Zabel v. Stewart

• Decision Date: 25 January 1941
• Docket Number: 35058.
• Citation: 153 Kan. 272,109 P.2d 177
• Parties: ZABEL et al. v. STEWART et al. In re MITCHELL'S ESTATES.
• Court: Kansas Supreme Court

109 P.2d 177

153 Kan. 272

ZABEL et al. v. STEWART et al.

In re MITCHELL'S ESTATES.

No. 35058.

Supreme Court of Kansas

January 25, 1941

Rehearing Denied March 14, 1941.

Syllabus by the Court.

In construing a will, the intention of the testator is to be gathered from the instrument as a whole, and the intention must prevail if it is consistent with the rules of law.

Generally a will should be upheld where possible and should be construed to avoid intestacy, if possible.

Joint wills are valid as testamentary dispositions.

A joint will may be probated as the will of the maker first to die and unless subsequently revoked, may again be probated as the will of the survivor.

Where first clause of joint will of husband and wife provided that at death of one to die first all property should descend to survivor, who had right to dispose of all property and second clause provided that they bequeathed to certain church all that part of property "that we may own at the death of the survivor, by said survivor and undisposed of" for purpose of building a church and furnishing the church, will of the first to die was that survivor was to have all the property absolutely with full power to dispose and will of survivor who died without having made new will was that all property not otherwise disposed of was to go to the church for purposes expressed.

Generally where a bequest is made to a religious or charitable corporation for the accomplishment of a purpose for which it was formed, the gift is absolute and not in trust and is not to be judged by any of the well-known rules pertaining to law of trusts as applied to individuals.

Where joint will of husband and wife provided that at death of the first to die all property should descend to survivor, who should have right to dispose of all of property, and second clause provided "we hereby Will bequeath and devise all that part or portion of the property, that we may own at the death of the survivor, by said survivor and undisposed of at the death of the said survivor" for purpose of building a church building and for purpose of furnishing the church, the wife, who died about an hour after the death of her husband, bequeathed her entire estate to the church, the gift being absolute and not in trust. Gen.St.1935, 22-258.

1. The fundamental rule for construing a will is that the intention of the testator is to be gathered from the instrument as a whole, and that intention must prevail if it is consistent with the rules of law.

2. Joint wills are valid as testamentary dispositions. Such a will may be admitted to probate as the will of the maker first to die, and unless subsequently revoked, may again be admitted to probate as the will of the survivor.

3. The general rule is that where a bequest or devise is made to a religious or charitable corporation for the accomplishment of a purpose for which it was formed, the gift is absolute and not in trust and is not to be judged by any of the well-known rules pertaining to the law of trusts as applied to individuals.

Appeal from District Court, Pottawatomie County; Lloyde Morris, Judge.

Action by Charles A. Zabel and others against Glenn A. Stewart and others to have a portion of the wills of Matilda A. Mitchell and Henry M. Mitchell, deceased, declared to be null and void, consolidated with appeals of Charles A. Zabel and others in the matter of the estates of Matilda A. Mitchell and Henry M. Mitchell, deceased. From an adverse judgment, Charles A. Zabel and others appeal, and the defendants cross-appeal.

Reversed and remanded, with instructions.

J. E. Addington and Howard A. Jones, both of Topeka, for appellants.

E. R. Sloan, Glenn Hamilton, and F. A. Sloan, all of Tokeka, and D. C. Hill, of Wamego, for appellees.

THIELE Justice.

This appeal involves the validity of two wills and arises out of the following:

Under date of November 1, 1926, Henry M. Mitchell and Matilda A. Mitchell, residents of Pottawatomie county, executed their joint will, which read as follows:

"Last Will and testament of Henry M. Mitchell and Matilda A. Mitchell.

"We, Henry M. Mitchell, aged fifty-nine years and Matilda A. Mitchell, aged fifty-seven years, husband and wife, and both and each being of sound mind and memory, and both and each residents of the said county of Pottawatomie and State of Kansas, do hereby make our joint Will, that is to say:

"First: That at the death of one of us who shall die first, all the property both real and personal shall descend to the survivor, who shall have the right to dispose of all of said property, in such manner, either by deed or will or gift, as said survivor may elect and desire.

"Second: To the Methodist Episcopal Church at Wamego, Kansas, we hereby Will bequeath and devise all that part or portion of the property, that we may own at the death of the survivor, by said survivor and undisposed of at the death of said survivor, either by deed, gift, or will, for the purpose of building a church building for said Methodist Episcopal Church at Wamego, Kansas, and for the purpose of furnishing said church in keeping and in harmony with its architecture and finish.

"Third: It is expressly intended by this will, that the surviving husband or wife shall have the full use, control and ownership of said property willed to them herein, and the right to sell the same, give it away, or will it as said survivor may see fit, and the said Methodist Episcopal Church at Wamego, Kansas, is to have no right title or claim to the same until after the death of the survivor prior to his or her death.

"Fourth: It is also expressly to be understood, that the makers of this will, are also to have the right to change, alter or annul the same at any time, they may desire, and that it is not the intention of the makers of this will to give to said church any vested right in and to any of their property in any other manner than as indicated and stated herein, for a church building and furnishing of the church.

"Fifth: If there is no monument to the graves of the said parties, the monument will have to be put up first, the balance to go to the building of the church. The Methodist Church people are to see after the graves.

"Sixth: It is also expressly to be understood that it is the wish and the desire of the makers hereof, that their relatives are to have no part or parcel of their said estate and this is to include the relatives of one as much as the other.

"In Witness Whereof: We, Henry M. Mitchell and Matilda A. Mitchell have this our last will and testament consisting of two pages, these our signatures being on this second page thereof, subscribed our names at Wamego, Kansas, this first day of November, 1926.

"Henry M. Mitchell

"(Duly witnessed.) Matilda A. Mitchell"

On July 18, 1939, Henry M. Mitchell died and about an hour later Matilda A. Mitchell died. Appropriate proceedings were instituted in the two estates to have the wills admitted to probate, and objections were filed by persons who would have been heirs of Matilda A. Mitchell had she died intestate. These objections were overruled and the will was admitted in each estate, and Floyd Funnell was appointed as administrator with the will annexed of each estate. The objectors perfected appeals to the district court in each estate.

Shortly thereafter the same persons filed a separate action in the district court and under appropriate allegations sought to have item two of the wills declared to be null and void, to have the devise to the church declared void, to have the provisions of the will alleged to create a trust for the benefit of the church declared void, and for a declaration and judgment that Matilda A. Mitchell died intestate and that the plaintiffs be declared to be her heirs at law. By agreement the two appeals and the original action were consolidated. The administrator with the will annexed of the two estates and the church filed separate but substantially identical answers, admitting the deaths of the testators and that their wills had been admitted to probate, and alleging that Matilda A. Mitchell had inherited property from her father and the estate she left was largely the accumulation of such inheritance; that Henry M. Mitchell left an estate consisting of personal property of the value of about $8,000, and that Matilda A. Mitchell left, without considering her husband's estate, real and personal property worth about $52,000; that all of said property had been well handled by the decedents and their last will was written by and in the handwriting of Matilda A. Mitchell. Other allegations of the answers need not be noted.

Plaintiffs filed a motion for trial upon issues of law in advance of the trial, and upon submission the following facts were agreed to: That Henry M. Mitchell and Matilda A. Mitchell were husband and wife and died without issue, and that each owned, in his or her own right, property of substantial value; that Henry M. Mitchell died prior to Matilda A. Mitchell, their deaths occurring on the same day; that the appellants and plaintiffs were heirs at law of Matilda A. Mitchell; that the named church is a religious corporation under the laws of Kansas, and that Floyd Funnell is administrator with the will annexed of each estate.

Plaintiffs requested conclusions of law consistent with their contentions. Both sides presented briefs and after consideration the trial court made and filed its conclusions which were in substance that the will created in the survivor of the testators a life estate with full power of disposal the church taking a vested remainder, subject to its being divested by disposal of the estate by the survivor; that the devise to the church was not a general religious trust but...