## Facts

- Patricia J. Stroble was married to Charles R. Stroble; after Patricia’s mother, Mary E. Klingele, moved into their home in 1975, Charles began living separately from Patricia.
- On March 17, 1978, Patricia executed a will giving her entire estate to Mary, conditioned on Mary surviving Patricia by 30 days; the will expressly excluded Charles and contained no residuary clause.
- On November 24, 1978, Patricia and Mary died the same day from carbon monoxide poisoning in an attached garage; there was no evidence establishing the order of deaths.
- Patricia’s will was admitted to probate; Mary’s heirs claimed Patricia’s estate under Kansas’s anti-lapse statute, K.S.A. 59-615.
- Charles elected to take by intestate succession as Patricia’s surviving spouse and sole heir at law under then-current Kansas intestacy rules.
- The parties stipulated the will was unambiguous and that extrinsic evidence was inadmissible.

## Issues

1. Whether K.S.A. 59-615 (anti-lapse) applies when a will makes a gift subject to an express survivorship condition (survival by 30 days).
2. If the condition fails and the will has no residuary clause, whether the property passes by intestacy despite an express clause disinheriting the heir at law.

## Decision

- The Court of Appeals held the anti-lapse statute did not apply because the will’s express 30-day survivorship requirement controlled.
- Because Mary could not be shown to have survived Patricia by 30 days, the sole bequest to Mary lapsed (failed to vest).
- With no residuary clause, the entire estate passed by intestate succession to Charles.
- The court reversed the district court’s partial distribution to Mary’s heirs and remanded for distribution consistent with intestacy.

## Legal Principles

- A devise to an individual beneficiary generally lapses if the beneficiary dies before the testator, unless the will shows a contrary intent or a statute applies.
- Under K.S.A. 59-615, express provisions in a will may render the anti-lapse statute inapplicable.
- Words of survivorship (including a specified survival period) create a condition precedent; if it is not satisfied, the gift does not vest and anti-lapse does not substitute descendants.
- If a bequest lapses and the will contains no residuary clause, the undisposed property passes under intestate succession.
- A testator cannot disinherit heirs by exclusionary language alone; the estate must be effectively disposed of to other takers.

## Conclusion

Because the will conditioned the mother’s gift on surviving the testator by 30 days and that condition could not be satisfied, the anti-lapse statute did not preserve the bequest for the mother’s heirs; the lapsed gift, with no residuary clause, left the entire estate to pass by intestacy to the surviving spouse notwithstanding the will’s attempted disinheritance.


In re Estate of Stroble, 636 P.2d 236 (Kan. Ct. App. 1981)