In Re Estate of Graves , 203 Kan. 762 ( 1969 )

The opinion of the court was delivered by

Hatcher, C.:

This controversy stems from written defenses filed against the executors petition for final settlement disputing the executor’s interpretation of the language of a will.

Laura M. Graves died testate, a resident of Kiowa County, Kansas, November 9, 1965. Her last will and testament was dated July 11, 1955. Due to the specific nature of the controversy we find it necessary to present most of the terms of the will in full. It reads:

“First. I direct that all my just debts, funeral and testamentary expenses, and all transfer, inheritance, legacy, estate or succession taxes, dues or charges, which may be payable on or in respect of any legacy, devise or bequest in this will contained, under any law of the United States of the State or Kansas, which shall be in force at the time of my death, shall be paid by my executor hereinafter named.

“Second. I will and devise to my son, Harlan L. Graves, the following described real property situate in the county of Kiowa, and State of Kansas, to wit:

“The North half (N/2) of Section Six (6) in Township Twenty-Nine (29)

South, of Range Eighteen (18) West of the 6th P. M. together with my interest in the farm machinery and equipment belonging to said farm. To Have and To Hold, forever.

“Third. I will and devise to my daughter, Mary Faye Holland, the following described real property situate in the county of Kiowa and State of Kansas, to wit:

“The South half (S/2) of Section Six (6) in Township Twenty-nine (29)

South, of Range Eighteen (18) West of the 6th P. M.

To Have and To Hold, forever.

“Fourth. For the express purpose of this will, I direct that the probate court of Kiowa County, Kansas, shall appoint three commissioners, disinterested persons, to make personal view and to appraise at its true value in money, the real property hereinbefore devised in the second and third paragraphs of this will, . . . and when such appraisement has been made by said commissioners that it be reduced to writing and returned to the probate court of Kiowa County, Kansas.

“Fifth. From my personal estate I will and bequeath to my daughter, Gena M. Hildinger, property or money equal to one-half (la) of the appraised value of the land hereinbefore described, and this bequest shall be satisfied in the following manner: I have heretofore sold to Clay M. Hildinger and J. D. Baer my interest in the partnership of Graves Lumber and Hardware Company; if at the time of my death the notes evidencing the purchase price and secured by said contract have not been fully paid then I direct that my executor shall transfer and set over to my daughter, Gena M. Hildinger, such a portion of the unpaid notes as shall equal one-half of the appraised value of the section of land above described, and if the unpaid balance of the notes shall not be sufficient to equal one-half of the appraised value of said land then the remainder of value shall be paid in cash to the said Gena M. Hildinger, by my executor.

“Sixth. In the event that the appraisement hereinbefore provided for shall establish a difference in the valuation of the lands devised to my son Harlan L. Graves, and to my daughter Mary Faye Holland, then I direct that my executor shall equalize, in cash, the difference in the values of the land as so determined by said appraisement.

“Seventh. [The residue was left equally to the three beneficiaries.]

“Eighth. [Harlan L. Graves was appointed executor.]

“Ninth. It is my will and I direct that my executor shall have full power and authority to sell any part or portion of my estate not expressly devised or bequeathed by this will, as he may deem necessary, and he is authorized to make and deliver good and sufficient deeds or instruments of transfer therefor.”

The will was duly admitted to probate on December 6, 1965, and Harlan L. Graves was granted letters testamentary. On January 27, 1966, the three appraisers appointed by the probate court returned the inventory and appraisal, valuing the two half sections of land at $44,800.00 each. The balance due on the Hildinger note was shown as $36,600.00.

Gena M. Hildinger filed a petition to appoint three commissioners to appraise the two half sections of land as provided by the will. These commissioners were appointed and on May 23, 1967, they made their return valuing the two half sections at $72,000.00 each.

The petition for final settlement was filed in due time setting forth the above facts and alleged that after the payment of debts, taxes and expenses of administration the money and property remaining was insufficient to equalize the difference between the unpaid balance of the note and one-half the value of the land. The petition prayed that the two half sections of land be assigned to Harlan L. Graves and Mary Faye Holland, free and clear of any claim of Gena M. Hildinger, and that whatever cash and personal property remained after payment of court costs and expenses of administration be set over to Gena M. Hildinger toward the balance due on her legacy.

At the time of the filing of the petition for final settlement it definitely appeared that after the payment of expenses, inheritance and succession taxes there would be no cash from personal property to add to the Hildinger note and so raise Gena M. Hildinger s bequest to equal one-half of the value of the land.

Gena M. Hildinger and Mary Faye Holland filed written defenses to the petition for final settlement. Their contention, stated generally, would require the executor to apply all cash from personal property to Gena’s bequest to make it equal to one-half the value of the real estate and charge the debts, expenses and taxes against the three bequests.

The controversy was transferred to the district court for determination and it concluded:

“That applying the rules of construction, the Court concludes from the reading of the entire Will, that it was the intent of Laura M. Graves that each of her three children should receive property from her estate of equal value, with the exception of the farm machinery and equipment bequeathed to Harlan L. Graves.

“That Harlan L. Graves should receive the North Half of Section 6, Township 29 South, Range 18 West and the farm machinery and equipment; that Mary Faye Holland should receive the South Half of Section 6, Township 29 South, Range 18 West.

“That Gena M. Hildinger should receive the note of Clay M. Hildinger having a value of $36,600.00 and in addition should receive cash to equalize the value of property received by Harlan L. Graves and Mary Faye Holland.

“That there was property other than the two half sections sufficient to equalize the values in accordance with the intention of the testatrix but not sufficient property remaining after such equalization to pay the debts, taxes, administration expenses and any other just charges against said estate.

“That in order to carry out the intention of the testatrix for equalization, and to apply the deficiency required to pay the debts, taxes, administration expenses and other charges, one-third of such deficiency should be deducted from the money which would otherwise be paid to the said Gena M. Hildinger and one-third should be a charge against the real property devised to Harlan L. Graves and one-third should be a charge against the real property devised to Mary Faye HoEand, and such charges should be declared liens on such property.

“That the said Harlan L. Graves and Mary Faye HoEand should pay into said estate a sufficient amount to satisfy the charges against their respective property and, upon failure to make such contribution, the executor of said estate should be required to take whatever action is necessary to enforce the equalization of the amount due from the said Harlan L. Graves and Mary Faye HoEand.”

The executor has appealed. The basis of his contention is that the intention of the testatrix being clearly and unequivocally expressed in the will the trial court erred in applying the rules of judicial construction and in holding that the bequest to Gena M. Hildinger was a charge against the real property devised to Harlan L. Graves and Mary Faye Holland.

With the preliminary drudgery out of the way we may proceed to discuss the controlling features of this controversy.

We should first give attention to the trial court’s attempt to equalize the bequest to Gena M. Hildinger with the bequest of land to her brother and sister by charging the specific bequests with the payment of debts, succession taxes and administration expenses, leaving the balance of cash to be applied on the bequest to Gena.

We find nothing in either the will or the statutes which supports the action of the court in charging such items against the specific bequests.

Paragraph First of the will directed that all just debts, funeral and testamentary expenses, and all transfer, inheritance or succession taxes shall be paid by the executor. There is no mention of the source of funds from which they shall be paid. The statute controlling the question (K. S. A. 59-1405) provides:

“The property of a decedent, except as provided in sections 19 [59-401] and 21 [59-403], shall be liable for the payment of his debts and other lawful demands against his estate. When a will designates the property to be appropriated for the payment of debts or other items, it shall be applied to such purpose. Unless the will provides otherwise for the payment thereof, the property of the testator, subject to the payment of debts and other items, shall be applied to that purpose in the following order:

“(1) Personal property not disposed of by will;

“(2) real estate not disposed of by will;

“(3) personal property bequeathed to the residuary legatee;

“(4) real estate devised to the residuary devisee;

“(5) property not specifically bequeathed or devised;

“(6) property specifically bequeathed or devised.

“Demonstrative legacies shall be classed as specific legacies to the extent of the payment thereof from the fund or property out of which payment is to be made, and as general legacies upon failure or insufficiency of the fund or property out of which payment was to be made to the extent of such insufficiency. The property of each class shall be exhausted before resorting to that of the next class; and all of one class shall contribute ratably if all the property of that class is not required for the payment of such debts or other items.”

As there was no property falling under the first four orders of payment we look to the fifth order — “property not specifically bequeathed or devised.” When we consider Gena’s bequest we find a “demonstrative legacy” as defined by the statute.

The notes evidencing the purchase price of the lumber yard in the amount of $36,600.00 bequeathed to Gena was a “specific legacy” while any balance necessary to equal one-half the value of the land was to be paid in cash and constituted a “general legacy.”

It necessarily follows that in the absence of sufficient cash left in the estate to satisfy all debts, taxes and demands and to pay cash to Gena to make up the difference between the unpaid notes and one-half the appraised value of the land, the cash which would make up the difference must be appropriated first to the payment of the demands against the estate. The only exception is state inheritance taxes which by other statutes, in the absence of anything in the will to the contrary, are apportioned among the legatees. (In re Estate of West, 203 Kan. 404, 454 P. 2d 462.) It is only to the extent that the cash is insufficient that such other demands are prorated and charged against the specific legacies.

We must conclude that the trial court erred in charging the demands against the estate for debts, expense of administration and federal estate taxes to the specific beneficiaries before exhausting property not specifically bequeathed.

We now come to the chief controversy in this litigation — did the testatrix intend to equalize the legacies of the three children by making the bequest to Gena from the personal property a charge against the two one-half sections of land devised to Harlan and Mary, if necessary?

The north half of a section of land was devised to Harlan by Paragraph Second. We ignore the farm machinery as there is no contention that its value was to be equalized.

The south half of the section of land was devised to Mary by Paragraph Third.

Both devises contained the provision “To Have and To Hold, forever.”

Paragraph Fourth of the will provided for the appointment of three commissioners to appraise the land devised at its true value in money. It must be conceded that this was for the purpose of equalizing the legacies in accordance with Paragraphs Fifth and Sixth of the will, if possible, from the personal property.

Paragraph Fifth of the will designates Gena’s legacy. She is to have “from my personal estate” property or money equal to one-half of the appraised value of the land devised to Harlan and Mary. The notes evidencing the purchase price of the lumber yard were to be set aside for this legacy and if not sufficient, the remainder was to be paid in cash.

Paragraph Sixth provided for cash equalization if the value of the two half sections were not the same.

After a careful examination of all the language of the will we find it to be clear, certain and free of ambiguity. There is nothing to indicate that the testatrix did not use the words she intended to use. Neither is there anything to indicate she did not understand the meaning of the words used. It is clear that the testatrix wanted the legacies of her three children equalized, provided it could be done from her “personal estate.”

The language of the will being clear, definite and unambiguous, we need not, and should not, consider rules of judicial construction to determine the intention of the testatrix. In Johnston v. Gibson, 184 Kan. 109, 334 P. 2d 348, we held:

“Where a court, either trial or appellate, is called upon to determine the force and effect to be given the terms of a will, its first duty is to survey the instrument in its entirety and ascertain whether its language is so indefinite and uncertain as to require the employment of rules of judicial construction to determine its force and effect; and where from an analysis of the entire instrument no ambiguity or uncertainty is to be found in its language, the intention of the testator being clearly and unequivocally expressed, there is no occasion to employ rules of judicial construction and the will must be enforced in accordance with its terms and provisions.” (Syl. 3.)

Our earlier decisions will be found in In re Estate of Reynolds, 173 Kan. 102, 244 P. 2d 234, where we stated:

“This court has long been committed to the rule that there is no necessity for construction of a will and that it is to be enforced in accordance with its terms where, from an analysis of the entire instrument, no ambiguity or uncertainty is to be found in its language. See, e. g., the earlier case of Martin v. Martin, 93 Kan. 714, 145 Pac. 565, which holds:

“‘When there is no ambiguity or uncertainty in the language used in the making of a will, a construction of the will is unnecessary, and it will be enforced in accordance with the provisions thereof.’ (Syl. |2.)

“For other and more recent decisions without attempting to cite all of them, wherein the rule is differently stated but nevertheless adhered to, see Morse v. Henlon, 97 Kan. 399, 155 Pac. 800; National Life Ins. Co. v. Watson, 141 Kan. 903, 44 P. 2d 269; Johnson v. Muller, 149 Kan. 128, 131, 86 P. 2d 569; Zabel v. Stewart, 153 Kan. 272, 276, 109 P. 2d 177; In re Estate of Ellertson, 157 Kan. 492, 496, 142 P. 2d 724; In re Estate of Works, 168 Kan. 539, 541, 213 P. 2d 998.” (p. 104.)

For later decisions see In re Estate of Freshour, 185 Kan. 434, 345 P. 2d 689; In re Estate of Jones, 189 Kan. 34, 366 P. 2d 792; Parsons v. Smith, Trustee, 190 Kan. 569, 376 P. 2d 899; In re Estate of Anderson, 203 Kan. 900, 457 P. 2d 67.

Those wishing to research cases from other states on the subject may see 95 C. J. S., Wills, § 586, p. 716, and 57 Am. Jur., Wills, § 1124, p. 719.

It has been suggested that at the time the will was made, 1955, one-half the value of the land would not have exceeded $36,600.00 and at that time there was ample personal property to equalize the legacies to the three children. It is further suggested that the testatrix did not anticipate the appreciation of land values and therefore the court should equalize the legacies regardless of the plain and unambiguous language of the will. A court could not equalize the legacies without indulging in the most doubtful conjecture such as:

Would the testatrix have left the will the way it was written had she realized the increase in the value of the land? She did not change her will, yet she must have known the value of lands was increasing.

Would the testatrix have given the three children equal shares in the land had she known there would not be sufficient personal property to equalize the legacies? The fact must have been known before her death.

Would the testatrix have made a charge against the land to equalize the legacies had she known the personal property would not be sufficient? Would she have risked the forced sale of the land to strangers in order to equalize the legacies?

These are mere conjectures. There is nothing in the clear and unambiguous language of the will to indicate any such desire on the part of the testatrix.

We would not encourage the suggestion that a court may wander from the actual words of a will into the region of conjecture as to what it is reasonable to suppose the testatrix would have done had she contemplated a certain event happening. A court is not free to roam such unfenced fields of speculation. We refute the notion that any canon of construction entitles a court to indulge in its imagination and go into what the testatrix would have said had she anticipated a changed condition.

A court cannot correct a mistake made by a testatrix unless the mistake appears on the face of the instrument, and it also appears what would have been the will if the mistake had not occurred. The duty of the court is to construe not to construct the will. It is without power to modify the instrument for the purpose of making it conform to the opinion of the individual judge as to what constitutes an equitable distribution of the testator’s property. Neither can it make a conjecture as to what a testatrix would have done had she foreseen the future and then build up a scheme for the purpose of carrying out what it thought would have conformed to the desire of the testatrix.

In Holmes v. Campbell College, 87 Kan. 597, 125 Pac. 25, the court had before it a situation somewhat similar to what we have in the present case. We quote from page 600 of the opinion:

“. . . Mrs. Shaw had capacity to make her will; she believed the specific bequests practically exhausted her property and it was only because of such belief that she allowed the provision to stand giving the residue to the college; if she had known its real value she would have left it to her heirs. The provision can not be stricken from the will, however, merely because it was the result of a mistake of fact on her parí. This would be in effect to reform the will, and the court possesses no such power.

“ ‘Neither the will nor any part of it is affected by any mistake of law or fact which induced the testator to make it, and the courts can not amend or modify it so as to conform to what they imagine the testator would have done but for such mistake. For example, the will can not be denied probate nor any of its provisions limited or enlarged in effect because the testator did not understand their legal effect nor truly appreciate the proportions in which his property would be thereby distributed; nor because he would or might have made a different will.’ (Rood on Wills, § 165.)” (Emphasis supplied.)

The cases from other states follow the rule as here stated.

In In re Gilmour's Estate, 238 N. Y. S. 2d 624, at page 627, it is said:

“In the interpretation of a Will, the intention of the testator, as gathered from the language of the Will, is, of course, controlling. (Bigelow v. Percival, 162 App. Div. 831, 148 N. Y. S. 242). The fact that events happened subsequent to the probate of a Will which were not foreseen by the testator cannot change the meaning of the language used. ‘When the purpose of a testator is reasonably clear by reading his words in their natural and common sense, the courts have not the right to annul or pervert that purpose upon the ground that a consequence of it might not have been thought of or intended by him.’ (Matter of Tamargo, 220 N. Y. 225, 228, 115 N. E. 462, 463) ‘[W]e cannot make a new will, or build up a scheme, for the purpose of carrying out what might be thought was or would be in accordance with his wishes.’ (Tilden v. Green, 130 N. Y. 29, 51, 28 N. E. 880, 884, 14 L. R. A. 33.)” (Emphasis supplied.)

In Hoffman v. McGinnes, 277 F. 2d 598, 602, the federal court, in considering the law of Pennsylvania, stated:

“The rule was recently re-stated in Saunders Estate, 1958, 393 Pa. 527, at page 529, 143 A. 2d 367, at page 368, as follows:

“The testator’s intention is the pole star in the construction of every will and that intention must be ascertained from the language and scheme of his will; it is not what the Court thinks he might or would or should have said in the existing circumstances, or even what the Court thinks he meant to say, but what is the meaning of his words (citing cases).’ (Emphasis supplied.)”

Perhaps rather than attempt a compilation of the various cases supporting the rule it would serve better to cite a publication where the cases are compiled. In Volume 4 of the Bowe-Parker Revision of Page on Wills, § 30.7, pp. 40 to 51, we find the following statement:

“In construing a will, it will be presumed that the testator understood and intended the provisions thereof. As the courts are careful to discover and enforce testator’s intention, but not to make a new will for testator, it follows that they constantly refuse to ascertain testator’s intention except from the words which he used in his will, together with such extrinsic evidence as is admissible. The question always before the mind of the court is not what should testator have meant to do or what words would have been better for testator to use, but what is the reasonable meaning of the words which he has actually used.

“It has been suggested that this principle applies where the will is unambiguous. While the courts may have to go beyond the words of the will if the instrument is ambiguous and invoke other principles of construction, it would seem that the courts must always start with the language of the will.

“In construing a will the court has no power to make a will for the testator or to attempt to improve upon the will which testator actually made. The court cannot begin by inferring testator’s intention and then construe the will so as to give effect to this intention, however probable it may be; nor can it rewrite the will, in whole or in part, to conform to such presumed intention. If testator has omitted to provide for the state of affairs which actually has come to pass, the court cannot make the assumption that testator would probably have had a given intention if he had thought of the state of facts which actually existed, and give effect to such probable intention.

‘. . . The court cannot resort to conjecture as to testator’s intention if no intention can be extracted from the words of the will when construed in accordance with the recognized rules of construction and in the light of the surrounding circumstances, . . .” (Emphasis supplied.)

The numerous cases supporting the above statements will be found noted in the text. The more recent cases will be found in the pocket supplement.

We are forced to conclude that the trial court erroneously applied rules of judicial construction to a will although the language used was clear and unambiguous; speculated as to what the testatrix would have done had she considered the state of affairs that actually came to pass, and construed the will to give effect to such speculation. In doing so the trial court erroneously charged the specific legacies with the payment of debts, administration expenses and other lawful demands, except state inheritance taxes, for the purpose of leaving funds available to apply on the general legacy.

The judgment is reversed with instructions to the trial court to enter judgment in harmony with what is stated in the opinion.

APPROVED BY THE COURT.