Butler v. Miller

• Decision Date: 07 June 1924
• Docket Number: 25,320
• Citation: 225 P. 895,116 Kan. 351
• Parties: MARY BUTLER, Appellant, v. INA MILLER, FLOSSIE ROCK, EDNA BROWN, NELLIE EWART, and EMMA WILLIAMSON, Appellees
• Court: Kansas Supreme Court

225 P. 895

116 Kan. 351

MARY BUTLER, Appellant, v. INA MILLER, FLOSSIE ROCK, EDNA BROWN, NELLIE EWART, and EMMA WILLIAMSON, Appellees

No. 25,320

Supreme Court of Kansas

June 7, 1924

Decided January, 1924.

Appeal from Allen district court; ROBERT E. CULLISON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WILL--Interpretation--Election of Widow to Take Under the Will--Widow May Not Take Both Under the Will and Under the Statute. When a husband makes provision in his will for his widow and she elects to take under the will, she takes under the will alone, and is not entitled to provisions of law for her benefit respecting the homestead or other property disposed of by the will.

2. SAME--Provisions of Will Not in Conflict With Rule Against Perpetuities. When by a will the estate in property becomes fully vested upon the death of the survivor of several named persons who were in being at the time the will was executed it is not void by reason of being in conflict with the rule against perpetuities.

C. S. Ritter, of Iola, for the appellant.

No appearance was made for the appellees.

OPINION

HARVEY, J.:

Mary Butler, the widow and executrix under the will of Joshua Butler, deceased, brought this suit in the district court to have construed and interpreted the second paragraph of the will, which reads as follows:

"It is my will and desire and I hereby give and devise to my wife, Mary Butler, the residence now occupied by me as my homestead and described as follows, to wit: (description), to have and to hold as her own during the term of her natural life and at her death to descend to my five daughters, Emma Williamson, Nellie Ewart, Edna Carmain, Flossie Henry and Ina Butler, share and share alike, during the term of the natural life of each of my said daughters respectively.

"And at the death of each of my said daughters, the share devised to her to descend to her children in fee simple; provided, that should any or either of my said daughters die without leaving living children, then the share of said property of said daughter or daughters dying without leaving living children shall descend to and become the property of my grandchildren in fee simple, share and share alike."

By other terms of the will bequest and devise of valuable property was made to each of the children and the widow, but none of these are asked to be interpreted or construed. Plaintiff averred that the homestead described in the second paragraph of the will was occupied by a large frame house, suitable for a large family, and a brick barn; that the house was old, in bad repair, was expensive to maintain, and not suitable as a home for plaintiff; and that the testator did not have such burdensome duties for plaintiff in mind when he made his will, and did not intend that she should not sell or exchange it for another home more suitable, but inserted the provisions with the belief that plaintiff and defendants could alienate and pass a full and complete title thereto, and provided that the proceeds be by her invested in another home for herself, and the balance, if any, be kept intact to abide the conditions of the will. It is further averred that plaintiff signed a consent to the will at the time it was made, but that such consent was not witnessed; that after it was probated she filed an election to take under the will and the codicil thereto, but that notwithstanding such consent and election the provision of the will devising any interest in the homestead to anyone other than plaintiff is void, being in contravention of the constitution and statutes providing a homestead right for the surviving wife of the deceased, and that by reason thereof she was entitled to the homestead in fee simple. It is further averred that the provisions of the will provide a complete suspension of the power to alienate the real property for an indefinite period; that the time when the title will vest is so remote that it cannot be calculated or ascertained, and the provision is void for that reason.

Upon the trial Mary Butler testified that she was the widow of Joshua Butler, who died January 2, 1919, and executrix of his will and now in charge of and managing the property left by him; that at the time of his death their home was upon the property described in the second paragraph of the will, where they had lived twenty-one years, and is...