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RUSSELL v. ESTATE OF RUSSELL

April 5, 1975.

DANIEL ALAN RUSSELL and KAY MARLENE RUSSELL, Petitioners-Appellants,
v.
In the Matter of the Estate of Milton C. Russell, Deceased, MICHAEL D. WILSON, Administrator de bonis non cum testamento annexo, and CARL N. KELLY, Guardian ad Litem for JOHN JACOB RUSSELL, a minor, Appellees.



The opinion of the court was delivered by

This is an action to construe a will. The facts in this case are not in dispute and are as follows: Milton C. Russell died at Wichita, April 28, 1972. His Last Will and Testament dated May 14, 1969, was admitted to probate. At the time the deceased executed his will he was married to Ina Clare Russell; they were divorced on February 20, 1970. The will dated May 14, 1969, was not revoked by the testator prior to his death. Ina Clare

[216 Kan. 731]

      Russell survived the testator. The decedent was a single man at the time of his death and his heirs at law were the appellants, Daniel Alan Russell and Kay Marlene Russell, his natural children, and John Jacob Russell, his adopted child, who is the appellee on this appeal represented by his guardian ad litem, Carl N. Kelly. The appellants, Daniel Alan Russell and Kay Marlene Russell, filed their petition to construe the will in the probate court of Sedgwick County. The case was certified to the district court for trial.

The will contained two paragraphs which are involved in this case. They are as follows:
"SECOND: I hereby give, devise and bequeath all my estate, real, personal or mixed, whatsoever and wheresoever situated, which I own or to which I may be entitled, or which I may have power to dispose of at my death, to my wife, Ina Clare Russell, in fee simple absolute.
"THIRD: In the event my wife, Ina Clare Russell, should predecease me or in the event that we should both be taken in a common disaster, I hereby devise the sum of $1.00 to my son, Daniel Alan Russell, the sum of $1.00 to my daughter, Kay Marlene Russell, and all of the rest, residue and remainder of my estate, whatsoever and wheresoever situated, which I own or to which I may be entitled or which I may have power to dispose of at my death, I hereby give, devise and bequeath to my son, John Jacob Russell."
The case was tried in the district court upon a written stipulation of fact which incorporated the statement of facts set forth above. The issue of law presented to and determined by the trial court involves the construction of these will provisions in light of K.S.A. 59-610 which provides in part as follows:
"59-610. Revocation by marriage, birth or adoption; divorce. . . . If after making a will the testator is divorced, all provisions in such will in favor of the testator's spouse so divorced are thereby revoked."
The trial court found that this provision of K.S.A. 59-610 revoked and nullified the second paragraph of the will and barred Ina Clare Russell from taking any of the deceased's property under that paragraph. On this finding the parties are not in dispute. The trial court further held that 59-610 also had the effect of taking out or nullifying the condition contained at the beginning of paragraph three which stated as follows:
"In the event my wife, Ina Clare Russell, should predecease me or in the event that we should both be taken in a common disaster, . . ."
In addition the trial court held that the estate of the decedent passed by virtue of the remaining provisions of the third paragraph and should be distributed as follows: $1.00 to his son, Daniel Alan Russell; $1.00 to his daughter, Kay Marlene Russell; and all the

[216 Kan. 732]

      rest, residue and remainder of his estate to his son, John Jacob Russell. The ruling of the trial court gave effect to the third paragraph of the will and construed the will as though Ina Clare Russell, the divorced survivor, had predeceased the testator. The trial court entered judgment awarding the appellants, Daniel Alan Russell and Kay Marlene Russell, the amount of $1.00 each, and the remainder of the estate was awarded to John Jacob Russell. Daniel Alan Russell and Kay Marlene Russell have brought a timely appeal to this court.

  The appellants raise three points of error which in their essence present one issue to be determined: How should the provisions of paragraph three of the will be construed in view of the subsequent divorce and in light of the provisions of K.S.A. 59-610?

  The appellants contend that K.S.A. 59-610 had the effect of revoking only those provisions of the will in favor of the surviving divorced spouse as contained in the second paragraph and that the statute should not be construed to have the effect of revoking any portion of paragraph three which contained no provisions in favor of the divorced spouse. The specific bequest to the children under the third paragraph was to take effect only on the condition that Ina Clare Russell should predecease the testator or in the event they should both be taken in a common disaster. Appellants maintain that since Ina Clare Russell survived the testator the condition precedent did not occur, and therefore the bequest to the children was nullified. There being no provisions in the will for disposing of the testator's estate under the factual circumstances, the entire estate of the testator passed by intestate succession, 1/3 to each of the appellants and 1/3 to the appellee, John Jacob Russell. Stated simply, the appellants want the will to be construed strictly in accordance with the language contained in the third paragraph.

  The appellee, John Jacob Russell, takes the position that in construing a will a court must determine the intention of the testator from an examination of the entire instrument. Here appellee maintains that the will is clear and unambiguous and it states exactly what the testator intended. The testator intended that all property which did not pass to his wife, would pass to his son, John Jacob Russell, except ...


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