Dye v. Parker , 108 Kan. 304 ( 1921 )

The opinion of the court was delivered by

Mason, J.:

This action is in effect one for the reformation of a will to conform to the intention of the testator. The district court sustained a demurrer to the petition, and the appeal is taken from that ruling.

The facts as stated in the petition may be thus summarized: The will in question is that of Hattie M. Dye, and was executed January 11, 1919. She died January 28, 1919, and the will was admitted to probate. As it is written it disposes of but a portion of her property, giving it to her granddaughter Faye Parker, the rest of it going to Lera A. Parker under the statute of descents and distributions. The testator directed Emil H. Koehl, who drew the will, to insert a clause devising certain real estate to the plaintiff, George C. Dye, but he purposely omitted it, although pretending to her that it was in-eluded, reading the instrument to her as though such were the case, and inducing her to sign it in that belief. Koehl did this fraudulently and in collusion with Charles H. Parker, the husband of Lera A. Parker, who as the testator’s heir at law, inherited all of the estate not disposed of by the will, including the realty referred to.

The Parkers and Koehl were made defendants. The relief asked is that the will be corrected so as to include the omitted devise, so that the action is substantially one for its reformation. It is too well settled to require extended discussion that^ a court of equity has no power to reform a will. (See Holmes v. Campbell College, 87 Kan. 597, 125 Pac. 25, and authorities there cited; 23 R. C. L. 318-320.) One reason usually assigned which seems to be sufficient is that such an action is in the nature of one for specific performance and requires a consideration for its support — an element lacking in the relations of a testator and beneficiary. Of course where a will is made in pursuance of a contract the rule would not apply, but that is not here alleged. Upon the same ground courts almost uniformly refuse to reform a voluntary conveyance at the suit of the grantee. (23 R. C. L. 344; 2 Story’s Equity Jurisprudence, 14th ed., § 982.)

, If the petition had alleged that the person who profited by the deceit practiced upon the testator had been a party to its perpetration, a remedy could doubtless be provided by impressing a trust upon the property acquired through the fraud in the hands of the beneficiary. But the circumstance that the wife of one of the wrongdoers benefited by the imposition does not afford opportunity for relief of that character.

However much it may be regretted that the courts are unable to rectify such a wrong as that here pleaded it may .well be believed that to allow the enforcement of provisions regarding the property of a testator that were never in fact reduced to writing and signed would go far to defeat the purpose of the législature in making these conditions essential to the validity of a will.

The judgment is affirmed.