Brown v. Brown

• Court: Kansas Supreme Court
• Writing for the Court: JOHNSTON, C. J.:
• Citation: Brown v. Brown, 101 Kan. 335, 166 P. 499 (Kan. 1917)
• Decision Date: 07 July 1917
• Docket Number: 20,950
• Parties: CHARLES A. BROWN, as Executor, etc., et al., Appellees, v. ELIZABETH M. BROWN, Appellant

166 P. 499

101 Kan. 335

CHARLES A. BROWN, as Executor, etc., et al., Appellees, v. ELIZABETH M. BROWN, Appellant

No. 20,950

Supreme Court of Kansas

July 7, 1917

Decided July, 1917.

Appeal from Atchison district court; WILLIAM A. JACKSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WILL--Rule for Interpretation--Intention of Testator. A rule for the interpretation of wills, to which all other rules are subordinate, is that the intention of the testator, as gathered from all parts of the will, is to be given effect and that doubtful or inaccurate expressions in the will shall not override the obvious intention of the testator.

2. WILL--Certain Provisions of a Joint Will Construed. A provision in a joint will that, "upon the death of either of us, the estate of the other, real, personal and mixed, shall vest in the survivor during the life of such survivor" etc., when read in connection with other parts of the will indicates that the intention meant to be expressed by the testators was that the estate of the deceased should vest in the survivor.

3. WILL--Construction--Property Bequeathed to Testators' Children and to Bodily Heirs of Testators' Deceased Children. A father and mother, each owning property, made a joint will, in effect providing that their respective estates should be kept together as an entirety, and upon the death of either the survivor should take the entire estate with full power to invest it or to dispose of it to parties other than the beneficiaries, and that upon the death of the survivor the property should vest in trustees, who were authorized to invest, change or convert the property of the estate and to manage and control it for a period of fifteen years, after which time it was to be distributed equally among living children and the heirs of the body of deceased children. Such bodily heirs of deceased children were to receive the share the parent would have received if living, and during the trust the trustees were to distribute the net income of the estate in the same proportions. It was specifically provided that if any of the children of the testators should die leaving a consort, such surviving consort should receive five hundred dollars and no other part of the estate. The father died first and before the death of the mother a son died leaving a wife but no children, and in a proceeding to settle the estate wherein the wife of the deceased son claimed a share, it is held that such wife was entitled to five hundred dollars in the estate, but that her husband acquired no vested interest in the estate in his lifetime and no part of it descended to her through her husband.

Charles J. Conlon, of Atchison, and Joseph S. Rust, of Kansas City Mo., for the appellant.

B. P. Waggener, J. M. Challiss, George DeLacy, and Walter E. Brown, all of Atchison, for the appellees.

OPINION

JOHNSTON, C. J.:

Charles A. Brown and Alice L. Byram as executors of the estate of Sarah Brown, deceased, made final settlement in the probate court, where an order was made adjudging who were the heirs, devisees and legatees of the deceased. Elizabeth M. Brown, the widow of William F. Brown, a son of the deceased, took an appeal to the district court, where she filed an intervening petition claiming an interest in the estate through her deceased husband. Upon the motion of the executors this petition was stricken from the files and the cause was tried upon the record of the probate court proceedings and upon agreed facts, with judgment resulting in favor of the executors. Elizabeth M. Brown appeals to this court.

In 1906 John P. Brown and his wife, Sarah, executed a joint will in which it was stated that they desired that the estates of both should be kept together as a whole until final distribution as therein provided. In its first paragraph it was provided that "upon the death of either of us, the estate of the other" should vest in the survivor for life with the right to use the income and to invest, convert or change the estate, and to dispose of any part of it to persons other than the beneficiaries of the will. The second paragraph provided that the survivor should be the executor of the one first dying. In the third paragraph it was provided that "upon the death of the surviving testator, the entire estate of both of us, as then existing, real, personal or mixed, shall vest in the trustees hereinafter provided for, who are hereby nominated and appointed as the executors of this will as the will of the surviving testator"; that the trustees should invest, convert and change the form of the estate and hold, manage and control the same for fifteen years from the death of the surviving testator, distributing the net income of the estate quarterly to the living children of the testators, pro rata, the heirs of the body of any deceased child to receive the share that would have gone to the parent; and that at the end of the fifteen-year period the estate was to be distributed in the same proportions. The fourth paragraph provided that any deceased child leaving a consort living when the will should take effect should receive five hundred dollars, and that no married consort should receive any part of the estate except as provided in that paragraph. In the ninth paragraph it was provided that the will should be irrevocable except by their joint consent, and that until and unless the will should be so revoked the property should vest in the beneficiaries according to the terms of the will.

When the will was executed the testator and testatrix had six children living and also the child of a deceased son. These children were living when the testator, John P....