55 P.2d 373 | Kan. | 1936
The opinion of the court was delivered by
This was an action to construe the will of Dora E. Clancy. Omitting the formal opening, the will reads:
“I want Mrs. Lillian Flanagan appointed executrix of this will.
“Now, when all just 'debts are paid and this estate is to be settled, I want all bonds to stand, as far as possible, as they are. There is one insurance policy in the Security Benefit Association and one in the Metropolitan Insurance Company. There is also money in the post office. Mrs. Lillian Flanagan is to have the distributing of this to be held as her own.
“$500 to M. F. Mickey, Chicago, 111.
“$500 -^o David Mickey, Junction City, Kans.
“$500 to Miss Bernice Robinson, Junction City, Kans.”
The instrument was properly signed and witnessed and was duly admitted to probate. The property of the testatrix consisted of
The trial court held the will bequeathed to Lillian Flanagan the personal property above mentioned, appraised at $6,920.01, the bequest being charged with the payment of $500 each to M. F. Mickey, David Mickey and Bernice Robinson, and that the testatrix died intestate as to the real property.
Plaintiffs are sisters and heirs at law of the testatrix. They have appealed, and contend the testatrix died intestate as to all her property except the three $500 bequests. Lillian Flanagan, by a cross appeal, contends the will bequeathed and devised to her all the real and personal property of the testatrix, charged with the payment of the three $500 bequests.
The testatrix was the widow of a former United States army officer; one of her sisters lived in Texas, the other in Illinois; she left no children surviving her. Mrs. Flanagan was a friend and neighbor of testatrix. The will was executed about two weeks before the death of the testatrix, and while she was a patient in the Station Hospital at Fort Riley, suffering from cancer, chronic heart ailment and pneumonia. She dictated the will to a nurse, who is a stenographer. The will is in the language of the testatrix; it appears she had no instructions or advice from anyone as to the wording; the punctuation is that of the stenographer.
Our duty, like that of the trial court, is to interpret this will and to determine what the testatrix meant by the language used. The first paragraph of the will nominates Mrs. Lillian Flanagan as executrix; no question is raised about that. Taking up the next paragraph: The first sentence reads, “Now, when all just debts are paid.” This indicates that testatrix intended and fully expected that her just debts would be paid out of her property before anything else would be done with it — as the law provides — “and this estate,” obviously meaning my estate, “is to be settled, I want all bonds to stand, as far as possible, as they are.” This expresses a wish of the testatrix. The inventory, which we may look to as an aid to interpretation of a will drawn under the circumstances this one was (Donohue v. Donohue, 54 Kan. 136, 37 Pac. 998), perhaps
Naturally, we presume the testatrix had some definite thing in mind wdiich she desired to express with reasonable clearness. Since the testatrix in dictating the will gave no attention to punctuation, we, in interpreting the will, may ignore or change the punctuation marks used by the typist if by doing so we can get a more intelligent understanding of the language used. (Holt v. Wilson, 82 Kan. 268, 272, 108 Pac. 87.) It is clear the period after the word “own” should be a comma or semicolon; otherwise what follows is simply a tabulation, disconnected from words indicating a gift, or directing distribution of the sums mentioned to the parties named.
It is also the rule, rather than the exception, that a gift in a will to an executor is deemed to be to him in his official capacity instead of being given to him personally. In Thomas v. Anderson, 245 Fed. 642, the pertinent headnote reads:
“It is a cardinal rule that a devise of property to an executor is presumed to be given to him in trust, and not privately, and, in order to justify a court in reaching a contrary conclusion, there must be language in the will which clearly expresses such an intent.”
See, also, 3 Jarman on Wills (7th ed.), p. 1599; 69 C. J. 223; Beakey v. Knutson, 90 Ore. 574, 177 Pac. 955; Christman v. Roesch, 198 N. Y. 538; In re Megrue’s Estate, 237 N. Y. Supp. 523; Gilman v. Gilman, 99 Conn. 598, 122 Atl. 386; Thayer v. Fairchild, 25 R. I. 509, 56 Atl. 773; F. A. Billingslea v. W. B. Moore, 14 Ga. 370; Helsey et al. v. The Convention of Prot. Epis. Church et al., 75 Md. 275, 23 Atl. 781; Patton v. Williams and Wife, 3 Munf. (17 Va.) 59; General Clergy Relief Fund v. Sharpe, 43 App. D. C. 126; Finklea v. Jordan, 14 Rich. Eq. (73 S. C., old series) 160.
These authorities sustain the view that while a testator may make a bequest or devise to a person nominated in the will to be the executor, with the intention that the person individually will be the absolute owner of the property bequeathed or devised — a thing which is done frequently — the language used in the will must clearly express such' an intention. The will in question does not use language which clearly expresses an intention of the testatrix to give her estate, or any specific part of it, to Mrs. Flanagan to be her sole and separate property. It is only when one attempts to give such a meaning to the language used that confusion arises, bringing up such questions as: What was bequeathed or devised to Mrs. Flanagan — the entire estate of the testatrix, or only a part of it; and if so, what part? What did the testatrix mean by saying that Mrs. Flanagan is to have the distributing of this? If all the personal property other than the household goods was to belong to Mrs. Flanagan individually, was she to pay the three $500 specific bequests out of that property, or are those items to be paid out of
“Mrs. Lillian Flanagan is to have the distributing of this [estate] to be held [for the purpose of distribution] as her own; $500 to M. F. Mickey, Chicago, Ill.; $500 to David Mickey, Junction City, Kans.; $500 to Miss Bernice Robinson, Junction City, Kans.”
These three specific bequests dispose of $1,500 of the testatrix’s estate. Since she did .not name the other persons to whom the remainder of her estate should be distributed, and since her heirs at law are entitled to it, under the law, the distribution of the remainder of the estate should be made to the heirs at law. Mrs. Flanagan has no right or title to any of the property except for the purpose of making distribution. We regard this as the correct interpretation of the will, and it is in harmony with the legal principles and the authorities above mentioned.
The judgment of the trial court will be reversed with directions to enter judgment in harmony with the views herein expressed. It is so ordered.