Aten v. Tobias

• Decision Date: 10 November 1923
• Docket Number: 24,707 and 24,841
• Citation: 220 P. 196,114 Kan. 646
• Parties: BESSIE E. ATEN, NORA E. JONES et al., Appellants, v. EDWIN E. TOBIAS et al., Appellees
• Court: Kansas Supreme Court

220 P. 196

114 Kan. 646

BESSIE E. ATEN, NORA E. JONES et al., Appellants, v. EDWIN E. TOBIAS et al., Appellees

Nos. 24,707 and 24,841

Supreme Court of Kansas

November 10, 1923

Decided July, 1923.

Appeal from Rice district court; DANIEL A. BANTA, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WILL--Interpretation--Written Consent of Wife to a Bequest by Her Husband of Real Estate Standing in Her Name Bars the Rights of All Persons Claiming under or through Her. Where a testator devises property the title to which is held by his wife and she gives her written consent to such testamentary disposition of it, the wife thereby in effect renounces her right of ownership in the devised property and bars all persons whose rights thereto must be claimed under and through her.

2. SAME--Trust Created by Will--Not Defeated by Subsequent Provisions of the Will. A precedent particular estate in lands sufficient to support a devise of the remainder is created by the erection of a trust estate for the duration of the lives of certain designated beneficiaries who are to enjoy the net rents and profits thereof; and such precedent particular estate is not defeated because the beneficiaries are forbidden to alienate or encumber it during their period of enjoyment.

3. SAME--Partial Disinheritance of Two Testators Daughters Because of Ill Will of Testator toward Their Husbands, and Subsequent Reconciliation Does not Operate to Revoke any Portion of the Will. The fact that a testator who in his will partially disinherited two daughters because he disapproved of their marriages and disliked their husbands but afterwards became reconciled to the marriages and came to have a high regard for their husbands and often declared the daughters should share equally in his personal estate with his other children, does not operate to revoke that portion of the will which made disposition of the testator's personal estate.

4. SAME--Great Increase in Value of Personal Property Between the Time of Making the Will and the Testator's Death Did not by Implication Amount to a Revocation of the Bequests of Personal Property. A great increase in a testator's personal estate between the time of the making of his will when it was worth $ 8,000 and the time of his death seven years later when it was worth $ 90,000 which increase grew out of the testator's savings of income and not from any change in the nature of the property owned by him at the time his will was made, does not by implication of law amount to a revocation of the bequest of the personal estate.

5. SAME--Equitable Adjustment of the Costs of These Actions. Where a life estate in real property is devised to six beneficiaries with remainder to grandchildren of the testator and his consenting wife, and two of the beneficiaries attack the will for the purpose of judicially freeing the realty from the life estate and expanding their own interest and the interests of the other four beneficiaries therein into an allodial fee, and the four other beneficiaries are made defendants and make default, and the real and successful defense to the action is made by the grandchildren whose interests were chiefly imperiled by the action, the costs of the litigation should be borne proportionately by the six beneficiaries of the life estate, and may for convenience be paid by the executor and charged to their account.

C. M Williams and C. D. Martindell, both of Hutchinson, for the appellants.

C. E. Branine, H. R. Branine, both of Hutchinson, Ben S. Jones, and Walter W. Stahl, both of Lyons, for the appellees.

OPINION

DAWSON, J.:

These appeals pertain to an action to set aside a will and matters incidental thereto. The first was taken from a ruling on the pleadings; the second is from the judgment on the merits.

Most of the litigants are children or grandchildren of the late Cyrus Tobias of Rice county. Edwin E. Tobias, a son of the testator, is a defendant personally and also in his capacity as executor. Defendant Emma Mason was a daughter of Cyrus by a former wife. Defendant Valentine O. Enders was a son of Mrs. Tobias by a former husband.

Cyrus Tobias and his wife in their lifetime had accumulated considerable real estate, some 1,400 acres of land or more, and had a rapidly growing personal estate. The title to 320 acres known as their home place was held by the wife. In 1913 Cyrus Tobias made a will, disposing of all his property including the home place. In substance the will gave to his wife, Susan E. Tobias, their household goods, $ 10,000 in cash, and a life interest in the home place, of which Susan was then the title holder.

The immediate family of Cyrus and Susan consisted of grown sons and daughters, Edwin, Katie, Bessie and Nora who were born to Cyrus and Susan; Emma, daughter of Cyrus; and Valentine, son of Susan. The will bestowed on these six persons a life estate in the rents and profits on the home place, if the testator should outlive Susan, and it also devised to them a life estate in all the other realty owned by Cyrus.

The remainder estate in all the lands of Cyrus, including the home place, was devised to the grandchildren, including the children of Emma Mason and the children of Valentine O. Enders, per capita and not per stirpes. Certain details in the will, specifying the executor's powers, placing restrictions on the powers of life tenants to alienate, and as to the disposition of the interest of any child or grandchild who might die before the time of entry and enjoyment of the remainder estate by the grandchildren may need little attention here.

The personal estate was bequeathed in equal shares to the daughter Katie and to son Edwin and to the stepson Valentine.

Susan gave her written consent to the will at the time it was executed. She died intestate in 1920, and Cyrus died in 1921. Meantime the personal property of Cyrus vastly increased between the making of his will in 1913 and the time of his death in 1921. To develop the questions raised between the litigants, the will must be largely reproduced:

"LAST WILL AND TESTAMENT OF CYRUS TOBIAS.

"It is my desire, and will in which my wife, Susan E. Tobias, has expressed and does express a cordial concurrence and approval, to reserve intact the bulk, body and substance of the real estate of which I may die seized or possessed for the grandchildren of either and both myself and my wife, now living or hereafter to be born and in the interpretation and execution of the terms of this will the foregoing condition of the minds of myself and wife shall be born in mind. To this end and with this view and purpose, I give, devise and bequeath all property both real and personal which I may own at the time of my death as follows:

"First: I give, devise and bequeath unto my wife Susan E. Tobias should she survive me, for and during the term of her natural life, our home farm, described [description] together with all the rents, issues, profits and proceeds of said half section of land. I further give, devise and bequeath unto my said wife if she should survive me, all our household and kitchen furniture.

"Second: I give, devise and bequeath unto my son Edwin E. Tobias, my stepson Valentine O. Enders and my daughters Nora E. Jones, Kate V. Cherpital, Bessie E. Aten, and Emma S. Mason, share and share alike for and during term of their natural lives only as hereinafter, in this will, limited, defined and explained after the death of my wife Susan E. Tobias or after my death if I should survive my wife, the [home place]. Out of the rents and issues of said real estate there shall be first paid annually, by my executor, all taxes charges, and assessments thereon, and the residue of all rents, issues, profits, and proceeds shall be divided equally share and share alike between and among the six legatees, above, in this paragraph named.

"Upon the death of any or either of such six legatees, if he or she shall leave surviving a child or children, such child or children shall take the place and be entitled to the share of its or their parent, so long as any of the above named six legatees may live. . . .

"Upon and after the death of all of said six legatees above named the said half section of land shall be and become the property in fee simple, of the grandchildren of myself and wife, or either of us, being children of any of the above named six legatees who may leave a child or children surviving.

"Upon the vesting of said real estate, in fee simple, in the grandchildren of myself and wife, or either of us, all such grandchildren shall take and receive equally, share and share alike per capita and not per stirpes.

"Third: I give, devise and bequeath unto my son Edwin E. Tobias, my stepson Valentine O. Enders and my daughters Nora E. Jones, Katie V. Cherpital, Bessie E. Aten and Emma S. Mason, share and share alike for and during the term of their natural lives only, as hereinafter, in this Will, limited, defined and explained, all the rest residue and remainder of the real estate of which I may die seized or possessed, wheresoever the same may be situated.

"Out of the rents and issues of said real estate, there shall be first paid annually, by my executor, all taxes, charges and assessments thereon, and the residue of all rents, issues, profits and proceeds thereof shall be divided equally share and share alike, between and among the six legatees above, in this paragraph named.

"Upon the death of any, or either of such six legatees, if he or she shall leave surviving a child or children, such child or children shall take the place and be entitled to the share of its or their parent, so long as any of the above named six legatees may live. . . .

"Upon and after the death of all of said six legatees above...