth J. Nelson, Administrator C.T.A.

HOLMES, Justice:

This is an appeal by several parties from orders of the district court in the probate proceedings in a testate estate. The administrator c. t. a. filed a petition in the probate court for construction of the will of Maggie L. Wernet, deceased, for instructions as to the proper distribution of the assets in the estate and for other relief necessary to complete the proper administration of the estate.

Maggie L. Wernet died testate on April 11, 1976, a resident of Rice County. Her will, executed June 9, 1958, was admitted to probate May 27, 1976. The executrix named in the will declined to serve and Kenneth J. Nelson was appointed and qualified as administrator c. t. a. Following his appointment he filed a petition for construction of the will and other relief which was transferred to district court under K.S.A. 59-2402a, since repealed.

In view of the conflicting positions of the parties on appeal and the issues raised thereby, the last will and testament of Maggie L. Wernet will be set out in full. It reads:

"LAST WILL AND TESTAMENT OF MAGGIE L. WERNET

"I, MAGGIE L. WERNET, residing at Little River, Rice County, Kansas, being of lawful age, of sound and disposing mind and memory, and not under any restraint, do hereby make, publish, and declare this to be my Last Will and Testament, hereby revoking any and all former Wills by me at any time made.

"1. I direct that all my just debts, including funeral expenses and the cost of a suitable marker at my grave, be paid by my Executrix at her earliest convenience.

"2. I hereby authorize and empower my Executrix to sell my home described as Lot Nine (9) and the South Ten Feet (S 10') of Lot Ten (10) in Block Twenty (20) in the City of Little River, Rice County, Kansas, such sale to be for cash, but my Executrix shall not be required to obtain an order from the Probate or any other Court for the purpose of making this sale, and she shall sell for such sum and at such time and at public or private sale as in her sole discretion appears to be most advantageous to my Estate.

"3. I give, devise, and bequeath to my nephew, GERALD L. FRY, the Northwest Quarter (NW/4) of Section Twenty-seven (27), Township Twenty (20), Range Six (6) West in Rice County, Kansas, to be his in fee simple absolute forever.

"4. I give, devise, and bequeath to my nephew, LE ROY F. FRY, the Southwest Quarter (SW/4) of Section Twenty-seven (27), Township Twenty (20), Range Six (6) West in Rice County, Kansas, to be his in fee simple absolute forever.

"5. I give, devise and bequeath to my nephew, WAYNE A. FRY, the South half (S/2) of the Southeast Quarter (SE/4) of Section Two (2), Township Twenty (20), Range Six (6) West, except the West Twenty-five (W 25) acres thereof, in Rice County, Kansas, to be his in fee simple absolute forever.

"6. It is my desire that my five nephews, as follows, GERALD L. FRY, LE ROY F. FRY, WAYNE A. FRY, CLIFFORD F. FRY, AND WILBUR DEAN FRY, shall each receive equal portions of my Estate. Knowing that the respective values of the land above devised are not now equal and might, through oil discovery or other factors, by the time of my death, be materially different from the values at the time of making this Will, I provide in Paragraphs (A) and (B) hereafter for certain cash payments to equalize my remembrances to said nephews. As used in Paragraphs (A) and (B) hereafter, the word 'value' shall be absolutely defined as valuation made by the official appraisement made in my Estate and the respective values of the three pieces of real estate devised at Paragraphs 3, 4, and 5, above shall be conclusively determined by said appraisement for the purposes of said Paragraphs (A) and (B).

"(A) To CLIFFORD F. FRY and WILBUR DEAN FRY and each of them, I give and bequeath a sum of money equal to the most valuable land described in Paragraphs 3, 4, and 5, above, as determined by said appraisement, subject, however, insofar as WILBUR DEAN FRY is concerned, to the provisions of Paragraph 7, of this Will.

"(B) To each of said nephews who is devised land in Paragraphs 3, 4, and 5, which land is of less value than the most valuable land devised in said paragraphs, I give and bequeath a sum of money equal to the difference between the value of the most valuable of said lands less the value of the land that such nephew takes in the Paragraph 3, 4, or 5, applicable to him, subject, however, insofar as GERALD L. FRY is concerned, to the provisions of Paragraph 7, of this Will.

"7. At the time of making this Will, I am the owner of a mortgage in the face amount of approximately.$19,000 from WILBUR DEAN FRY and a mortgage in the approximate amount of $15,000 from GERALD L. FRY. Any interest due on either of said mortgages at the time of my death or that may be incurred after my death, is hereby forgiven. As to any amounts of principal that may be owing, however, on either of said mortgages, I specifically provide that such principal owing from said nephews or either of them, shall be deducted from what under the foregoing paragraphs of this Will, would be their respective interests in my Estate.

"8. I give and bequeath to the following named persons the following specified sums to be paid to them in cash should they survive me, and at such time as is convenient to my Executrix:

                HUGH BISHOP ........... $1,000.00
                GERALD HUNSINGER ...... $1,000.00
                LITTLE RIVER LIBRARY
                  ASSOCIATION ......... $2,000.00
                DOROTHY SITTS ......... $1,000.00
                ADAH FRY .............. $1,000.00
                

"9. All the rest, residue, and remainder of my Estate, real or personal, and wherever located, I give, devise and bequeath to my five (5) nephews above named, in equal undivided interests, and to be theirs in fee simple absolute forever.

"10. I nominate and appoint MARY HELEN MUNSELL, of Little River, Kansas, as sole Executrix of this, my Last Will and Testament, and direct that she be not required to give bond in a sum exceeding $10,000.00, and request that the Court grant Letters Testamentary to her upon her furnishing bond in a sum not to exceed $10,000.00.

"IN WITNESS WHEREOF, I have hereunto subscribed my name and caused this, my Last Will and Testament, consisting of two (2) pages, including the attestation clause, to be executed, declared, and published at Lyons, Kansas, this 9th day of June, 1958."

Signatures of the testatrix and witnesses and the attestation clause, all in proper order, are omitted.

The five nephews, Gerald L. Fry, LeRoy F. Fry, Wayne A. Fry, Clifford F. Fry and Wilbur Dean Fry, all survived their Aunt Maggie. The home of Mrs. Wernet described in paragraph 2 of her will was sold prior to death and the real properties described in paragraphs 3, 4 and 5 were...