Younger v. Younger's Estate, 44690
| Decision Date | 08 April 1967 |
| Docket Number | No. 44690,44690 |
| Citation | 198 Kan. 547,426 P.2d 67 |
| Parties | Marvin J. YOUNGER, Mildred Weyer, Paul Younger, Jr., Lorene Pfannenstiel, Carol Ann Snodgrass and Harold J. Younger, Appellants, v. The ESTATE of Paul J. YOUNGER, Deceased, and Tom Smyth, Executor of the Estate of Paul J. Younger, Deceased, Appellees. |
| Court | Kansas Supreme Court |
1. Where by the provisions of her will a wife grants her husband an extension on a note and mortgage payable to the wife, and the husband executes a valid written consent to the will, thereby relinquishing his right to inherit one-half of her estate upon her death, and the wife dies prior to the running of the five-year statute of limitations on the note and mortgage, it is held the extension of the note and mortgage in the wife's will became an irrevocable contract binding the parties and their privies, thereby extending the statute of limitations five years from the date upon which the note and mortgage became due and payable under the terms of the wife's will.
2. A will speaks from and takes effect on the date of the testator's death.
3. Where the consent of a spouse to the will of the other is freely, intelligently and understandingly made, the party consenting is bound by the consent, and its legal sufficiency is to be determined as of the time the document evidencing consent is made.
4. Where one spouse consents to the will of the other and takes any beneficial interest under such will, he shall not at the same time set up any right or claim of his own, even if legal and well founded, which would defeat or in any way prevent the full effect and operation of every part of the will to which the consent has been given. Such consent binds not only the party giving it but all whose rights must be claimed through him.
5. An instrument that is valid as a will may be in part contractual, and the contractual part may be enforced as a contract.
6. It is settled law that performance on any contract can be extended by mutual agreement of the parties, if there is consideration for such extension agreement.
J. H. Eschmann, Topeka, argued the cause, and L. M. Ascough and John A. Bausch, Topeka, were with him on the brief, for appellants. Tom Smyth, Ness City, argued the cause and was on the brief, for appellees.
This is an action to foreclose a note and mortgage executed by Paul J. Younger, deceased, to his wife, Helen Younger. The plaintiffs were bequeathed the note and mortgage by the will of their mother, Helen Younger, subject to certain benefits given to Paul J. Younger by the will during his life. The trial court held the action barred by the five-year statute of limitations, and appeal has been duly perfected.
The only question is whether the statute of limitations has run upon the note and mortgage upon which suit is brought.
The facts in this case as disclosed by the pleadings are not controverted, and the trial court determined the matter on a motion for summary judgment.
On the 25th day of February, 1958, Paul Younger gave his wife, Helen, his promissory note for $2,500 which by its written terms was due and payable in one year with interest. As security for the note he gave her a real estate mortgage on several lots in the city of Ransom, Ness County, Kansas, which was their homestead. The mortgage was duly recorded.
On the 19th day of December, 1962, Helen Younger executed her will. The only provision in her will material to this case reads as follows:
'IV
The foregoing was the only provision in the will of Helen Younger in favor of her husband, Paul, who on the 1st day of January, 1963, executed a written consent to the terms of the will of his wife, Helen, which was duly attested in the presence of two witnesses.
On the 11th day of June, 1963, Helen Younger died. Her will dated December 19, 1962, was admitted to probate in Ness County. Paul Younger, her surviving husband, did not contest the will or his consent to it.
On the 2nd day of February, 1965, Paul Younger died, and thereafter on the 16th day of April, 1965, Helen's estate was finally closed.
On the 16th day of April, 1965, when Helen Younger's estate was closed, the probate court assigned all of her property to her children, who are the plaintiffs herein. The journal entry of final settlement in which her property was assigned to the children recites:
'The Court further finds that, by the terms of her will, the testator devised and bequeathed all of her property to her children, Carol Ann Snodgrass, formerly Carol Ann Younger; Lorene Pfannenstiel; Paul Younger, Jr.; Mildred Weyer; Marvin J. Younger; and Harold J. Younger in equal shares, subject to certain provisions therein contained for her husband, Paul J. Younger during his lifetime; that the said Paul J. Younger died on February 2, 1965, and that assignment of said property should be made on final settlement to the children of the testator above named.
'The court further finds that the said Paul J. Younger, husband of the testator, consented in writing to the said will and thereby elected to accept the provisions thereof.' (Emphasis added.)
No appeal has ever been taken from the foregoing order of final settlement in the estate of Helen Younger, deceased.
At the time this action was commenced on the 27th day of December, 1965, Paul Younger's estate was being administered in the probate court of Ness County. The estate of Paul J. Younger, deceased, and Tom Smyth, executor of his estate, were made parties defendant.
To briefly summarize for purposes of reference, the essential dates in chronological order are as follows:
February 25, 1958 Note and mortgage executed
February 25, 1959 Due date of note and mortgage
December 19, 1962 Will of Helen executed
January 1, 1963 Paul consented to Helen's will
February 25, 1964 5 years after due date February 25, 1959
April 16, 1965 Helen's estate closed
December 27, 1965 Suit on note and mortgage filed
The trial court concluded the note and mortgage were barred by the five-year statute of limitations, the bar falling on the 25th day of February, 1964, pursuant to K.S.A. 60-511. Accordingly, it entered summary judgment in favor of the estate of Paul J. Younger, deceased, and his executor (defendants-appellees).
It is a fundamental rule of law that a will speaks from and takes effect on the date of the testator's death. (In re Estate of Ellertson, 157 Kan. 492, 142 P.2d 724; and In re Estate of Cline, 170 Kan. 496, 227 P.2d 157.)
The probate code places limitations upon the testamentary power of persons desiring to dispose of their property after death. In this connection K.S.A. 59-602 provides that either spouse may will away from the other half of his property, subject to the rights of homestead and allowances secured by statute. It further provides that, 'Neither spouse shall will away from the other more than half of his property, subject to such rights and allowances, unless the other shall consent thereto in writing executed in the presence of two or more competent witnesses, or shall elect to take under the testator's will as provided by law.'
Here we are not concerned with an election to take under the terms of Helen's will, but a written consent executed by Paul Younger in the presence of two competent witnesses, as provided by the foregoing section of the statute. This consent was executed on the 1st day of January, 1963, shortly after the execution of Helen's will on the 19th day of December, 1962, and long prior to the death of either Helen or Paul. The written consent of Paul reads:
'The Undersigned, PAUL J. YOUNGER, husband of HELEN MARY YOUNGER, having read and had explained to him the foregoing Last Will and Testament of HELEN MARY YOUNGER, and being well informed of the contents thereof and the provisions made therein for his benefit, expressly consents to all of the provisions thereof, and accepts the same in lieu of the rights secured to him by statute.' (Emphasis added.)
The foregoing consent was duly signed and dated and followed by an attestation clause bearing the signatures of two attesting witnesses.
When a will is admitted to probate, K.S.A. 59-2233 directs the court to forthwith transmit to the surviving spouse a certified copy thereof, together with a copy of K.S.A. 59-603 and 59-2233 and certify to such transmittal. This section of the statute further provides, 'If such spouse has consented to the will, as provided by law, such consent shall control.' (Emphasis added.)
Where the consent of a spouse to the will of the other is freely, intelligently and understandingly made, the party consenting is bound by the consent and its legal sufficiency is to be determined as of the time the document evidencing consent was made. (In re Estate of Ellis, 168 Kan. 11, 210 P.2d 417; and Burns v. Spiker, 109...
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