*1 45,257 No. W. Deceased. Johnson, Matter the Estate of Charles Johnson; W. Kephart, Estate Executor of the (Vernon Opal Kreutzer, Meisenheimer, Leona and Lorena Johnston Appellant.) Johnson, Hazel M. and Carl Johnson, Appellees,
(452 286) P. 2d *2 Opinion filed March 1969. Mitchell, Dodge City, argued cause, R. R. Moffat, of and A. L. of Kinsley, Patton, Dodge Smith L. City, and Don C. and David of were with appellant. him on the brief for the argued cause, Murray, Pratt, Beezley, Bill and William N. Kinsley, Hampton Hampton, Jr., Pratt, B. V. and Bill were with him on the appellees. for brief the court opinion was delivered grows This out of appeal O’Connor, proceedings in which J.: M. surviving Hazel Johnson, spouse Charles W. Johnson, deceased, seeks to avoid the enforcement of an antenuptial agree- ment and also to strike certain items from the inventory Charles’ deci- From an adverse to her. belonging being
estate as property court, has appealed. Hazel sion in district en- for (1) our consideration: are questions presented Three ownership (2) forceability antenuptial agreement, Survivor,” "or or Hazel name of Charles checking account is entitled to widow surviving the executor or whether (3) time the homestead crops proceeds growing Charles’ death. been having of them most dispute, facts are not in serious court. conference in district to at the
stipulated pretrial M. April Bowers were married and Hazel Charles W. Johnson years nearly seventy-nine age, 1961. Charles each, prior their was the second This fifty-nine. marriage. first had two children her died. Hazel having spouses had children his and are adults. Charles five living Both are *3 him and left no surviving of predeceased Two them marriage. first two Charles’ him and children. left predeceased One son heirs. along with the grandchildren, children and the two living two estate, are here. appellees of Charles’ executor 1961, and 1, to their Charles day prior marriage, On April public before a notary executed Hazel Mr. attorney, William N. Beez- by Charles’ prepared that had been Moffat, who had as for attorney Mr. A. L. acted of ley, Kinsley. her counseled with and advised years, of period Hazel over law, under the her obligations her and view of to respect Charles, and further to her marriage explained contemplated agreement. agreement generally of the provided terms by owned each of them at the that all commencement of property by or thereafter either of them marriage, acquired during and him controlled her should held or and be sub- marriage, his or in the same manner and to disposition her the same ject had marriage extent as if the never been proposed celebrated. A that upon further the death of provision either party, survivor, inheritance, because of such survivorship or of way or to the would assert claim and property estate of with, in accordance party, except deceased and limited by, the for Hazel: following provisions agreed “It covenanted and the said Hazel M. Bowers shall have Johnson, receive out of the estate the said Charles W. should she widow, following,
survive him as his to-wit: a distributive share of Kth following real proceeds described the sale of the of the for distribution of estate, to-wit: (280 county) acres of land in Edwards provided by paragraph of the said and testament as 5th of the last will herein, part Johnson, party and dated December Charles of the first W. per- statutory from the and in allowances addition thereto the widow’s party sonal in addition thereto Kth estate of the first personal of the final settlement of estate estate for distribution on the party and share of the said Hazel part, full interest of the first as and Johnson, survive should she M. estate of the said Charles W. Bowers agreed hereto the that after the him. It is further agrees [part] Johnson, party to make a last will said Charles the first W. conformably and the said of this and testament to and in ratification provisions party Bowers, agrees part, consent to the M. the second of such last will and testament. relinquishes heirs, hereby “And the said unto the de- Hazel M. Bowers visees, party legatees, executors, assigns of the said administrators and interest, right, part, any claims, shares, the first and all distributive her property title and the said W. estate in and estate of which Johnson, possessed, except provided the terms shall die seized and agreement. agreed “It is further understood and the said Charles W. Johnson size, has made full extent disclosure the said Hazel M. Bowers Bowers, hereby property value of his And the said Hazel M. estate. agree- acknowledges prior execution of this declares that to and in the ment, attorney independent competent she has of a had the advice of counsel advising choosing, employed by purpose of her own herself for the agreement.” her in all matters in connection with this The fifth referred of Charles’ last and testament paragraph acres, in the the 280 executor was to sell provided administration, debts, after the taxes and costs of payment the balance of the proceeds of sale were to be distributed *4 Charles’ two daughters and one son latter who (the predeceased Charles).
After married, were they death, and until Charles’ the Johnsons resided on the land described in and agree- the will antenuptial ment. the During nearly five of their Charles failed years will, to execute a new as called for by the terms of the agreement, 4, 1966, 28, and his death on his dated upon January will December 1959, 4, 1960, and a dated codicil thereto were August admitted to Mr. Vernon probate. Kephart, cashier of The Macksville State Rank, 13, 1966, was and as appointed qualified executor. On April filed her election take Hazel under the laws of intestate suc- Thereafter, court, cession. the executor filed a in petition probate 688 the that requesting and the
setting up antenuptial agreement, and the set aside the under law widow’s election take In her answer terms. accordance in agreement be enforced be- and enforceable binding not the was alleged Hazel marriage, their a new after execute will cause did not (1) Charles agreement, and (2) of the antenuptial called terms as for 280 acres of 160 acres had established that since the parties her homestead, surviving as was so claimed land as a that the 280 acres agreement directing provisions spouse, and of enforcement. incapable inoperative were rendered be sold court in found Hazel’s probate petition, After hearing agreement. election enforce the to set aside her and refused favor 13, 1966, on in Meanwhile, filed an inventory the executor June account, certificate of and checking deposit included a which were had added checking name been to the note. Hazel’s promissory and at Charles’ marriage, four months after about $10,000. a balance in excess of the account reflected death 1963, 22, had been purchased July of deposit certificate $4,000, and was or Mrs. payable “Himself Hazel amount note, 21, 1964, May dated promissory was M. Johnson.” $1,600 and payable was to “Charles W. face amount Johnson M. or Hazel Johnson.” Hazel filing inventory to the filed a Subsequent petition, and statutory allowances 160 acres of the her as claiming acres homestead, and further the three items requesting above be as as the inventory, well landlord’s share stricken from on the homestead. The growing probate crops granted court its entirety. petition Hazel’s and both appealed Charles’ heirs rulings
The executor court, where, the district disclosed by court probate pre- order, stipulated agreed: the parties trial Paragraph knew understood the “That Hazel contents of Johnson will; antenuptial April 1, 1961, decedent’s contract dated understandably made; fairly just equitable, that its terms are and the provided the widow under terms of the amount contract decedent; disproportionate fully to the estate that the decedent did prior property to M. his Bowers to the disclose execution of the an- April tenuptial parties dated contract that neither of the mis- respective properties other; represented their each of the antenupital having independent legal contract after received executed ad- respective rights, fraud, misrepresenta- and that there no vice as to their overreaching Johnson, tion, nor Charles W. the decedent.”
689 of Hazel and was that hearing at the offered only testimony 1967, 28, district judge Thereafter, farm on tenant. June concluded, inso- he in which filed a opinion memorandum lengthy antenuptial agreement far as (1) appeal, relevant the law enforceable, to take under election valid and Hazel’s aside; joint account was should be the checking set (2) account, and of Hazel survivorship tenancy right death; and the executor (3) at Charles’ account terminated on the home- all crops growing was entitled to the from proceeds at was entered accord- stead time of Charles’ death. Judgment and this followed. ingly, appeal here, not cross-ap- not involved
Although appellees since note district we court judgment, from pealed any part concluded note were held promissory of deposit certificate Charles survivorship and Hazel as tenants with joint Hazel was owner of each item as the tenant. surviving
Hazel’s on her contention the argument void and agreement unenforceable is twofold. She first urges is a nullity because to make last will testa Charles’ failure ment its terms. She “conformably ratification of” points to her hearing, uncontradicted oral the district court testimony wherein she testified that she and day signed Mr. agreement, Beezley told both “the agreement them wouldn’t any good be unless new will was made.” This testimony was ob to, but the district jected judge apparently admitted it show the circumstances the transaction. While the surrounding admissibility debatable, testimony may of such district apparently be court credence, it no which gave weight liberty the court was at do. Central & (See, 252, Gibbs v. 163 Surety Corp., Ins. Kan. 181 P. 2d 498; Johnson, In re 437, 155 125 P. Estate Kan. 2d 352.) If a contract is clear and unambiguous, which we believe this is, the terms thereof must be construed in such manner as to intention give effect at the time they contract, and this entered into must be determined Wiles, 613, four comers of the instrument itself. v. 202 (Wiles Kan. Krause, 271; 452 P. 2d Kittel v. 185 347 Kan. 269.) P. 2d Words cannot read into the impart intent wholly it Iowa unexpressed when was executed. Middle (Mays Realty where, 2d Corp., P. The result is here, mistake, no fraud or mutual a plain there is and unambiguous terms, contract must be according written enforced and the *6 contract the terms by governed are Smith, In Estate re without (See, the aid evidence. parol 89, 427 199 Kan. P. 2d agreement that the antenuptial argument thrust of Hazel’s it was never did contract because binding and become valid her support position, “ratified” a new will. To by making Garden, 554, 148 P. Hazel relies on In re Estate solely 2d and will agreement for the that an antenuptial proposition other, contract, to and when constitute one complementary each he agreed, agree- husband fails that which provide a sharp ment is A facts that case discloses void. review the There, signed contrast from those here. bride prospective upon with her betrothed husband his antenuptial agreement repre- sentation and that was to him unre- explanation purpose give stricted freedom to transact his varied and extensive business fit, affairs as he that he make saw his oral would upon promise estate, a will to her a substantial share of his devising which he after their accordingly years did. two Approximately marriage husband made new will which varied substantially the one he had executed on the of his There marriage. eve was parol evi- dence the facts and regarding circumstances under which the executed, first will were including betrothed husband’s assurances to his that prospective wife two instruments were a of each other and were not part to be changed without her consent. In holding the widow had the elect to take her estate, share her statutory husband’s and not will, under the later this court said the agreement antenuptial first will should be read and construed together as complementary instruments constituting one agreement the parties. The court noted that the antenuptial agreement read itself gave the pro- fact, bride spective absolutely all nothing. of the testimony was to the effect she signed agreement solely because of the assur- ances and representations by the prospective husband that she would not be barred from his estate because of the will he was court executing. further commented on the lack of the essential element of fairness her respect provisions agreement unless antenuptial the will were considered as part the antenuptial between the compact A parties. further observation noted was that had opinion the prospective husband made his to her in representations good faith and believed he could change not understandingly marriage, agreement his will after after the later alter his will made; he could if he believed even consent, fraud perpetrated then he without his wife’s It is contrary. apparent her on her when he assured fraud, sig- were understanding lack of fairness overreaching, will, nificant antenuptial factors in the case. The instrument, were ma- as one together when read and construed will, and under all second breached husband’s terially circumstances, to elect to take under the widow was permitted law and contract. disregard antenuptial that of the wife
Hazel’s her here with attempt equate position thing, antenuptial in Garden For one unjustified. is completely her to a substantial of Charles’ receive provided *7 Further, and district court estate. stipulated, times, found, at all that Charles dealt with his affianced wife fairly made, and its terms were agreement fairly understandingly and was to receive was not dis- just the amount Hazel equitable, estate, disclosure, to there proportionate Charles’ was full each party legal executing agreement, received advice before independent fraud, overreaching. and there or clearly misrepresentation, no The well-established rule in this state is that contracts made either before or after of which is to fix marriage, purpose property wife, a to liberally interpreted between husband are makers, such con- uphold to out intention to carry made, are they fairly understandably just tracts where are and are not or in their obtained fraud over- provisions, equitable 117; West, 736, In Estate 194 Kan. 402 P. 2d g., re reaching (e. of Gillen, 254, 357; P. 2d In re Estate In re Estate 191 Kan. 380 of Cantrell, Ward, 366, 1081; 154 285 P. 2d In re Estate 178 Kan. 546, P. 2d The rules construction of 483). governing Kan. 119 also to construction of applicable antenuptial contracts are generally West, Brown, re In re Estate 189 supra; contracts. Estate (In of 385, Hill, 193, 27; P. 2d In re Estate 162 Kan. 176 P. 2d Kan. 368 515.) effect,
Hazel, to rescind the be- seeks breach of its terms. to right Rut purported cause Charles’ a contract is extreme and does not arise from necessarily rescind rescission, the To warrant breach must be material breach. every object to so substantial as to defeat perform and the failure A breach which agreement. goes only to making the parties consideration, which is incidental and subordinate a part 692 contract, a does not warrant rescission. a main purpose 137; 842, 2d, Am. 18 P. 2d 17 Con- (Baron Lyman, Jur. [1]; S., Corbin on Contracts
tracts 17A C. Contracts §504; §422 J. §1104.) rescind an antenuptial agree- of a party respect right 2d, 41 ment, from Am. Husband find statement following we Jur. 293, In re Estate in substantial quoted Wife which was § Ward, supra: antenuptial agreement, general parties enter into an “The rule is that where perform agreement must and conditions of that each the terms before he or However, the rule that she can claim the benefits to be derived therefrom. performance equity partial compel there has been rescission where marriage applied marriage has occurred has been settlement where considerations, a kind and but such as to be the claim is made that other spouses, spouse, property take and to dutiful to use for the benefit of complied spouse age, It has with. care of the other in old have not been restored, marriage that cannot be been held that since is consideration independent, and failure or are covenants in settlement per- right party performance his or her of their one does not defeat other, willing perform or the latter former is and can formance if the damages breach, .” has a for the . . see, 2d, Am. Husband Wife (Also, § Jur. 1, Munn, 624, cases, Kan. 125 Pac. early One of our Gordon v. not on factually denied 88 Kan. 127 Pac. while rehearing fours, all reluctance of courts to rescind strongly indicative in the of an deny specific performance antenuptial There, an of fraud or other considerations. equitable absence that the wife contract its terms antenuptial provided by prospective *8 title, in all interest and inheritance of her right, property waived in to her intended husband consideration for his to agreeing convey to by deed two real estate be her sole pieces property. failed to execute the deed as held husband court promised. This circumstances, fraud, that under the where there was no deceit or wife, the title the real agreement vested to estate in the equitable and the failure of the husband to the conveyance execute did not the enforcement of prevent agreement. Ward, in In re Estate Similarly, had supra, parties exe- that antenuptial agreement
cuted the intended providing hus- a band was to home for his purchase future wife to in for live the rest in of her life the event he predeceased her. The husband died eighty-three days after the and before a home could be purchased. widow that she be take requested permitted to for contract antenuptial aside law, and to set sought under the fraud, obtained had been reasons, execution including various re- provisions with comply had failed that the decedent no proof held there was The court a home. garding purchase consideration, and lack of for fraud, not void the contract was dur- a home buy his promise to fulfill that the decedent’s failure invalidate alone, lifetime, insufficient was standing his ing contract or render it unenforceable. absence in the holding jurisdictions
For from other cases al agreement, an antenuptial to rescind a is not entitled fraud wife thereof, see, a failed to covenant perform the husband has though 831; Cantor v. Cantor 30, 136 N. E. 243 Mass. Wellington Rugg, Will, 304; 2d Eisner's Misc. 174 N. E. 2d re (Ohio), 181 N. Y. S. 2d 327. that Charles’ failure to say unable to
Under the facts here we are antenuptial of the with the conformity provisions execute a will breach going or fundamental substantial Indeed, make a did his failure to will agreement. heart of very in the making object parties not defeat the entered into the agreement, first place. When had more from Charles’ estate receiving anything no intention In contrast her in the agreement. than was provided Garden, facts in had Charles made will conforming pro- Hazel would have received same agreement, por- visions of for her in the Hazel’s agreement. tion of his estate provided rights, whether derived from the antenuptial agreement of the agreement, were identical. embodying provisions later in his mem- judge We subscribe to the statement district orandum decision contract, contract] said the will was conform to the [the “. . . it doing only things contract. A will those to be in ratification would contract; reality making to meet the terms of his so in been sufficient surplusage.” be of a new will would argument unenforceability Hazel’s
The second real the sale of the 280 acres of concerns She her homestead 160 acres thereof. subject estate sale; her main complaint of such legality does not question of the land to her homestead would subject that the sale price what was defeating contemplated by thus seriously depressed, contained in the antenuptial agreement. for her benefit provisions *9 Hazel is entitled to her homestead rights; concede The appellees rights she waived those hence, of whether do not have the issue we In re Estate (See, contract. under the terms the antenuptial of Place, 110; 166 Kan. Neis, In Estate 225 P. 2d re 170 Kan. 528, 203 2dP. 132.) to rule, of performance for impossibility As a in order general that the rescission, clearly appear it must for ground constitute from that different essentially would only performance possible 2d, Contracts 506.) Am. in contract. (17 promised § Jur. dis- agreement of the antenuptial A examination of terms close right in to Hazel’s regard no was made closes that reference specific her. Other predeceased claim a homestead the event relin- whereby Hazel than general agreement provisions claims, interest, in or to the property all and title right quished Charles, estate in die no provided agreement, attempt except in the event she from homestead claiming was made to bar her after their estate question Charles established one the real Indeed, of the wife cannot rights we have homestead marriage. said Neis, re Estate antenuptial agreement. (In be affected Place, later In re Had Charles made supra.) Estate supra; Hazel, in with the terms of the for accordance providing thereto, would not and Hazel had consented she have agreement, it clearly waived the homestead unless from appeared her for her the will that the therein made were intended to be provisions 59-404.) S. A. Since the rights. appellees in lieu of such raise (K. no assume that at question contrary, may safely we the time into, was entered Hazel’s right unfettered. future homestead was intended remain that in addition to one-fourth antenuptial agreement provided sale of the real estate Hazel was to receive proceeds statutory her widov/s allowances one-fourth Charles’ terms of the personal parties agree estate. were amount just equitable, provided the widow was to Charles’ estate. The disproportionate Hazel gave in addition to the portion rights substantial of the estate homestead Hilliard, In law. re Estate granted (See, her She, course, could, death, P. 2d Charles’ homestead, relinquished but this she did not choose to do. matter, could, did, For that if all waive homestead now, homestead, agreement, by claiming the terms she her than receiving originally contemplated. more our view situation, in no urge Hazel is sale of the land position *10 of the object purposes will defeat subject to her homestead agreement and its rescission. justify helpful of them is none but arguments,
Hazel other advances not that she is We hold to her not discussed. cause and be relieved entitled to rescind the estate stand of his the executor Charles’ heirs and provisions. court The district of the ready agreement. the terms perform Hazel is enforceable properly determined the in with accordance Charles’ estate entitled to receive the share of those terms. determining in
Hazel district court erred next asserts the account, title to which a joint tenancy was not checking The tenant at Charles’ death. passed to her as the surviving Charles maintained marriage record reveals that at the time of the Bank. According account in Macksville State checking after their testimony, Hazel’s about three weeks honor took officials to her checks her to the bank and told the bank on went to again his account. Charles and August the bank and officials he wanted his account Charles advised the to a On occasion changed “joint they signed account.” check signature security card. small social one Except Hazel’s, all other to the account made with deposits were Charles’ account, Hazel wrote money. numerous checks on the both before signature after the card was executed. Card,” card and Signature was entitled “Depositor’s Contract with both sides. The printed provisions and on appropriate spaces front of the instru- pertained portion side Card” “Signature ment. A notation W. or Hazel typewritten “Johnson, Chas Johnson or fol- Survivor” corner. There appeared right-hand the upper any lowed provision recognize the bank was authorized of funds or signatures payment “subscribed below” for the account. Four of accounts types transaction of business one. shown, box to be checked after each appropriate were with Fol- A “X” had been inserted after word typewritten “Joint.” W. and “Hazel of “Chas lowing signatures were the John- Johnson” of the side the card appeared son.” Near the bottom front Contract,” followed seven paragraphs words “Depositor’s continued to the back the card. small One of these print, and provided Accounts” specifically referred paragraphs “Joint later either both of said that all on or or deposit deposited sums them with jointly, were to be owned joint depositors, of them of either receipt to check subject and were survivorship, last following provision or the Directly survivor them. the state- card appeared back “Depositor’s Contract” and are been read ment, contract have terms of the above “The sig- were two Following hereby of account.” agreed by owner signed. nature lines which were not of the card court, the contract noting portion
The district after added for Charles’ only name was found Hazel’s signed, her a half interest or the intent to give convenience and not with court account. The interest in the joint tenancy survivorship *11 established with that á must be joint tenancy concluded inasmuch as 58-501, S. A. and of K. clarity requirements under the certainty had said account termi- Hazel’s claim fail and she any rights must nated Charles’ death. upon Sullivan, 193,
Hazel contends that under Malone v. 136 Kan. 14 Wilt, Simonich, 647, 275, P. 2d Executrix v. 197 Kan. 85 A. L. R. 417, 139, survivorship 417 P. 2d a with joint tenancy right account was clearly established. the created in
Whether or not a bank account is joint tenancy name of a must be determined on contract depositor another Smith, 89, re Kan. 427 P. 2d If principles. 443.) Estate 199 (In an card contains as depositor signature executes account of its lan- unambiguous clear provisions agreement that a guage account with the joint tenancy right survivorship intended, then and the is such an account is created case, according enforceable to its terms. In such card signature bank, a and the constitutes contract in between the writing depositor parol evidence of an variance with its terms understanding Smith, Simonich, cannot be re supra; considered. Estate (In Wilt, When, however, language Executrix v. supra.) ambigu- is uncertain or signed by depositor written instrument ous, facts and circumstances relating existing parol evidence to and with execution of instrument prior contemporaneously in order to the intention of the at the clarify depositor is admissible the account. We held that a time of the creation of when is without of a opened signature account the use card two-party writing signed by depositor, joint or an valid instrument and bank tenancy depositor may account between nevertheless the if terms of clearly evidence proved parol tenancy was intended be established. The joint disclose which the thing clarity is with intent of the de- all-important
697 initiated. (Ed transaction is at the is time positor expressed 834, and authorities 518, 441 2d v. P. Ledford, wards 201 Kan. cited.) therein card
Here, portion Contract” “Depositor’s executed, instrument contain- so we do not have a written signed create sufficient to would be ing express which otherwise language signed only tenancy account. Charles contained portion Card” of the instrument. This “Signature portion con- language in any a check mark Absent is after account. “Joint” to in- intended with indicate the junction parties “Joint” appearing Accounts” corporate relating provisions “Joint The type- of the instrument. “Depositor’s Contract” back Survivor,” or written notation Chas W. or Hazel “Johnson, Johnson if some oral agree- even considered as written memorandum of ment or which the account was estab- arrangement pursuant lished, as to inconclusive the true intention This court Ledford, supra.) terms of v. agreement. (Edwards requirements has said similar measured language, when 58-501, tenancy A. a joint of K. S. is not clear to establish sufficiently 736, 366 P. (Miller Higgins, survivorship. 257; Snell, 54; 2d 350 P. 2d In re Riggs v. Kan. Estate of We deem the Swingle, language Kan. 289 P. 2d to be “Signature Card” the instrument here uncertain portion of and resort had evidence in an ambiguous, must be to parol *12 effort to ascertain the depositor. the intention of scant, say
The here the least. There was parol evidence Hazel’s that officials only testimony told the bank “to make a “joint it in the account” joint account.” our words opinion, alone not standing imply joint without further do true explanation be no tenancy testimony intended to established. There was by any bank official or the circumstances sur- employee concerning the rounding explanation transaction —such as an to Charles account, of the joint customary Hazel of a the legal significance at that account. creating joint tenancy bank time practice far short that in The the instant case falls Edwards proof Sullivan, In the v. and Malone v. latter case Ledford, supra. supra, banker, that including orally all the the account parties, agreed the the opened joint right should be account with survivorship. here Miller Higgins, supra, The case is more v. analogous in the opinion. finding is discussed in detail Edwards not tenancy district court that bank account the ac- of Hazel to any rights survivorship count must be sustained. terminated Charles’ death district court in holding further asserts the erred the exec- utor was on the crops growing entitled to proceeds essentially death. Her argument homestead at the time of Charles’ is that an executor or contemplate the law of this state does homestead, including administrator is entitled to any part widow. The growing crops, appellees, opposition hand, other seek the decision of the court by relying to uphold Jower 59-1206, on K. S. A. which provides: crops, “Annual whether severed or not from the land of the decedent at tire death, personal custody time of his shall deemed assets in the of the exec- utor or administrator and shall be inventoried and administered as such.” The precise has been this point apparently never decided court. laws, 15, 9,
Our homestead from Article although stemming § constitution, state only embrace not the constitutional provision but also the various statutes for the legislature pur- enacted pose carrying constitution into effect. The homestead clause of the constitution not in homestead does terms express provide rights after the death owner. Even before the enactment of court, decision, legislation on the held subject, by judicial homestead retained its nature as as members of the exempt long v. family owner’s continued to dwell thereon after his death (Cross Benson, statutes, 68 Kan. 75 Pac. and by various culminat- 558); 59-401, with K. S. A. ing legislature has extended such expressly owner, the death exemption, upon to his surviving spouse children. in our decisions
Early we made clear the enact legislature could legislation extending homestead right beyond guaranteed constitution, “so long as extent of the homestead shall inbe accordance with sound and humanity, and no policy greater than shall be reasonably necessary protect citizens in their pursuits necessary their existence and being.” well v. (Cusic others, Douglas 3 Kan. only constitutional limi tation was that legislature could enact no law restricting homestead right guaranteed by Towle, constitution. (Towle 675, 107 Pac. 228.) *13 of this state policy has been always the zealously protect family rights homestead property, and this court has liberally construed the constitutional and statutory provisions relating
699 humanitarian as to their safeguard homesteads in such manner Mitchell, rel., ex v. (State, sound social economic purposes. Watson, 693, 463, 556; 106 Kan. 189 Watson v. 194 Kan. 399 2dP. Bank, 540, 273; Ben 949; Weaver Pac. Cross v. v. 76 Kan. 94 Pac. son, and minor surviving spouse We said that have supra.) homestead, children are the rents and from entitled to profits full occupancy such rents incidents to the profits being Durant, 30, v. enjoyment 110 Kan. premises. (Campbell vein, v. Pac. we held in Lumber Co. 841.) Isely 202 In a similar Kitch, 133, a crops growing 256 Pac. that annual on owner, against homestead were from sale on execution exempt stating: provide purpose exemption place . a “. . The of the homestead may place family provide in which a debtor live on he and his and to which family by crops can raise food for sown his creditors. If without interference occupant they growing, of a homestead be levied on and sold while are (p. 444.) purposes exemption one of the be defeated.” of the homestead see, S., 40 C.
(Also, Homesteads 70b.) § J. Construing the liberal manner to homestead statute in the entitled, it is we the situation perceive distinguish no valid reason to There, levy from that here creditor Isely. judgment sought Here, we against homestead. crops living owners growing is, entitled to surviving who without spouse question, If homestead exemption (59-401). extended to her the statute in the growing crops homestead protected exemption are owner, case in the the same status living they enjoy should hands of the home- occupy who continues to surviving spouse, stead, administrator, free executor or exclusion the claims of creditors. S. A.
We are of the of K. provisions that in the broad spite view 59-1206, occupy- widow legislature surviving did not intend the thereon at the ing homestead deprived crops growing of her would cast serious time husband’s death. To hold otherwise on the effort by legislature doubt statute as an validity right guaranteed by of the homestead infringe upon enjoyment should, if be so con- reasonably constitution. A statute possible, Shanahan, as to uphold constitutionality. (Harris strued Although exception P. 2d the statute makes no Kan. death, cursory homestead at date of crops to annual con- of other code fortifies our probate examination statutes beyond are the reach the decedent’s growing crops clusion *14 700 the purview the are not within
personal representative administrator shall the executor S. A. provides statute. K. 59-1401 except the decedent all property the right have a to possession minor surviving spouse to the the homestead and allowances and statutory homestead the children. to setting apart respect so set apart allowances, property the K. S. A. 59-2235 directs the persons or administrator shall be the executor delivered thereto, custody. as assets in his not be treated entitled and shall are entitled maintain that since heirs devisees Appellees at time of his decedent on land of the crops growing Practice, 763 Law and death 2 Rartlett’s Kansas Probate (see, § is the sur- therein; A. R. 2d neither 1373), cases cited Anno. 92 L. thereto. In view of entitled homestead viving spouse claiming life, and owner’s during accorded homestead sanctity the surviving during occupied by also its continued existence while is unfounded. spouse, analogy attempted Nevins, Mo. Mahoney Our research has that in disclosed of the growing property 88 S. W. the time crops death held wife belong surviving husband were under a which to the exclusive gave right statute survivor possession of premises. stated,
For the reasons hold that we entitled of the homestead at the time proceeds crops growing death, Charles’ and the district court’s order to contrary erroneous. judgment of the lower court in respect the growing crops reversed,
is and the remaining portions of the judgment are affirmed. I dissent from that J., dissenting: respectfully
Schroeder, portion decision court’s the bank account of Charles holding W. and Hazel an account for Charles’ con- Johnson Johnson venience and not a account with joint tenancy right of survivorship. The technical niceties the court to required by establish a joint bank account tenancy right survivorship, my opinion, border on the ridiculous in this case.
The contract the account establishing following: indicates First, the account of Charles W. and Hazel is titled: Johnson “Johnson, Chas W. or Hazel or Survivor.” (Emphasis Johnson added.)
Second, of Account” is indicated “Type “X” inserted in the box after word “Joint.”
Third, itself, defined in the instrument all joint using is words, discloses the establishment of a magic clearly joint account with right survivorship. circumstances,
Under these resort to parol evidence unwar- ranted and What the intended was a ten- improper. ancy bank account with and this survivorship, clearly ap- pears from the creating instrument the account.
Unfortunately, “Depositor’s court’s summarization of Con- *15 tract and Signature give Card” does true of the facts picture upon to base the decision relative to this point.
On the face of card in a box left-hand upper corner appears following:
“Depositor’s Signature Contract and Card The Macksville State Bank Macksville, Kansas August
Dated 1961” On the face of the card in a box at right-hand the upper corner appears following:
“Johnson, Chas or Hazel or Survivor W. Johnson Hopewell, Kansas you Are a citizen of the United States? Yes” A double line then across the entire appears face of the card be- boxes, neath these two which is following printed: recognize any signatures “The Bank is authorized to subscribed be- payment any low in of funds or the transaction of for business this account. Individual n Type of Account: Joint Corporation n Partnership (Check n which) Remarks:”
Another double then line across entire face of appears card by followed the area for It is four signatures. by divided center, horizontal lines and one line in the pro- vertical designed vide six spaces for The word is written signatures. “Signatures” In at the left of each set of the vertifically spaces signatures. two of spaces appear signatures these “Chas W. Johnson” “Hazel Johnson.” signature
After the another double line across the spaces, appears face entire card. Then on the face of the card it continuing reads: “Depositor’s Contract (cid:127) receiving deposit collection, “Collection Clause. items for or this Bank only depositor’s collecting agent responsibility beyond
acts as and assumes no subject payment the exercise of All are credited final due care. items negligence default or liable for not be cash or This Bank will solvent credits. transit, cor- and each duly correspondents losses in nor for of its selected negligence. except This respondent for its own not be liable so shall selected indirectly, any directly items, bank may or correspondents Bank or send its payment in including accept credit as conditional payor, draft or cash; may” lieu of it card, the entire face of across At this a line is drawn point side and on the reverse “(Over)” beneath the word which appears follows: card the continues language payment, “charge any any final whether returned time before back item at day not, good at close of business on or Bank not also item drawn on this payment deposited, option may of check or checks at its refuse and the Bank against depositor’s items. drawn uncollected item or payment stop “Stop Payment. on an item is ordered to In case this bank items, expenses depositor agrees the Bank harmless for all to hold item, refusing payment of said costs incurred the Bank on account contrary agrees payment further Bank liable on account not to hold the inadvertence, oversight, through or if this order accident or if same occur payment depositor reason are returned of such drawn other items months, stop payment renewals for six but insufficient. Order for is effective may payment request, stop or revoca- be made renewal from time to time. No upon writing tion shall valid the bank. unless served account, agreed Charge. whether “Service and Maintenance It is deposit (an no active or dormant when dormant account shall be considered *16 year), period shall paid of one shall have been or or for a made check drawn by charges adopted subject this be heretofore to service and maintenance by adopted effect, charges may be Bank and and to such hereafter now existing changes charges and this Bank. and maintenance New service charges upon posting the office of shall of notice in become effective any period days publication local news- Bank for thereof in of ten or the depositor paper period, upon giving than not less before the end of said or days’ writing to the Bank. ten mailed to the last address known notice charges depositor’s may and the Bank shall Such account be deducted from drafts, notes, acceptances dishonoring checks, in- or other not be liable for resulting of such struments because of insufficient funds from the deduction charges. hereby agree depositors and each the other Accounts. with “Joint Joint by deposited deposit all on or hereafter with the above bank that sums now joint depositors bank to their credit as such either or both of said with said thereon, by joint depositors, and be all accumulations are shall owned with receipt survivorship, subject jointly, or and be to the check them with payment to or on the check of of either of them or the survivor of them liability. discharge said bank from either or the survivor shall be valid attorney, power deposit joint depositor hereby appoints Each the other other, purpose joint moneys to endorse in said of the check, payable draft, other or both instrument to the order of the note or other Payment sub- depositors. check of the survivor shall be of said to or on ject relating all and succession taxes and rules to the laws to inheritance regulations authority pursuant of the bank under or made thereto. The depositors or either changed or terminated said shall not be not affect transac- except by shall them to said bank which written notice tions theretofore made. Partnership agreement concerning Accounts “Partnership [The Accounts. point.] is set forth at this Corporation “Corporation agreement concerning Accounts [The Accounts. point.] is set forth at this “Mailing and can- to mail statements Statements. The bank is authorized celled checks to the last address to the bank. known agreed hereby are “The terms of contract have been read and the above owner of account.” bottom
At this across the card point line is drawn entire at the the line drawn reverse side. It is identical in length bottom on appears), the face of card the word (where “[Over]” that the at the middle of except line has a of one-fourth inch space the card. The court has bold this line was assumption made the intended de- the two provide for a second space signature positors. however, Nothing, indicates that the line in question intended to depositors. second require signature depositor fact, In if a signature were to affixed available above space in the line, it than would have to be written in letters no three- greater sixteenths of inch in height, whereas the space provided face of the card for is of an inch in signatures three-eighths height for each of six signatures. format of this docu- my opinion, the ment this line the de- suggests intended for signatures never It positors. that a hardly signatures stands to reason second set of was contemplated when for six is adequate space signatures spe- cifically card, provided designated as such on the face of the and at best half the only for two space possible signa- available tures on line the bottom of card indicating on the reverse side. The document entitled “Depositor’s Contract Signature Card” was unquestionably designed signatures provide the face of the card to make the signatures available for reference in a card file at bank.
It is inconceivable me whose signatures appeared card, on the face of this “Chas W. and “Hazel Johnson,” Johnson” *17 failed agree Depositor’s Contract. Could it be said the bank had agreement no with the depositors concerning the collec- items, matters, tion of stop payment service and maintenance charges, matters relative to the mailing of statements to not. Both the parties? Clearly bank and the parties who- estab- Contract Depositor’s understood fully this joint lished their signatures they placed when to be indicated token, they fact the same By face of the card. provi- Accounts” be invoked type of account to “Joint sion set forth in the instrument. in- the written construction of fortify this
Other considerations Contract and “Depositor’s strument. The document entitled Card,” whereby one instrument it be indicating thus Signature their authorized supply contract the bank also parties fact, makes refer- the entitlement signatures. signatures. their Contract before it does to ence the Depositor’s across its face at three The division of card double lines parts. it by making separate does not divide the contract four places Instead, en- are a document parts portion all of various one It was executed Signature titled Contract and Card.” “Depositor’s signatures and bound the affixed their they place when fact of the card. This is confirmed designated face their above placement parties’ signatures, indi- account, cation of lan- the establishment a joint appears “The Bank guage: any is authorized to recognize signatures subscribed below in or the transaction payment of funds business this account.” (Emphasis added.) By language Depositor’s Contract is agreement by incorporated into signatures affixed on they the face of the card “this establishing account.”
It is respectfully submitted the bank account in is a question joint account with survivorship, and the lower court should this point. reversed on