Smyth v. Thomas

424 P.2d 498, 198 Kan. 250, 1967 Kan. LEXIS 282

• Court: Supreme Court of Kansas
• Decided: March 4, 1967
• Docket: 44,437
• Status: Published

Opinions

The opinion o£ the court was delivered by

Price, C. J.:

This is an action to quiet the title to real estate in the city of Wichita.

The question in the case concerns the construction of certain language contained in item X of a will.

Allegations of the pleadings need not be detailed. The contentions of the parties will be evident as the facts are developed.

On April 5, 1932, Charles H. Smyth, a resident of Wichita, executed his last will and testament. Mr. J. Wirth Sargent, an attorney of Wichita, was the scrivener. The testator died on November 5, 1933, and his will was admitted to probate. He was survived by his wife Anna, a daughter Maebell Smyth Hyde, a daughter Constance Jane Harrington Winters, and a son Charles F. Smyth, hereafter referred to as Charles.

After providing for a number of bequests, the will bequeathed and devised to the wife, Anna, a life estate in all of the remaining property.

In item VIII of the will, after the death of Anna, a life estate in certain described real property was devised to the daughter Mae-bell, with remainder over in fee simple to such of the children of Maebell as shall survive her.

In item IX of the will, after the death of Anna, a life estate in certain described real property was devised to the daughter Constance, with remainder over in fee simple to such of the children of Constance as shall survive her.

The property devised in the foregoing portions of the will is not involved in this action.

Item X of the will — the provisions of which are the basis of this action — reads:

“X

“After the death of my beloved wife, or at my death, in the event my wife predeceases me, I devise a life estate in and to the following described real estate, situated in Sedgwick County, Kansas, to-wit:

(Description omitted.)

to my beloved son, Charles F. Smyth, he to have the rents, issues and profits therefrom during his life time; paying all taxes, insurance and other charges on said buildings; with remainder over in fee simple to the lawful issue of said Charles F. Smyth born in wedlock, who may survive him, provided that in the event said Charles F. Smyth shall die without such issue, then the remainder in fee simple to the children surviving my daughters, Constance Jane Harrington Winters and Mae bell Smyth Hyde, per capita, share and share alike, and subject to the payment to Margaret Smyth, the present wife of Charles F. Smyth, if she survive him, of the sum of fifty thousand dollars ($50,000.00), said sum to be raised by placing a mortgage upon the above described property by the then owners thereof, if necessary, provided further that if Margaret Smyth shall predecease my son, Charles F. Smyth, then said property shall be charged with a payment of $25,000.00 to Barbara Smyth, daughter of Margaret Smyth, if said Barbara Smyth survives my son, said son1' to be raised as aforesaid.” (Emphasis supplied.) • . ■

Under item XIII of the will, the wife Anna is the residuary legatee and devisee of the estate. She was named executrix, and she executed her written consent to the will. The final'paragraph of the will provides:

... It is further my- will that J. Wirth Sargent be. permitted - to testify concerning the provisions of this will, and that his interpretation shall be prima facie evidence thereof.”

Mr. Sargent was a subscribing witness to the will.

As stated, the testator was survived by. his wife:. Anna and his three children, Maebell, Constance and Charles. •

On September 29, 1937, Anna, as residuary devisee under the will — and reserving to herself a life estate; including the rents and profits — executed to Charles a quit-claim - deed, to the property described in item X of the will, above, in the following language:

“. . . he, the said Charles F. Smyth, to have the rents, issues and profits therefrom during his lifetime,, paying all taxes, 'insurance and other charges on said buildings; with remainder over in fee simple to the lawful issue of said Charles F. Smyth, who may survive him; provided, that in the event said Charles F. Smyth shall die without sucli issue, then the remainder in fee simple to the children of my daughters, Constance fane Harrington Winters and. Mae Bell Smyth Hyde, who shall survive Charles. F. Smyth, per capita, share and share alike; and subject to the payment of Margaret Smyth, wife of Charles F: Smyth, if she survive him, of the sum ot $50,000.00, said sum to be raised by placing a mortgage upon the above described property by the then owners thereof, is necessary, provided, further, that if Margaret Smyth shall predecease Charles F. Smyth then said property shall be charged with the payment of $25,000.00 to Barbara Smyth, daughter of Margaret Smyth, if said Barbara Smyth survives my son, Charles F. Smyth, said sum to be raised as aforesaid.

“The consideration of this deed is love and affection and to perfect title by providing that the remainder in fee simple shall go to the children of Constance fane Harrington Winters and Mae BeU Smyth Hyde, per capita, share and share alike, who shall survive said Charles F. Smyth, the will of Charles H. Smyth not being clear as to the contingent remainder.” (Emphasis supplied.)

This deed was prepared by Mr. Sargent, the scrivener of the will, and bears his signature and notary seal on the acknowledgment. It was filed for record on December 8, 1937.

At the time the will was executed and at testator’s death — Margaret Smyth (mentioned in item X of the will and in the 1937 deed from Anna to Charles) was the wife of Charles. They were divorced in April, 1945. She is still living.

'Testator’s daughter, Constance, died on June 27, 1949. She was survived by two children, a daughter, Constance Winters Schubmehl Thomas, and a son, Charles Smyth Harrington, a/k/a' Jerome Winters, a/k/a' Jerome Harrington. These two children are still living and are of lawful age.

Testator’s widow, Anna,, died on October. 7, 1950.

Following the 1945 divorce of Charles and Margaret — Charles, on a date not shown — was married to Betty, the plaintiff in this action.

On September 21, 1963, Charles, joined by his wife Betty, executed a general warranty deed conveying to Betty the real property described in item X of the will and in the 1937 deed from his mother, Anna, to him. It was filed for record on October 16, 1963.

Charles died on February 5, 1964. He was survived by his wife Betty and two adopted daughters, Victoria Sue Smyth and Elizabeth Eve Smyth, age 16 and 7.

Testator’s daughter, Maebell Smyth Hyde, is still living. She has had four children, two of whom predeceased Charles. The other two, Ann D’Arcy Hyde Cory Eustis and Theodore Alvan Hyde are still living and are of lawful age.-

It will be seen, therefore, that when Charles died in February, 1964, he was survived by his wife Betty and two adopted minor children. He also was survived by Margaret, his former wife, and' by two children of his sister Maebell, and by two children of his prior deceased sister Constance. ■

It is the emphasized portion of item X of the will, above, which brought about this dispute.

On the one hand it is contended that should Charles not bé survided by lawful issue born in wedlock, the property passes to the children of Maebell and Constance, who survive them — and, since Maebell is still living — the “infirmities” in the provision in question are obvious, and that Betty takes under the 1963 deed from Charles (and herself) to her. The two adopted children of Charles claim an interest either under the language of item X or under the law of intestate succession.

On the other hand, the four children of Maebell and Constance, who survived Charles, contend the obvious intent of the testator was that should Charles not be survived by lawful issue born in wedlock, the property passes to them upon his death, subject to the $50,000 payment to Margaret.

Margaret, in any event, claims a charge and lien on the property to the extent of $50,000.

Hence this law suit — and the question is — who, following the death of Charles, is the owner of the property?

At the time of trial Mr. Sargent was physically disabled and could not testify. He died a few months later.

All facts as above related having been stipulated — the parties brought the matter to a head by motions for summary judgment.

In rendering judgment the trial court found and concluded—

1. The word “issue” as used in the will of the testator and in the quit claim deed of September 29, 1937, from Anna to Charles, does not include the adopted children of Charles.

2. The will did not create a fee tail estate in Charles.

3. Item X of the will violated the rule against perpetuities.

4. The fee simple title in and to the real property in question passed to Anna, the widow of testator, as residuary devisee and legatee under the will.

5. The 1937 deed from Anna to Charles conveyed a life estate in the property to Charles with the remainder vested in the four children of Maebell and Constance.

6. Upon the death of Charles the fee simple title in and to the property passed to and vested in the then living four children of Maebell and Constance, per capita, share and share alike.

7. The deed of September 21, 1963, from Charles and his wife Betty, to Betty, conveyed to Betty only an estate in and to the property for the life of Charles.

The judgment further recites that the motion of Margaret in which she sought judgment for a charge and lien on the property to the extent of $50,000, was sustained.

In other words, the substance of the trial court’s judgment was that upon the death of Charles the fee simple title passed to the four children of Maebell and Constance who survived Charles, subject to the claim and lien in favor of Margaret for $50,000.

Betty and the two adopted children of Charles have appealed.

The four children of Maebell and Constance — appellees here— although satisfied with the ultimate judgment rendered in their favor — have cross-appealed from the finding and conclusion that item X of the will violates the rule against perpetuities, and contend that the judgment can properly be sustained not only on the theory followed by the trial court, but also on the ground of effectuating the testators obvious intent as gleaned from the will itself — unvitiated by the rule against perpetuities.

For reasons hereafter stated, we believe that item X of the will is to be construed as meaning that following the death of Anna — the first life tenant — Charles was to have a life estate in the property in question with remainder over in fee simple to his lawful issue bom in wedlock who survived him, but if he died without leaving such issue, then the remainder in fee simple should pass to the children of Maebell and Constance who survived him.

It always has been the rule that where some uncertainty or ambiguity appears in a will the law favors a reasonable construction which will uphold the will rather than one which defeats it (In re Estate of Koellen, 162 Kan. 395, 176 P. 2d 544). In construing a will a court should place itself as nearly as possible in the situation of the testator when he made the will, and from a consideration of that situation, and from the language used in every part of the will, determine as best it can the purposes of the testator and the intentions he endeavored to convey by the language used (In re Estate of Thompson, 161 Kan. 641, 171 P. 2d 294). Courts favor reasonable and consistent interpretations, rather than literal or critical interpretations which result in ascribing unnatural and unreasonable intentions to a testator (In re Estate of Works, 168 Kan. 539, 213 P. 2d 998). Provisions apparently in conflict should be reconciled if reasonably possible, provided an intent can be given to the various provisions which appears to be consistent with the general intent and purpose of the testator as gathered from the entire instrument (Regnier v. Regnier, 122 Kan. 59, 62, 251 Pac. 392; In re Estate of Miller, 186 Kan. 87, 348 P. 2d 1033; Baldwin v. Hambleton, 196 Kan. 353, 411 P. 2d 626). Doubtful expressions are not to override the obvious intent which is evident from a survey of the entire will (In re Estate of Roberts, 190 Kan. 248, 373 P. 2d 165). The rule also is that an obviously omitted word or words may be supplied and that employed words may be transposed in a will if to do so eliminates uncertainty and renders the various provisions reasonably consistent with each other and enables a court to effectuate a testator’s realistic intent (Regnier v. Regnier, above; In re Estate of Miller, above).

The overall intent of the testator is clear. Aside from some specific bequests, he gave his wife Anna a life estate in all property After her death each of the daughters was given a life estate in certain property with the remainder over in- fee simple to their respective children who should survive them. In item X, after the death of Anna, Charles was given a life estate in the property in question with remainder over in fee simple to his lawful issue born in wedlock who survived him. Reading the will in its entirety it is clear that testator’s plan and scheme was that as to the devises to his three children the remainder was to vest in each instance upon the death of the second life tenant, and it may not be said he intended that in the event Charles was not survived by such issue the title to the property in question be “suspended” until the death of both Maebell and Constance. And neither may it be said that testator intended that the rights of Margaret or Barbara— as the case may be — be held up indefinitely. It is clear that in such event then the property was to pass in fee simple to his sisters’ children who survived him. Such construction involves only substitution of the. word “of” for the word “surviving” after the word “children,” and inserting the obviously misplaced word “surviving” after the names of the daughters, and then inserting the omitted word “Charles” after the transposed word “surviving.” The particular provision in question thus would read:

“then the remainder in fee simple to the children of my daughters, Constance lane Harrington Winters and Mae bell Smyth Hyde, surviving Charles . . .”

In fact, this' construction of item X is borne out by the language of the 1937 deed from Anna to Charles — both of which instruments were prepared by Mr. Sargent. Thus, as early as 1937 the testator’s true intent was interpreted and publically declared by Anna, Charles and Mr. Sargent to be as we have above concluded. In Giese v. Smith, 195 Kan. 607, 408 P. 2d 687, it was said:

“There is yet another rather convincing circumstance which tends to indicate the intention of the testator. It appears that the immediate children of the testator had for years placed their interpretation upon the will . . . We must assume that the children of Christian P. Smith knew more about the conditions and circumstances under which the will was drawn, and the intention of the testator, than did a grandson who attempts to place his interpretation upon the will some 55 years after the death of the testator.” (p. 612)

See also In re Estate of Dobrovolny, 182 Kan. 138, 142, 318 P. 2d 1053.

The contentions of Betty and the two adopted children of Charles are of course premised upon the proposition that item X of the will is not to be construed as we have concluded. Discussion of such matters therefore would be academic and would serve only to divert attention from what we consider to be the decisive issue in the case. We, however, mention briefly two points.

We are not dealing here with the rights of adopted children under the law of intestate succession (K. S. A. 59-501 and 2103), but rather with the provisions of a will which make it clear the testator’s intentions were that only grandchildren of the blood were to take the property in question after the two life estates. The words “lawful issue . . . born in wedlock” found in item X of the will and “lawful issue” used in the 1937 deed from Anna to Charles, do not include the adopted children of Charles (Blaker v. Blaker, 131 Kan. 833, 836, 837, 293 Pac. 517; Woodley v. Howse, 133 Kan. 639, 641, 642, 3 P. 2d 475).

Our construction of item X of the will disposes of the question whether it violates the rule against perpetuities. The wife Anna received a life estate — followed by a life estate in Charles. If there were no lawful issue born in wedlock to him, then the children of the two named daughters, Maebell and Constance, were to receive the fee upon the death of Charles. Anna, Charles and the daughters all were “lives in being” at the time the will was executed and at testator’s death. There is no room for application of the rule (Goetz v. Goetz, 174 Kan. 30, 38, 254 P. 2d 822).

Strictly speaking, therefore, that portion of the trial court’s judgment holding that item X violated the rule against perpetuities is reversed. A judgment, however, correct in result, is not to be set aside on the ground it was arrived at through the process of erroneous reasoning (Kirkpatrick v. Ault, 174 Kan. 701, 706, 258 P. 2d 262).

In view of our holding and construction of item X of the will, other points argued in the briefs are not in issue and require no discussion. We agree with the ultimate judgment of the trial court that upon the death of Charles the fee simple title to the subject property passed to the then living four children of Maebell and Constance, per capita, share and share alike — subject to the claim and lien thereon in favor of Margaret in the amount of $50,000.

The judgment is affirmed.