Baker v. Hickman

• Court: Kansas Supreme Court
• Writing for the Court: HARVEY, J.:
• Citation: Baker v. Hickman, 127 Kan. 340, 273 P. 480 (Kan. 1929)
• Decision Date: 12 January 1929
• Docket Number: 28,426
• Parties: CORENE STEWART BAKER, Appellant, v. FRANKIE STEWART HICKMAN, as an Individual and as Executrix of the Estate of Gertrude E. Stewart, Deceased, Appellee

273 P. 480

127 Kan. 340

CORENE STEWART BAKER, Appellant, v. FRANKIE STEWART HICKMAN, as an Individual and as Executrix of the Estate of Gertrude E. Stewart, Deceased, Appellee

No. 28,426

Supreme Court of Kansas

January 12, 1929

Decided January, 1929.

Appeal from Douglas district court; HUGH MEANS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WILLS--Witnesses--Effect of Naming Witnesses in Body of Will. A testatrix in the body of her will named two persons to act as witnesses. When the will was executed one of those, and another, signed as attesting witnesses. There is no contention that the witnesses who signed did not do so under the conditions provided by statute. Held, the will to be not invalid for the reason that it was not properly witnessed.

2. SAME--Devise Dependent Upon Discontinuance of Relation of Husband and Wife. A testatrix had two married daughters. Her will provided that in the event a named one of them was a widow at the time of the death of the testatrix she should have an equal share of her property, but in the event she and her husband were living together at that time she should have but one dollar. Held, that the will is not invalid as being against public policy in that it tended to cause an unlawful separation between the daughter and her husband.

J. B Wilson and E. H. Beck, both of Lawrence, for the appellant.

J. H. Mitchell, of Lawrence, for the appellee.

OPINION

HARVEY, J.:

This is an action to set aside a will and the probate thereof. The trial court sustained a demurrer to plaintiff's petition, and she has appealed. The questions argued can be shown best by setting the will out in full. It reads:

"I, Gertrude E. Stewart, of Lawrence, Douglas county, Kansas, being of lawful age and sound mind and memory, do hereby make, publish and declare this instrument of writing to be and contain my last will and testament.

"I hereby state that my property consists of money in bank, mortgages on real estate, together with some bonds and other securities. I have two daughters, Mrs. Corinne Stewart Baker, of North Bend, Ore., and Mrs. Frankie Stewart Hickman, of Kansas City, Mo., who are my sole heirs at law.

"First. I direct that all of my just debts, funeral expenses and the expenses of the settlement of my estate shall be paid in full.

"Second. In the event that at the time of my decease my daughter, Mrs. Corinne Stewart Baker, is still the wife of L. L. Baker, I give and bequeath to her the sum of one dollar ($ 1) to be paid from my estate.

"Third. I give and bequeath to my daughter, Mrs. Frankie Stewart Hickman, aforesaid, all the remainder and residue of my estate of whatever kind and nature.

"Fourth. But in the event that my daughter, Mrs. Corinne Stewart Baker, aforesaid, shall at the time of my decease be a widow, or shall have obtained a divorce from L. L. Baker, and shall no longer be the wife of L. L. Baker, then I desire and order that my two daughters, Mrs. Corinne Stewart Baker and Mrs. Frankie Stewart Hickman shall share equally, share and share alike, in my estate.

"I hereby nominate and appoint my daughter, Mrs. Frankie Stewart Hickman, executor without bond of this my last will and testament, with full power to carry out all of its provisions.

"In Witness Whereof, I have hereunto subscribed my name this 12th day of December, 1925, in the presence of Mina P. Dias and Narsie Carter, who are requested by me to attest and subscribe this will as witnesses, and in whose presence I do hereby acknowledge the same to be my free act and deed.

"GERTRUDE E. STEWART, Testator.

"Signed, sealed, published and delivered by the said Gertrude E. Stewart, the testator above named, as and for her last will and testament, in the presence of us, who at her request and in her presence and also in the presence of each other, have hereunto subscribed our names as witnesses this 12th day of December, 1925.

ELLA HILDEBRAN,

MINA P. DIAS, Witnesses."

Appellant first argues that the instrument is not properly witnessed, for the reason that the testator in the body of the will named two persons before whom she had executed it, and whom she requested to sign as witnesses, only one of whom did so.

This point lacks merit. The attesting clause recites that the instrument was executed and acknowledged in the presence of two attesting witnesses. This is all the statute (R. S. 22-202) requires. The order of the probate court admitting the will to probate is prima facie evidence of due attestation (R. S. 22-224), and the petition contains no allegations of fact tending to establish that the statements of the attestation clause are not true. The fact that one of the attesting witnesses was not named as a witness by the testator in the body of the will is of no consequence.

Appellant further argues that the provisions of the will tend to promote divorce or homicide and are void as against public policy. In the petition it is alleged that the testator died August 26, 1927, almost two years after the will was executed; that the testator had a strong dislike for plaintiff's husband, L. L. Baker, and urged plaintiff to sever her marriage relation with him, and that on being refused the testator executed this will and "flouted the same before the eyes of this plaintiff and demanded that this plaintiff get rid of her husband." This presents the only meritorious question in the case. We regret that it was not better briefed by counsel. We have investigated the authorities as fully as our limited time would permit and have reached the conclusion that the point is not well taken.

At the beginning of the discussion we note, for whatever bearing it may have, that there is no allegation in the petition that the testator was unduly influenced by anyone in the making of her will, neither is it alleged that she was of unsound mind or laboring under an insane delusion. For all the petition alleges the testator may have been justified in her dislike of plaintiff's husband. Parents have considerable latitude in advising their children regarding their marriage relations, and under some circumstances may properly advise a separation; indeed, it may become their duty to do so. Generally speaking, a testator of sound mind and not under undue influence has a right to dispose of his property by his will as he pleases. The validity of the will of such a person is to be determined primarily from the language of the will. If the language of the will can be reasonably construed to sustain its validity, that construction should be given to it, rather than to give the language a construction which would render the instrument invalid. Extrinsic evidence may be received to show the extent of the testator's property, but, in the absence of allegations of undue influence, such evidence is incompetent to show the motives which prompted the testator to dispose of the property as he did; hence, allegations in the petition in this case as to those matters must be disregarded.

It is a common provision in wills that a devise or bequest shall vest in certain beneficiaries in the event of the death of a person named. Such provisions have never been held invalid for the reason that they tend to induce the beneficiaries to kill the person named, or to accelerate the event of his death by any unlawful means; rather, such wills are construed as arising from the lawful ideas of the testator that the death of the person named would eventually take place from natural causes.

Appellant stresses the argument that a gift or devise in restraint of marriage, or tending to bring about a separation or divorce between husband and wife, is void as against public policy. We are not cited to a case, and our own search discloses none, in which this court has heretofore passed upon this question. There are many cases, however, in the English and other American courts treating the question, or some phase of it. The principle of the common law is laid down by Coke and Cruise:

"If an estate be given to a woman 'dum sola fuerit' (while she shall remain sole) or 'durante viduitate (during widowhood), the grantees have an estate for life determinable upon the happening of these events." (1 Just. 42 (a), Cruise Dig. Tit. Estate for Life, ch. 1, § 8.)

In England the ecclesiastical courts were powerful and influential for many years and took over very largely the questions pertaining to the family relation. These courts encouraged marriage and frowned upon divorce, and held generally speaking, that any gift or devise which made it to the financial advantage of a single person to remain unmarried, or for a married person to obtain a divorce, or a husband or wife to live separately and apart from the other, was void. Rules pertaining to that subject were clearly traceable to the civil law and ultimately to the Roman. The ecclesiastical courts dealt only with personal property. When the common-law courts were called upon to decide similar questions they were sometimes seriously embarrassed with precedents already established in the ecclesiastical courts. The courts of chancery found difficulty in harmonizing these conflicting views in accordance with equitable principles. The result was a lack of harmony in the decisions which even the English courts deplored. (28 R. C. L. 321 et seq.) A similar lack of harmony existed in the early American decisions. (1 Story's Equity Jurisprudence §§ 291a, 291e, 291d.) Lack of harmony among the decisions of the various jurisdictions still exists. (See cases collected in the notes, 49 L. R. A., n. s. 633, 637, and 45 A. L. R. 1220.) Generally speaking, it may be said that the courts of equity and of common law in England, and generally the American courts, are inclined to hold as void only those gifts,...