In construing wills, the Kansas courts have stated that the intent of the testator is to receive primary consideration and the court "must put itself as nearly as possible in the situation of the testator at the time he made his will and from a consideration of that situation and of all the language used in the entire will, the court must determine the intention the testator had * * *." In Re Jones' Estate, 189 Kan. 34, 366 P.2d 792, 794; Beall v. Hardie, 177 Kan. 353, 279 P.2d 276. In considering joint and mutual wills some of the Kansas decisions have held that the survivor took a life estate with varying degrees of power to dispose of the estate property.
Such a provision could only have been reached by agreement of the parties. ( In re Estate of Tompkins, 195 Kan. 467, 407 P.2d 545; Beall v. Hardie, 177 Kan. 353, 279 P.2d 276.) Bertha survived Newell, and thereby performed her part of the contract, but Newell breached their agreement when he executed his subsequent will in October, 1966.
In the construction of a will a court must ascertain the intent of the testator, as revealed by all the language used by the testator, not in isolated words, clauses or paragraphs, but in the entire instrument. All provisions of a will must be considered and construed together. ( In re Estate of Weidman, supra; Beall v. Hardie, 177 Kan. 353, 279 P.2d 276; In re Estate of Randall, 185 Kan. 92, 98, 340 P.2d 885; Commercial National Bank v. Martin, 185 Kan. 116, 120, 340 P.2d 899; In re Estate of Freshour, 185 Kan. 434, 345 P.2d 689; In re Estate of Kelly, 185 Kan. 752, 347 P.2d 428; In re Estate of Cribbs, 180 Kan. 840, 308 P.2d 111; In re Estate of Roberts, 190 Kan. 248, 373 P.2d 165; Parsons v. Smith, Trustee, 190 Kan. 569, 376 P.2d 899.) Where an estate is created by will it will be deemed to be an estate in fee simple, if a lesser estate is not clearly indicated, and a testator desiring to give a qualified estate instead of an absolute one must employ language clearly importing an intention to do so.
In construing a will, the court must put itself as nearly as possible in the situation of the testator when he made the will and from a consideration of that situation and from the language used in every part of the will, determine as best it can the purpose of the testator and the intentions he endeavored to convey by the language used. ( Beall v. Hardie, 177 Kan. 353, 279 P.2d 276; In re Estate of Weidman, 181 Kan. 718, 314 P.2d 327; In re Estate of Freshour, supra; and authorities cited in the foregoing cases.) The appellee relies upon Holt v. Wilson, 82 Kan. 268, 108 P. 87, which held:
"Proper resolution of the issue raised by the parties depends on the construction to be given to the controlling language found in the will. We are mindful of the oft-stated rule which requires the court in construing the provisions of a will to place itself in the shoes of the testator at the time he made the will and determine as best it can the purpose and intentions he endeavored to convey by the language used. (Wallace v. Magie, 214 Kan. 481, 522 P.2d 989; Beall v. Hardie, 177 Kan.353, 279 P.2d 276; Baldwin v. Hambleton, 196 Kan. 353, 411 P.2d 626; Parsons v. Smith, Trustee, 190 Kan. 569, 376 P.2d 899.) The tools in aid of our search for the testator's intention are the language contained within the four corners of the document, plus any extraneous circumstances surrounding its execution which assist in understanding his true intent and purpose.
In other words, the landowner believes the deed contained a restrictive covenant running with the land, promising that KDOT would never restrict the easements reserved in the contract. See Beall v. Hardie, 177 Kan. 353, 356, 279 P.2d 276 (1955) (defining a covenant as a contractual promise.) We disagree with the landowner's interpretation of the contract.
We are not faced with a situation where the will gives authority to the life tenant to dispose of property which may result in diminution of the shares to be received by remaindermen. See Theimer v. Crawford, 224 Kan. 586, 582 P.2d 1151 (1978); Beall v. Hardie, 177 Kan. 353, 279 P.2d 276 (1955); Fourth Nat'l Bank v. First Presbyterian Church, 134 Kan. 643, 7 P.2d 81 (1932). Until the accident and hospitalization of Minnie Kreie in April, 1982, there was clearly more than sufficient income to properly care for Mrs. Kreie. Her disposal of excess income was permitted by the 1973 trust provisions and there is no indication that the gift of excess income was in any way designed to defeat the terms of the will which she and her husband had entered into.
Proper resolution of the issue raised by the parties depends on the construction to be given to the controlling language found in the will. We are mindful of the oft-stated rule which requires the court in construing the provisions of a will to place itself in the shoes of the testator at the time he made the will and determine as best it can the purpose and intentions he endeavored to convey by the language used. ( Wallace v. Magie, 214 Kan. 481, 522 P.2d 989; Beall v. Hardie, 177 Kan. 353, 279 P.2d 276; Baldwin v. Hambleton, 196 Kan. 353, 411 P.2d 626; Parsons v. Smith, Trustee, 190 Kan. 569, 376 P.2d 899.) The tools in aid of our search for the testator's intention are the language contained within the four corners of the document, plus any extraneous circumstances surrounding its execution which assist in understanding his true intent and purpose. ( Parsons v. Smith, Trustee, supra.
In other cases, where specific reference to a prior contract was lacking, wills have been construed as contractual on the basis of specific provisions or terms, one of the common denominators usually being a provision for the disposition of property after the death of the survivor. See, In re Estate of Adkins, 161 Kan. 239, 167 P.2d 618; Beall v. Hardie, 177 Kan. 353, 279 P.2d 276; In re Estate of Weidman, 181 Kan. 718, 314 P.2d 327.) Such a provision was found among the provisions of the will in the Lewis case.
In the case of In re Estate of Tompkins, supra, a joint and mutual will was held to be contractual on its face because the language used clearly indicated the elements establishing the fact of an agreement by the testators as to the terms and provisions of their will and the intention that they each be bound. Although extrinsic evidence, tending to prove a contract, was received in Tompkins it was described as unnecessary for the reason the will was contractual on its face. As in Beall v. Hardie, 177 Kan. 353, 279 P.2d 276, the language used in the will supplied the evidence necessary to establish that the will was the product of a contract. While disposing language in the instant will is quite similar to that used in the Tompkins will, contractual elements are not so clearly discernible, since an awkward use of the words, in particular "my," is found in the Wade will, resulting from the unskilled efforts of the layman (Jacob) in attempting to reflect the expressions of the testators in the preprinted will form. Nevertheless, it cannot be said that any expression of the will is contrary to the agreement of the testators, as it was found by the trial court.