Williams v. Williams

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NOT DESIGNATED FOR PUBLICATION

No. 115,175

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

TAMMIE S. WILLIAMS,
Appellee,

v.

PAULA M. WILLIAMS,
Appellant.


MEMORANDUM OPINION

Appeal from Lyon District Court; W. LEE FOWLER, judge. Opinion filed September 16, 2016.
Affirmed.

Rodney H. Symmonds, of Symmonds & Symmonds, LLC, of Emporia, for appellant.

Monte L. Miller, of Miller & Miller, Chtd., of Emporia, for appellee.

Before SCHROEDER, P.J., GREEN, J., and STUTZMAN, S.J.

Per Curiam: Robert Williams and Scott Williams owned real estate as joint tenants
with rights of survivorship. Robert died and was survived by his wife, Paula M. Williams.
Then, Scott died and was survived by his wife and sole heir, Tammie S. Williams.
Tammie filed an action to quiet title to the real estate in question. Paula protested,
resulting in Tammie moving for summary judgment on her quiet title action. The trial
court granted Tammie's summary judgment motion. Paula appeals this ruling, arguing
that she is entitled to one-half of Robert's interest in the real estate under K.S.A. 59-505.
Finding merit in Tammie's action, we affirm the judgment of the trial court.

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On May 22, 1964, O. L. Williams conveyed over 100 acres of land to his son,
Robert, and Robert's son, Scott. According to the warranty deed conveying the real estate,
Robert and Scott owned the land "as joint tenants with the right of survivorship and not
as tenants in common." Robert and Scott recorded this deed on October 18, 1966.

On September 13, 2000, Robert died. Paula, Robert's wife, survived him. There
was no probate of Robert's estate.

On April 1, 2014, Scott died. Tammie, Scott's wife, survived him. During Scott's
probate proceedings, Paula asserted that she had an interest in the real estate that Robert
and Scott had formerly owned together as joint tenants. The trial court's decree of descent
ruled that Tammie owned 100 percent of the real estate.

On April 30, 2015, Tammie petitioned for quiet title to the disputed real estate.
Paula responded that Tammie was not entitled to quiet title, counterclaiming: (1) that she
was entitled to one-half of Robert's interest in the real estate as his surviving spouse
under K.S.A. 59-505; and (2) that she was entitled to several items of personal property
located on the real estate. In response to Paula's counterclaims, Tammie argued: (1) that
the laws of joint tenancy, not probate, were applicable in this case; (2) that Paula's
argument should be barred "under the theories of laches, estoppel, statute of frauds and
statute of limitations" given that Paula had not taken any action since Robert's death in
2000; and (3) that Paula was entitled to some, but not all, items of personal property
located on the real estate.

Tammie then moved for partial summary judgment, asserting that she was entitled
to quiet title to the real estate. Citing Eastman v. Mendrick, 218 Kan. 78, 542 P.2d 347
(1975), Tammie argued that upon a joint tenant's death, that joint tenant's share in
property descends in its entirety to the surviving joint tenants; thus, Paula had no interest
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in the disputed real estate because the entirety of Robert's interest had descended to Scott
upon Robert's death.

Paula responded by also moving for partial summary judgment. Again, Paula
argued that K.S.A. 59-505 required that she receive one-half of Robert's interest in the
property, that is, 25 percent of the total interest in the real estate.

The trial court held a hearing on Tammie's and Paula's respective motions for
summary judgment. Tammie reargued that Paula had no rights because Scott had a fee
simple interest in the property following Robert's death. Paula reargued that she was
entitled to one-half of Robert's interest in the real estate under K.S.A. 59-505.

The trial court ultimately granted Tammie's motion for partial summary judgment.
First, the trial court found that the following facts were uncontroverted: (1) that Paula is
the surviving spouse of Robert and that Tammie is the surviving spouse and sole heir of
Scott; (2) that Paula has been a resident of Kansas since before the real estate was
conveyed to Robert and Scott; (3) that O. L. conveyed the real estate to Robert and Scott
as joint tenants with rights of survivorship; (4) that Paula was aware of this conveyance;
(5) that upon Robert's death, Scott was the sole surviving tenant; (6) that Paula never
consented in writing, by will, by election, or by law, "to take under a will to the
disposition of the real estate"; and (7) that the real estate has never been sold on
execution, judicial sale, or by any other legal proceeding. Based on those uncontroverted
facts, the trial court ruled that the title of the real estate should be vested solely in
Tammie. The trial court cited Eastman and Osborn v. Osborn, 102 Kan. 890, 172 P. 23
(1918), for the proposition that when land is held by tenants with rights of survivorship, a
deceased joint tenant's interest in real estate extinguishes upon that tenant's death with the
entirety of the deceased joint tenant's interest passing to the surviving joint tenants in fee
simple.

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Paula timely appealed. This court issued a show cause order for lack of
jurisdiction since the trial court's order did not involve the personal property in dispute.
Paula responded that although the trial court's summary judgment ruling was not a final
order regarding the personal property, this court had jurisdiction over the trial court's
ruling regarding the real estate under K.S.A. 2015 Supp. 60-2102(a)(3). K.S.A. 2015
Supp. 60-2102(a)(3) states that "the appellate jurisdiction of the court of appeals may be
invoked by appeal as a matter of right from: . . . an order involving . . . the title to real
estate." This court then retained jurisdiction under this provision.

Did the Trial Court Err by Granting Tammie's Summary Judgment Motion?

As she did before the trial court, Paula argues that she is entitled to one-half of
Robert's interest in the real estate under K.S.A. 59-505. Paula argues that the trial court
erred by relying on our Supreme Court's decisions in Eastman and Osborn because those
cases are distinguishable from this case. Moreover, Paula argues that this court should
rely on our Supreme Court's holdings in Ackers v. First Nat. Bank of Topeka, 192 Kan.
319, 387 P.2d 840 (1963), decision clarified on denial of reh., 192 Kan. 471, 389 P.2d 1
(1964), and In re William's Estate, 158 Kan. 734, 150 P.2d 336, adhered to on reh'g 159
Kan. 232, 153 P.2d 906 (1944), because these cases discussed the rule that a surviving
spouse is entitled to one-half of the deceased spouse's interest in real estate.

Tammie responds that since Robert and Scott owned the real estate as joint tenants
with rights of survivorship, the probate laws are irrelevant. Thus, according to Tammie,
Paula's arguments that she is entitled to one-half of Robert's interest in the real estate in
question under K.S.A. 59-505 fail.

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Standard of Review

An appellate court uses the following standard when reviewing summary
judgment motions:

"'Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law. The trial court is required to resolve all facts and inferences which may
reasonably be drawn from the evidence in favor of the party against whom the ruling is
sought. When opposing a motion for summary judgment, an adverse party must come
forward with evidence to establish a dispute as to a material fact. In order to preclude
summary judgment, the facts subject to the dispute must be material to the conclusive
issues in the case. On appeal, we apply the same rules and where we find reasonable
minds could differ as to the conclusions drawn from the evidence, summary judgment
must be denied.'" Bank v. Par., 298 Kan. 755, 759, 317 P.3d 750 (2014) (quoting O'Brien
v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 330, 277 P.3d 1062 [2012]).

Applicable Law

K.S.A. 59-505 states:

"Except as provided further, the surviving spouse shall be entitled to receive one-
half of all real estate of which the decedent at any time during the marriage was seized or
possessed and to the disposition whereof the survivor shall not have consented in writing,
or by a will, or by an election as provided by law to take under a will, except such real
estate as has been sold on execution or judicial sale, or taken by other legal proceeding.
The surviving spouse shall not be entitled to any interest under the provisions of this
section in any real estate of which such decedent in such decedent's lifetime made a
conveyance, when such spouse at the time of the conveyance was not a resident of this
state and never had been during the existence of the marriage relation. The spouse's
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entitlement under this section shall be included as part of the surviving spouse's property
under K.S.A. 59-6a207, and amendments thereto."

"The doctrine of joint tenancy and its application to personal as well as to real
property has been recognized in this state for many years." Eastman, 218 Kan. at 81. Our
Supreme Court has explained the importance of the right of survivorship as follows:

"'Survivorship is the distinctive characteristic and the grand incidence of an estate
in joint tenancy. On the death of a joint tenant the property descends to the survivor or
survivors and the right of survivorship terminates only when the entire estate, without the
tenants having disposed of their title or otherwise terminating the tenancy, comes into the
hands of the last survivor.'" Eastman, 218 Kan. at 82 (quoting Johnson v. Capitol Federal
Savings & Loan Assoc., 215 Kan. 286, Syl. ¶ 3, 524 P.2d 1127 [1974]).

Moreover, "'[p]roperty held by a decedent and another in joint tenancy passes to the
survivor, and the property is not part of decedent's probate estate. [Citation omitted.]'" In
re Estate of Roloff, 36 Kan. App. 2d 684, 694, 143 P.3d 406 (2006) (quoting In re Estate
of Harrison, 25 Kan. App. 2d 661, 669, 967 P.2d 1091 [1998], rev. denied 267 Kan. 885
[1999]).

In Eastman, the administrator of Margaret Eastman's estate sued to recover one-
half of Margaret's interest in savings accounts that Margaret and her siblings, the
defendants, had held together as joint tenants with rights of survivorship. The
administrator argued that the defendants conspired to get Margaret to change the names
on her savings accounts to include them as joint tenants with rights of survivorship
instead of Margaret's husband. Our Supreme Court disagreed, holding that there was no
evidence of conspiracy. Eastman, 218 Kan. at 83. Our Supreme Court further held that
because

"under a joint tenancy agreement, . . . a surviving joint tenant of personal property does
not take as a new acquisition from the deceased joint tenant under the laws of descent and
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distribution, but under the conveyance or contracts by which the joint tenancy was
created, his estate merely being freed from the participation of the other." Eastman, 218
Kan. at 83-84.

In route to this holding, our Supreme Court explicitly rejected the administrator's
argument that K.S.A. 59-602 of the probate code defeated a contract for joint tenancy
with rights of survivorship. Eastman, 218 Kan. at 83-84.

In Osborn, a widow sued to recover real estate passed to her stepsons upon the
death of her husband, William. William had recorded the deed to the disputed real estate
with language: "William F. Osborn, and at his death to his sons." The widow argued that
her stepsons could not claim title to the real estate because G.S. 1915, 3831, the
predecessor statute to K.S.A. 59-505, required that she receive one-half of William's
interest in the real estate. Osborn, 102 Kan. at 891-92. Our Supreme Court rejected this
argument, explaining:

"The transactions disclosed by the deeds were between grantors and grantees. The whole
estate passed from the grantors. Instead of taking an equitable estate, William F. Osborn
took a legal estate, and instead of taking the whole estate, he took a life estate. The
remainders in fee vested in his sons. The character and extent of the estate which he took
was not affected in the slightest degree by the fact that he had a wife who might outlive
him. No equities remained to him, because the transactions were fully executed and he
received what he desired. The estate which he took did not survive him. He had no
interest, legal or equitable, in the remainders. After his death the whole estate in fee
simple vested in his sons, and there was nothing to set apart to his widow. [G.S. 1915,
3831] refers to legal or equitable estates of the husband which are capable of inheritance,
and does not apply to interests in land which are extinguished by his death." Osborn, 102
Kan. at 892.

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Analysis

Neither party disputes the factual findings made by the trial court. Thus, this
court's review is limited to the question of whether Tammie was entitled to judgment as a
matter of law. Paula's arguments regarding why Tammie is not entitled to judgment as a
matter of law can be divided into two categories: (1) that the trial court's reliance on
Eastman and Osborn was misplaced; and (2) that our Supreme Court has emphasized the
importance of a surviving spouse's one-half interest of the deceased spouse's real estate.
Nevertheless, both of these arguments fail.

First, Paula's arguments regarding how Eastman and Osborn are distinguishable
are unpersuasive. While the underlying facts of Eastman and Osborn differ from this
case, the rules in Eastman and Osborn are still applicable. Paula implies that the Eastman
court merely found that married people can dispose of personal property without
reference to their spouse. She also implies that the Eastman court referenced that a
surviving joint tenant does not take through a new acquisition under intestate succession
laws but through the original contract in passing. Yet, as already discussed, the Eastman
court very clearly held that the surviving joint tenant, of either personal or real property,
takes the entirety of the interest in fee simple automatically upon the deceased joint
tenant's death. Eastman, 218 Kan. at 83-84. As a result, in this case as in Eastman, the
disputed property never entered into the deceased joint tenant's probate estate.

Moreover, the Eastman court also held that K.S.A. 59-602, the probate provision
that limits a deceased spouse's ability to deprive the surviving spouse of real estate
through a will, did not trump contractual provisions establishing joint tenancy with rights
of survivorship. Eastman, 218 Kan. at 83-84. Accordingly, the Eastman holding applies
to this case, meaning that K.S.A. 59-505, the provision regarding a surviving spouse's
rights to real estate when the deceased spouse dies intestate, does not trump contractual
provisions establishing joint tenancy with rights of survivorship.
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Although Osborn did not involve joint tenancy, it did involve whether the
deceased spouse could contract to give real estate to his son through a deed, depriving his
surviving spouse from taking one-half of the interest in the real estate under a provision
substantively identical to K.S.A. 59-505. Osborn, 102 Kan. at 891-92. As a result,
Osborn establishes that a surviving spouse cannot claim one-half interest in the deceased
spouse's real estate under K.S.A. 59-505 when a separate contract states that the real
estate will transfer automatically upon death. Here, a separate contract stated that Robert
and Scott held the real estate as joint tenants with rights of survivorship. The Osborn
holding, then, can be applied to this case. As a result, Paula was not entitled to one-half
interest in the real estate under K.S.A. 59-505 because Robert's interest passed
automatically under the real estate deed to Scott upon his death.

Furthermore, given that both Eastman and Osborn are older cases, we point out
that in the 2006 case of In re Estate of Roloff, this court explained the transfer of property
interests held under a joint tenancy with rights of survivorship as follows:

"When a joint tenant dies, title to the property under the joint tenancy deed immediately
vests in fee simple to the surviving joint tenants. [Citation omitted.] The deceased joint
owner does not die seized of any heritable interest in the property under the joint tenancy
deed that could be distributed under the terms of the deceased joint tenant's will. Upon
the death of a joint tenant, no title passes to such joint tenant's heirs. Instead, fee simple
title vests in the surviving joint tenants under the deed. As a result, a court does not have
authority to distribute the joint tenancy property. [Citation omitted.]" 36 Kan. App. 2d at
695.

Consequently, In re Estate of Roloff underscores the point that Robert's interest never
became part of his probate estate, meaning Paula cannot claim one-half of Robert's
former interest in the real estate under K.S.A. 59-505.

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Second, Paula's reliance on Ackers and In re William's Estate is misplaced. Neither
of those cases involved joint tenancies. Ackers involved a surviving spouse's right to real
estate, where the surviving spouse would have had an interest in the property at issue but
for the fact the deceased spouse had conveyed the property to another person. See 192
Kan. at 322-23. In re William's Estate involved the validity of the deceased's will. 158
Kan. at 737-38. In her brief, Paula cites the following language from In re William's
Estate as evidence that she was entitled to one-half of Robert's interest in the land:

"A wife residing in this state is entitled, upon the death of her husband, to the half of all
the real estate owned by him during the marriage, which has not been sold on judicial
sale, and is not necessary for the payment of debts, and of which the wife has made no
conveyance, so that there is an inchoate interest to the extent of one-half given to the wife
in the real estate of the husband." 158 Kan. at 738.

Yet, this language was included in In re William's Estate because plaintiffs argued that
one of the witnesses to the deceased's will was actually a quasi-beneficiary of the will
since the witness' wife was a named beneficiary in the will. 158 Kan. at 737-38. Thus,
neither Ackers nor In re William's Estate diminishes the rules adopted and followed in
Osborn, Eastman, and In re Estate of Roloff. Additionally, the sections Paula quotes in
Ackers and In re William's Estate merely contain language quoting and paraphrasing
older versions of K.S.A. 59-505. See Ackers, 192 Kan. at 326-27; and In re William's
Estate, 158 Kan. at 738.

Paula introduces a red herring with the older quoted versions of K.S.A. 59-505
from Ackers and In re William's Estate. The older version of K.S.A. 59-505 is irrelevant
to the question before us. The question at issue is: What effect does real property held in
joint tenancy with the rights of survivorship have on the disposition of this property? To
quote the older versions of K.S.A. 59-505 is to introduce an extraneous matter that
ignores the question at hand.

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In summary, Robert, as the deceased joint tenant, did not die with any heritable
interest under the joint tenancy that could be distributed through his probate estate.
Instead, upon Robert's death, his interest passed to Scott in fee simple. Then, upon Scott's
death, his interest passed to Tammie as his sole heir. Accordingly, Paula does not have
any rights to the real estate in question. As a result, we affirm the trial court order
granting partial summary judgment.

Affirmed.