Works' Estate, In re

• Court: Kansas Supreme Court
• Writing for the Court: WEDELL
• Citation: Works' Estate, In re, 213 P.2d 998, 168 Kan. 539 (Kan. 1950)
• Decision Date: 28 January 1950
• Docket Number: No. 37784,37784
• Parties: In re WORKS' ESTATE. WORKS v. WORKS.

Page 998

213 P.2d 998

168 Kan. 539

In re WORKS' ESTATE WORKS v. WORKS.

No. 37784

Supreme Court of Kansas.

Jan. 28, 1950.

Syllabus by the Court.

1. A rule to which all others must yield is that a testator's intention will prevail if not contrary to settled rules of positive law or in violation of public policy.

2. A will speaks from and takes effect on the testator's death. It is construed as operating according to conditions then exiting unless it plainly shows a contrary intention.

3. The law favors vested rather than contingent remainders. If there is doubt whether the testator intended a remainder should vest at his death or at the termination of a life estate the doubt will be resolved in favor of the earlier vesting.

4. In order to create a contingent remainder the intention so to do must be expressed in words so plain that no room for judicial construction remains.

5. Although the word 'children' is not ordinarily construed to include grandchildren, it is properly construed to include grandchildren when the context, or the surrounding facts and circumstances, in case of ambiguity, make it clear that the grantor so intended.

6. If there appears to be a doubt or uncertainty as to the grantor's intention in using the word 'children' there is a reasonable presumption against disinheritance of a grandchild whose parent is dead.

7. A will which devised a life estate in certain real property to one person and the remainder to his legitimate children examined, construed and held: The remainder vested at the testator's death in both children of the life tenant who were living at the testator's death notwithstanding the fact one of such children predeceased the life tenant.

Frederick G. Apt and Mitchell H. Bushey, Iola, argued the case, and Howard M. Immel, Iola, on the briefs for appellants.

John O. Foust, Iola, argued the cause, and Kenneth H. Foust, Iola, on the briefs for appellee.

WEDELL, Justice.

This action involves the interpretation of a will. The facts were stipulated by the parties. The testator, Robert M. Works, had five living children, three boys and two girls, to each of whom he devised real estate in separate paragraphs of his will. The title to only one tract of real estate devised to his son, Charges W. Works, is here involved. After devising specific tracts of land to his five children the testator included the following paragraph in the will: 'Seventh:--The above bequests and gifts of my real estate are made to my children heretofore named upon condition that they and each of them shall hold the same during their lifetime, and at the death of any one of them the real estate herein bequeathed and devised shall descend to their legitimate children. And in case any one or more of the children above named, should die without legitimate issue, then the share above given and devised to such childless levisee shall descend to and become the property of their brothers and sisters, children of mine who shall survive, share and share alike.'

The controversy involves paragraph seven. The testator died in April, 1911. All of his children were then living, at the time of the testator's death his son, Charles, had two legitimate living children. They were Warren W. Works and Clark O. Works. The testator's son, Charles, died in October, 1946. Clark, however, had predeceased his father, Charles, in 1943. Clark's only heirs at law were Leota M. Works, his widow, two sons, Charles and Paul, and a daughter, Mary Ella. Upon the death of the testator, Charles W. Works went into possession of the land devised to him for life. In 1948 Leota M. Works, the widow of Clark Works, conveyed her interest, if any, to the land in question to her children, Charles, Paul and Mary Ella.

The controversy here is whether Warren W. Works, the one living son of Charles, received the entire remainder interest in the land or whether Warren took only one half of the remainder and the three children of Clark took the other half.

The trial court held the entire remainder passed to Warren, on the death of his father, Charles. From that judgment the three children and the widow of Clark appeal.

The merit of the appeal depends on the proper interpretation of paragraph seven of the will and in particular on the first sentence thereof. The parties refer to various rules of judicial construction. They endeavor to apply the rules they cite in a manner designed to support the desired result. If the intention of the testator is clear there is, of course, no occasion for employing rules of judicial construction. In re Estate of Ellertson, 157 Kan. 492, 142 P.2d 724; Shannep v. Strong, 160 Kan. 206, 213, 160 P.2d 683. The rule to which all others must yield is the rule that the intention of the testator must prevail if it reasonably appears, Selzer v. Selzer, 146 Kan. 273, 69 P.2d 708, 116 A.L.R. 1, unless it is contrary to settled rules of positive law or in violation of public policy. Calkin v. Wallace, 160 Kan. 760, 165 P.2d 224.

We, therefore, first inquire what was the testator's intention? As an aid to such inquiry we apply the often repeated general guides that a will speaks from and takes effect on the testator's death and is to be construed as operating according to conditions then existing unless it plainly shows a contrary intention. In re Estate of Ellertson, supra. Also, in order to ascertain the testator's intention courts place themselves as nearly as possible in the position of the testator at the time he executed the will. In re Estate of Chevalier, 167 Kan. 67, 204 P.2d 748.

Applying these elementary but fundamental guides for ascertaining the testator's intention we find that at the time of executing the will in 1906 the testator had five children. He devised separate tracts of land to each of them for life and provided that on the death of any of them the land devised to such person should 'descend to their legitimate children.' At the testator's death in 1911 his son, Charles, had two living children, Warren and Clark. Charles had no other children thereafter.

It is conceded that at the testator's death a life estate vested in the land devised to Charles. The question is, did a remainder interest vest in each of the two children of Charles at the time of the testator's death? Appellants contend it did. Appellee claims it did not. If appellee is right Warren took the entire remainder interest in the land devised to his father, Charles, for life. If appellants are right the three of them share equally in the remainder with their Uncle Warren.

Appellee asserts a remainder interest did not vest in Clark on the testator's death but was contingent upon Clark's survival until the members of the class--children of Charles--were determined at the end of Charles' life estate. Appellants insist in order to adopt appellee's contention that a contingent remainder was created the will must be rewritten by adding at the end of the first sentence of paragraph seven a condition not contained therein, to wit: '* * * provided they survive the life tenant.' They contend a contingent remainder cannot be so created but must appear from language the testator himself expressly employed or from which an intention to create a contingent remainder is clearly implied.

There long has been a prevalent disposition by all courts, and this court is committed to the rule, of favoring vested rather than contingent remainders....