In re Estate of Taylor

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 120,033

In the Matter of the Estate of THELMA J. TAYLOR.

SYLLABUS BY THE COURT

1.
When interpreting a statute, the fundamental rule to which all others are
subordinate is that the intent of the Legislature governs if that intent can be ascertained.
When a statute's language is plain and unambiguous, there is no need to resort to
statutory construction.

2.
As part of the Kansas Probate Code, K.S.A. 59-1704 provides: "If any person
embezzles or converts to his or her own use any of the personal property of a decedent or
conservatee, such person shall be liable for double the value of the property so embezzled
or converted."

3.
There is nothing in K.S.A. 59-1704 limiting its application to exclude individuals
who were not court-appointed fiduciaries when the decedent's funds were taken before a
probate proceeding began.

Review of the judgment of the Court of Appeals in an unpublished opinion filed October 18,
2019. Appeal from Atchison District Court; ROBERT J. BEDNAR, judge. Opinion filed January 22, 2021.
Judgment of the Court of Appeals affirming in part and reversing in part the district court and remanding
the case with directions is reversed on the issue subject to review. Judgment of the district court is
affirmed on the issue subject to review.

John W. Fresh, of Farris & Fresh Law Office, of Atchison, argued the cause and was on the brief
for appellant Laura Kelly.

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 Patrick E. Henderson, of Henderson Law Office, of Atchison, argued the cause and was on the
briefs for appellee Boys and Girls Club.

The opinion of the court was delivered by

BILES, J.: The Boys and Girls Club of Atchison is the sole beneficiary of the
Estate of Thelma J. Taylor. The Club objected to the executor's proposed distribution of
assets, alleging the executor converted estate property. The district court agreed
conversion occurred and ordered the executor to repay double the converted property's
value as provided by K.S.A. 59-1704. A Court of Appeals panel unanimously upheld the
conversion finding but split on whether the executor owed the double penalty. The
majority held the statute did not apply because the property was taken before the executor
was appointed by the court to administer the estate. In re Estate of Taylor, No. 120,033,
2019 WL 5275029, at *8 (Kan. App. 2019) (unpublished opinion). The Club seeks our
review to resolve the disagreement over how to interpret K.S.A. 59-1704.

We affirm the district court's order imposing the double penalty. The statute's plain
language does not limit its application as the panel majority held.

FACTUAL AND PROCEDURAL BACKGROUND

Thelma J. Taylor died testate on November 18, 2015. Her will expressed an intent
that she would prepare a separate writing bequeathing personal property to later named
individuals, but no writing was located. The will also directed that Taylor's executor
"shall have absolute discretion to distribute any personal property not disposed of" by the
separate writing, "or to sell all remaining property and add to the residue of my estate
which shall then be paid in [its] entirety to the Boys and Girls Club of Atchison, Kansas."
The will nominated Laura Kelly as executor.

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 Kelly filed a petition to admit the will to probate and for informal administration
of Taylor's estate. The petition alleged the estate assets comprised household furnishings
valued at $1,000 and $8,300 in life insurance proceeds. The district court granted the
petition for informal administration and granted Kelly letters testamentary.

On the Club's motion, the court ordered a supplemental inventory. That inventory
valued the assets subject to probate at just over $12,000. It also detailed "nonprobate
assets" consisting of two "jointly owned" items: a checking account containing $150 and
$11,000 cash in a safe deposit box. The supplemental inventory described the box's
contents as "[j]ointly owned with Laura Kelly as joint tenants with the right of
survivorship."

Kelly petitioned for final settlement, proposing to pay the Club $469.58 as the
sole, residual beneficiary. This would have been the amount left after paying debts and
expenses of more than $9,500, including Kelly's attorney fees and executor fees. The
Club objected. It alleged Kelly converted estate assets, including the cash in the safe
deposit box. It demanded Kelly be held liable under K.S.A. 59-1704 for double the value
of any converted property.

The district court agreed with the Club after an evidentiary hearing. It ruled Kelly
wrongfully converted the box's contents, breached her duties as the decedent's personal
representative, and mishandled the decedent's property. The court found Kelly converted
$11,000 of estate assets and ordered her to pay the estate $22,000 based on K.S.A. 59-
1704. It rejected her arguments that Taylor had gifted the safe deposit box contents to
her. It also rejected her alternative argument that she jointly owned the contents. The
court denied the petition for final settlement, denied Kelly's claim for executor fees, and
reserved ruling on the attorney fees claim.

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 The order does not identify when the conversion occurred, but there seems to be
no dispute it happened before the estate proceedings began. Kelly testified she opened the
safe deposit box and removed its contents "[a] couple of weeks" after Taylor died.

Kelly appealed. A Court of Appeals panel reached a mixed result. It unanimously
agreed with the district court's determination that Kelly converted the property and was
liable to the estate. It also unanimously rejected her alternative theories to support her
ownership claims. 2019 WL 5275029, at *3, 5, 6.

But the panel divided over the double penalty. 2019 WL 5275029, at *9. Two
panel members read the statute to exclude individuals who were not the estate's court-
appointed fiduciary. That majority reversed the district court's double penalty. 2019 WL
5275029, at *8. Judge Steve Leben disagreed, arguing the statute's plain language
controlled over the majority's strict-construction and caselaw considerations. 2019 WL
5275029, at *9-10 (Leben J., concurring in part and dissenting in part).

We granted the Club's petition for review to decide whether Kelly owed the
double penalty. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for
review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has
jurisdiction to review Court of Appeals decisions upon petition for review). Kelly did not
seek review of the panel's adverse holdings on her gift and joint tenancy claims.

ANALYSIS

It is undisputed Kelly removed the safe deposit box contents for her personal use
before she was appointed executor. The issue is whether the statute requires her to pay
the estate double the value of the converted funds when she was not the estate's executor
at the time of the taking. That answer turns on our interpretation of K.S.A. 59-1704.

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Standard of review

"'Statutory interpretation is a question of law over which an appellate court exercises
unlimited review.' And when interpreting a statute, the court begins its 'analysis with the
touchstone of statutory interpretation: legislative intent. The best and safest rule for
discerning this intent is the plain language of the statute. Only when the statutory
language is unclear or ambiguous [does the court] move on to consider tools of statutory
construction.' [Citations omitted.]" State v. Davis, 312 Kan. 259, 267, 474 P.3d 722
(2020).

When interpreting statutes, it is axiomatic that the legislative intent controls, if
ascertainable. In re Estate of Strader, 301 Kan. 50, 55, 339 P.3d 769 (2014). And in that
regard, the statutory text "is our paramount consideration because 'the best and only safe
rule for ascertaining the intention of the makers of any written law is to abide by the
language they have used. And in abiding by the language the legislature has used, we
assign common words their ordinary meaning.'" 301 Kan. at 55.

Discussion

We begin with the statute. It straightforwardly provides: "If any person embezzles
or converts to his or her own use any of the personal property of a decedent or
conservatee, such person shall be liable for double the value of the property so embezzled
or converted." (Emphasis added.) K.S.A. 59-1704. But the statute has not always read
this way.

Before a 1939 amendment, the earlier statute provided: "'If any executor or
administrator shall neglect to sell any portion of the personal property which he is bound
by law to sell, and retains, consumes or disposes of the same for his own benefit, he shall
be charged therewith at double the value affixed thereto by the appraisers.'" (Emphasis
added.) L. 1939, ch. 180, § 134. A Court of Appeals panel described this precursor and
the amendment as follows:

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 "[T]he earlier statutory double liability for conversion provision was, on its face,
applicable to executors and administrators. In contrast, K.S.A. 59-1704 directs the
imposition of double liability upon 'any person' who has engaged in the conduct
proscribed, that is, conversion of 'personal property of a decedent or conservatee.'" In re
Will of McDonald, 16 Kan. App. 2d 293, 295, 822 P.2d 637 (1991).

Only a handful of Kansas cases have applied the double penalty provision, but
their descriptions about its operation differ. For example, some have held that if a taking
covered by the statute occurred, the double penalty was mandatory, even if the
wrongdoer acted in good faith. See, e.g., In re Conservatorship of Marcotte, 243 Kan.
190, 195, 756 P.2d 1091 (1988) (quoting In re Estate of Engels, 10 Kan. App. 2d 103,
108, 692 P.2d 400 [1984]). Others held that since the statute is "of an exemplary
character," generally a surety under its agreement with its principal is "not liable . . . for
payment of double the value of property converted by its principal." Koch v. Merchants
Mutual Bonding Co., 211 Kan. 397, 403, 507 P.2d 189 (1973); see Martin v. Hanschu,
241 Kan. 521, 738 P.2d 96 (1987). Some of this caselaw guides the analysis required
here. Some does not.

In Engels, a Court of Appeals panel held an executor who converted estate funds
was liable for the double penalty, even though the executor took the funds "in good
faith." Engels, 10 Kan. App. 2d at 107. The double penalty was mandatory, the panel
held, "once a conversion by a fiduciary is found" because the statute provides that it
"'shall'" be assessed. 10 Kan. App. 2d at 108. Then, citing the Koch court's conclusion
that the penalty is exemplary in character, the panel observed, "[t]hus the purpose of the
statute is to punish the fiduciary who converts funds and to warn others that the conduct
is improper. The failure to impose the penalty neither punishes [the executor] nor deters
other fiduciaries from similar misconduct." (Emphases added.) 10 Kan. App. 2d at 108.

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 Engels appears to be the root of later interpretations implying the term "any
person" means only a fiduciary. But an obvious analytical problem arises because the
Engels panel cited no authority for its restrictive view. See 10 Kan. App. 2d at 108. And
since the Engels case dealt only with conversion by a fiduciary, its holding that the
penalty was mandatory did not require any additional discussion about whether the term
"any person" applied only to fiduciaries.

In McDonald, another Court of Appeals panel held a trustee of a testamentary trust
who converted trust funds several years after the probate estate was closed was not liable
for the double penalty. The panel reasoned that since the statute imposed a penalty, its
application to decedents' personal property must be strictly construed and could not apply
to the trust because it was a separate legal entity from the decedent's probate estate.
McDonald, 16 Kan. App. 2d at 294-95. It noted the trust funds were not "personal
property of a decedent." 16 Kan. App. 2d at 296.

In Marcotte, this court addressed whether the penalty applied to gifts made
"'without court approval and control'" by a conservatee through his stock broker to the
estate's co-conservators and their families. Marcotte, 243 Kan. at 193. The Marcotte
court held the co-conservators converted the funds gifted to them, even though they did
not solicit the gifts and the gifts were not the product of undue influence, fraud, or
coercion. The court reasoned, "Conversion is the unauthorized assumption or exercise of
a right of ownership over goods or personal chattels belonging to another to the exclusion
of the other's rights," so "[t]he intent required for conversion is satisfied merely by the
use or disposition of goods belonging to another." 243 Kan. at 194. Then, quoting Engels
with approval, the court held that the co-conservators were liable for the double penalty
for funds they personally received but not for gifts to other family members. The
Marcotte court explained, "K.S.A. 59-1704 specifically applies to funds converted to
one's own use and would therefore apply only to the $49,000.00 in gifts that went directly
to the co-conservators." 243 Kan. at 195. But the court did not explain why family
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members who used or disposed of the gifts to themselves could avoid double liability to
the estate for their own conversion of the gifted funds other than quoting general
language from Engels. Marcotte, 243 Kan. at 195.

Finally, in Bolton v. Souter, 19 Kan. App. 2d 384, 390, 872 P.2d 758 (1993), the
case Kelly mainly relies on, another Court of Appeals panel held the double penalty did
not apply to conversion of a conservatee's property. In that case, a proposed conservatee
gave money to a friend while a petition was pending to establish the conservatorship. The
friend converted the property to her own use, spending some money after the
conservatorship was established. The Bolton panel considered whether the convertor was
"any person" within the statute's meaning but followed no clear logical path in doing so.

First, the Bolton panel interpreted Engels, Marcotte, and McDonald to mean that
the double penalty would not apply when the converted property was not the decedent's
personal property but would apply to "the actions of a conservator . . . and executor and
special administrator." Bolton, 19 Kan. App. 2d at 389. Next, the panel observed the
penalty statute was included within the probate code's broader article that "contain[ed]
provisions applicable to all estates, with most of the sections referring specifically to
fiduciaries." 19 Kan. App. 2d at 389. Then, the panel noted a treatise on Kansas Probate
Law and Practice had observed the 1939 amendments expanded the earlier statute by
"extend[ing] liability to any person and includ[ing] the estates of wards as well as the
estates of decedents." 19 Kan. App. 2d at 390. And the panel quoted the same treatise's
definition of "'fiduciary'" as potentially including "'anyone appointed by, or under the
control of, or accountable to the probate court, and either acting in a fiduciary capacity
for another, or charged with duties in relation to any property, interest, trust, or estate for
the benefit of another.'" 19 Kan. App. 2d at 390. Finally, without pointing out any
relationship between those observations or their significance to the question before it, the
Bolton panel concluded,

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 "Under the facts of this case, the relationship of Souter to Bolton might be
deemed a fiduciary one, but it also may be characterized as that of coconspirators who
were endeavoring (at Bolton's instigation and instance) to thwart the effect of an expected
conservatorship and establish a separate emergency fund for Bolton's use unknown to a
conservator.

"Souter obviously is a person, but she was not Bolton's conservator, nor did she
obtain dominion over his property at a time she was operating under the control of the
district court.

"Bolton was not a conservatee at the time he transferred the property to Souter,
although the appointment had been completed before Souter finished the expenditure of
Bolton's money.

"Giving K.S.A. 59-1704 the strict construction that we are required to give a
statute penal in nature, we decline to apply it in a situation in which the proposed
conservatee was attempting to hide assets for his future emergency use.

"K.S.A. 59-1704 is a part and portion of the Kansas Probate Code. We hold it is
improper to widely apply its provisions to instances where the involved individual is not
an appointee of the district court and the assets in question are not under the control of a
court-appointed conservator, executor, or administrator." (Emphasis added.) Bolton, 19
Kan. App. 2d at 390-91.

The Taylor majority embraced Bolton, believing it "specifically addresse[d] the
issue presented here" and stood for the proposition that it is "improper to apply the
double penalty in instances where the individual is not an appointee of the district court."
Taylor, 2019 WL 5275029, at *8. This rationale is open to at least two critiques.

First, the panel majority interpreted Bolton to prohibit assessing the double penalty
against any person who is not an appointed estate fiduciary at the time of the conversion.
But that view lacks precision. The Bolton panel actually stated it would not "widely

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apply" the statute in that circumstance, so the Taylor majority misread the decision.
Bolton, 19 Kan. App. 2d at 391. And while the fact that the wrongdoer in Bolton was not
a fiduciary contributed to its outcome, so did other circumstances. In particular, the
Bolton panel concerned itself with the fact that the wrongdoer got the money as part of
the victim's own plan to hide assets from his conservatorship. See 19 Kan. App. 2d at
390.

And so, even if the Bolton panel correctly interpreted and applied the statute under
that case's circumstances, a proposition we disagree with as explained below, the facts
here would warrant a different outcome. Kelly gained access to the safe deposit box
during Taylor's lifetime and took its contents shortly after her death. And Kelly did not
report the cash in her initial inventory and estate valuation. She then used her position as
executor to keep the court from learning of the property's existence and its ownership
issue until the Club complained.

But whether Bolton correctly interpreted and applied the statute leads to the
second and most important critique of the Taylor majority's decision because Bolton's
analysis is inconsistent with the statute's plain language and our court's emphasis on
adhering to plain language interpretation. See, e.g., Stanley v. Sullivan, 300 Kan. 1015,
1018, 336 P.3d 870 (2014) ("This court has repeatedly emphasized that the plain
language selected by the legislature, when it does not conflict with constitutional
mandates, trumps both judicial decisions and the policies advocated by the parties.").

We view Bolton as unpersuasive. The "strict construction" the Bolton court
adopted to exempt the facts presented from K.S.A. 59-1704's mandate is simply not
rooted in the statute's text or triggered by ambiguity in its language. 19 Kan. App. 2d at
391. The Legislature chose to use the inclusive term "any person," which clearly captures
Kelly within its meaning.

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 "'A statute is open to construction only where the language used therein requires
interpretation or may be reasonably considered ambiguous. Thus, where no ambiguity
appears, it has been presumed conclusively that the clear and explicit terms of a statute
express the legislative intention. A plain and unambiguous statute is to be applied, and
not interpreted, since such a statute speaks for itself, and any attempt to make it clearer is
a vain labor and tends only to obscurity.'" State v. Haug, 237 Kan. 390, 392, 699 P.2d
535 (1985).

As Judge Leben pointed out in dissent, the fact the statute is clear would generally
preempt application of any canon of construction, such as the rule of strict construction
applied in Engels and Bolton. See Nauheim v. City of Topeka, 309 Kan. 145, 150, 432
P.3d 647 (2019) ("It is only when the statute's language is unclear or ambiguous that the
court employs the canons of statutory construction, consults legislative history, or
considers other background information to ascertain its meaning."). The panel majority's
outcome requires adding language to the statute to limit its application only to a fiduciary
who converts the decedent's property to their own use. Generally, a court will not
speculate about legislative intent and will not read a statute to add something not readily
found in it. Graham v. Dokter Trucking Group, 284 Kan. 547, Syl. ¶ 3, 161 P.3d 695
(2007).

The panel majority's approach also denies any effect to the Legislature's decision
in 1939 to apply the double penalty to "any person," as opposed to the statute's previous
application to "any executor or administrator." L. 1939, ch. 180, § 134. When a statute is
amended for reasons other than clarifying an ambiguity, "courts ordinarily presume that
by changing the language of a statute the legislature intended to change its effect,
[although] this presumption may be strong or weak, according to the circumstances, and
may be wanting altogether in a particular case." State ex rel. Morrison v. Oshman
Sporting Goods Co. Kansas, 275 Kan. 763, 773, 69 P.3d 1087 (2003).

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 Finally, the Legislature's decision to apply the penalty to "any person" who
converts or embezzles a decedent's personal property is not an anomalous policy choice.
Common forms of similar statutes in other states expressly impose double liability for
property converted before an estate representative is appointed. In Minnesota, for
example, a statute reads, "If any person embezzles, alienates, or converts to personal use
any of the personal estate of a decedent or ward before the appointment of a
representative, such person shall be liable for double the value of the property so
embezzled, alienated, or converted." Minn. Stat. § 525.392. The Minnesota Supreme
Court has said,

"The apparent purpose of the statute is to give to those persons subsequently
declared the legal owners of a decedent's estate a remedy against persons attempting to
deprive them of their heritage and to double the damages recoverable because of the
likelihood that the wrongdoer can in such cases successfully conceal his malfeasance."
Owens v. Owens, 207 Minn. 489, 498, 292 N.W. 89 (1940).

Similar examples can be found in other jurisdictions. See Cal. Prob. Code § 859
("If a court finds that a person has in bad faith wrongfully taken, concealed, or disposed
of property belonging to a conservatee, a minor, an elder, a dependent adult, a trust, or
the estate of a decedent, or has taken, concealed, or disposed of the property by the use of
undue influence in bad faith or through the commission of elder or dependent adult
financial abuse . . . the person shall be liable for twice the value of the property recovered
by an action under this part."); Ga. Code Ann. § 53-6-2 ("Any person who, without
authority of law, wrongfully intermeddles with or converts the personalty of a decedent
whose estate is unrepresented shall be deemed an executor de son tort and as such shall
be liable to the creditors and heirs or beneficiaries of the estate for double the value of the
property so possessed and converted."); Okla. Stat. tit. 58, § 292(A) ("If any person,
before the granting of letters testamentary or of administration, embezzles or alienates
any of the monies, goods, chattel or effects of a decedent, the person is chargeable
therewith, and liable to an action by the executor or administrator of the estate, for double
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the value of the property so embezzled or alienated, to be recovered for the benefit of the
estate.").

We hold there is nothing in K.S.A. 59-1704 limiting its application only to
circumstances when the decedent's funds are taken by a court-appointed estate fiduciary
after probate proceedings begin. The statute's plain language makes no allowance for the
circumstances Kelly argues to escape its application. We hold the district court properly
assessed the double penalty against Kelly under the plain language of K.S.A. 59-1704.
The panel majority erred in reversing the double penalty.

The judgment of the Court of Appeals affirming in part, reversing in part, and
remanding the case to the district court with directions, is reversed on the issue subject to
our review. The district court's judgment is affirmed on the issue subject to our review.

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