## Facts

- B. T. Freeman died in 1933, leaving a will disposing of a farm.
- Freeman had 11 children. Two daughters, Miranda Catherine Freeman and Alice Freeman, received life estates in the farm; each life estate would end if the life tenant married.
- The will provided that, after both life estates ended, the farm would pass to Freeman’s children in equal shares.
- The will included substitution provisions for any child who died before the termination of both life estates:
  - If that child left issue who were living when the life estates ended, the child’s share would pass to that child’s then-living issue.
  - If that child died before the life estates ended and left no issue, the child’s share would pass to Freeman’s “children then living.”
- Miranda and Alice both died without issue, and the life estates ended upon their deaths.
- At the time the life estates ended, only one of Freeman’s children—Delilah Stackley—was still alive.
- During the period of the life estates, three of Freeman’s children died without issue, and five of Freeman’s children died leaving issue who survived the termination of the life estates.
- Freeman descendants (including great-grandchildren) brought a partition action and sought a judicial determination of ownership interests; the matter was submitted on stipulated facts.
- Stackley argued that when each child died without issue, that child’s share immediately passed (and vested) in Freeman’s children who were alive at the time of that death—an interpretation that would route the three childless shares ultimately to her as the only child alive when the life estates ended.
- The plaintiffs contended that “children then living” referred to the time the life estates ended and that the shares of the children who died without issue should pass not only to any surviving child, but also (by representation) to the issue of Freeman’s other deceased children.
- The trial court agreed with the plaintiffs and allocated the disputed shares to the surviving child and, per stirpes, to the issue of Freeman’s deceased children. Stackley appealed.

## Issues

1. In Freeman’s will, does “children then living” (triggered when a child dies before the end of the life estates without issue) refer to Freeman’s children living at the time of the child’s death, or to those living at the termination of both life estates?
2. If the relevant time is the termination of both life estates, may the distribution include, per stirpes, the issue of Freeman’s deceased children consistent with the will’s substitution scheme?

## Decision

- The Kansas Court of Appeals affirmed.
- The court upheld the trial court’s construction that “children then living” is determined at the termination of both life estates—the time the remainder becomes possessory.
- The court approved the resulting allocation under which the shares of the children who died without issue were distributed to the surviving child and, per stirpes, to the issue of Freeman’s deceased children.

## Legal Principles

- The goal of will construction is to ascertain and carry out the testator’s intent from the will as a whole, giving effect to all provisions if reasonably possible.
- When the will’s intent is expressed clearly, courts need not apply technical rules of construction to reach a different result.
- In a testamentary plan that postpones distribution of a remainder until the end of life estates and provides substitute takers if a remainderman dies before that time, the membership of the described class can be measured at the common distribution date unless the will fixes an earlier time.
- Where the will provides for descendants of deceased children to take in place of their parent, a construction that permits representation by issue may be favored over one that would route most or all of the property to a single surviving child contrary to the overall scheme.

## Conclusion

Cox v. Forristall affirmed a decree in a partition action construing B. T. Freeman’s will so that “children then living,” used to redirect the shares of children who died during the life estates without issue, referred to the termination of both life estates rather than each child’s earlier death; as a result, those shares were distributed to Freeman’s surviving child and, per stirpes, to the issue of Freeman’s other deceased children.


Cox v. Forristall, 640 P.2d 878 (1982)