Zimmerman's Estate, In re

• Court: Kansas Supreme Court
• Writing for the Court: FONTRON
• Citation: Zimmerman's Estate, In re, 485 P.2d 215, 207 Kan. 354 (Kan. 1971)
• Decision Date: 15 May 1971
• Docket Number: No. 45991,45991
• Parties: In the Matter of the STATE of John Elza ZIMMERMAN, Deceased. Bernice E. MINICH, Appellant, v. David R. KUNS, Executor, Appellee.

Page 215

485 P.2d 215

207 Kan. 354

In the Matter of the STATE of John Elza ZIMMERMAN, Deceased Bernice E. MINICH, Appellant, v. David R. KUNS, Executor, Appellee.

No. 45991.

Supreme Court of Kansas.

May 15, 1971.

Syllabus by the Court

1. Pursuant to the provisions of K.S.A. 59-616, no will can be effectual to pass title unless it has been admitted to probate.

2. Where a testator has been dead for more than five years, no action to probate the will may be maintained under K.S.A. 59-618 by any devisee or legatee named in the will.

3. As a general rule a will speaks from the date of the testator's death in the absence of a clear intention to the contrary.

4. A constructive trust results in those cases where by means of fraud, chicanery, unconscionable conduct or any form of wrongdoing, a person obtains title to property which in equity and good conscience he ought not to possess or what justly belongs to another.

5. In general, a devise or legacy left to a beneficiary in his individual capacity, and not jointly with others, will lapse upon his death prior to that of the testator, unless the testator has expressed a contrary intention or unless a controlling statute otherwise dictates.

Forrest E. Short, of Short & Short, Fort Scott, argued the cause, and Joel B. Short, Fort Scott, of the same firm, was with him on the brief for appellant.

Douglas Hudson, of Hudson & Hudson, Fort Scott, argued the cause, and Douglas G. Hudson and David Mullies, Fort Scott, of the same firm, were with him on the brief for appellee.

FONTRON, Justice:

This appeal stems from a summary judgment disallowing a petition filed by Bernice E. Minich in the Estate of John Elza Zimmerman, Deceased.

The case had its origins in the spring of 1960. On April 11 of that year, John Elza Zimmerman and Abbie Zimmerman (hereafter referred to respectively as John and Abbie) executed there joint will, leaving all the property belonging to either of them to the survivor for the use of the survivor during his or her lifetime, with full power and right to convey and transfer the property without court intervention, and directing that at the death of the survivor all the property not disposed of by the survivor be distributed as follows: (1) A certain quarter section of land to Charles R. Minich, a nephew; (2) the residue and remainder of their property, real and personal, in equal shares to thirteen (13) specified relatives, Charles R. Minich being among those named; and (3) the lawful issue of any deceased heir to take their parents' share by representation, or if none, the share to be divided pro rata among the other surviving heirs.

Abbie died on June 7, 1960. The joint will was not offered for probate at the time of Abbie's death nor was it ever produced for probate until after John's death, more than seven years later.

On August 18, 1961, John executed a codicil to the joint will in which he left various specific items of personal property, largely antiques, to Charles and/or Bernice E. Minich and two other legatees. Except for these few bequests, John expressly ratified the will in every respect.

John died January 9, 1968, and the joint will was offered and admitted to probate as his last will and testament on January 22, 1968, the first notice to creditors being thereafter published January 25, 1968. In the meantime, that is prior to John's death, Charles R. Minich, to whom we will largely refer as Charles, Departed this life at his home in Galesburg, Illinois, on April 25, 1966, being survived by his widow Bernice E. Minich, hereafter called Bernice or petitioner, as his sole and only heir.

On the twelfth day of November, 1968, some eighteen (18) days after the nine-month nonclaim statute had run, Bernice filed her petition in probate court alleging that pursuant to the terms and conditions of John's and Abbie's joint will, title to the farm land vested in Charles upon Abbie's death, subject only to John's life estate with power of conveyance, and that all rest and residue of their properties, both real and personal, descended to the thirteen named legatees, also subject to John's life estate with power to convey, and that a one-thirteenth interest in the residue became vested in Charles at Abbie's death. Bernice alleged John had not conveyed the farm and she concluded her petition by praying for an order decreeing that the bequests to Charles had not lapsed, and that upon the death of Abbie there had vested in Charles a remainder interest in fee in and to the quarter section of land and a one-thirteenth interest in the remaining property.

The case was transferred to district court where the executor filed a motion for summary judgment while the guardian ad litem filed an answer on behalf of certain minors. The trial court treated the latter's answer as being, in effect, a motion for summary judgment and thereupon entered summary judgment disallowing the petition filed by Bernice.

In a comprehensive memorandum the trial court held that the joint will could not be operative as Abbie's will, since it was not probated within five years of her death (see K.S.A. 59-618); that the devise of the farm and the residuary bequests to Charles had lapsed upon his death prior to the death of John; that no claim for damages against John's estate had been filed within the time allowed by the nonclaim statute, K.S.A. 59-2239; and that no remainder interests in the Zimmerman properties became vested in Charles upon Abbie's death. The court also held that, assuming the joint will was contractual, and that Bernice's petition constituted a claim under its provisions against John's estate, the same was filed too late to comply with the nonclaim statute.

Bernice has appealed. As appellant, she has set forth seven points of error in her brief. However, the real thrust of her position is that upon Abbie's death, Charles became the owner of a vested remainder interest in the quarter section of farm land, and of a one-thirteenth vested interest in the residue and remainder of Abbie's estate, subject only to John's life estate with the power to convey and transfer the property.

This position was made quite clear on oral argument when counsel for Bernice advised this court that his client was not claiming any interest under the joint...