Hinshaw v. Wright

• Decision Date: 07 January 1928
• Docket Number: 27,749
• Citation: 124 Kan. 792,262 P. 601
• Parties: O. G. HINSHAW, Appellee, v. MABEL WRIGHT, ETHEL MILLER and F. L. MARTIN, as Individuals and as Executors, etc., Appellants
• Court: Kansas Supreme Court

262 P. 601

124 Kan. 792

O. G. HINSHAW, Appellee, v. MABEL WRIGHT, ETHEL MILLER and F. L. MARTIN, as Individuals and as Executors, etc., Appellants

No. 27,749

Supreme Court of Kansas

January 7, 1928

Decided January, 1928

Appeal from Reno district court; WILLIAM G. FAIRCHILD, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. WILLS--Construction as a Whole. Rule followed that to ascertain the character and extent of a devise of real property all the provisions of a will pertaining thereto must be read and construed together, not by giving controlling significance to one of the terms of the devise and ignoring the others.

2. SAME--Restriction on Right of Devisee's Creditors to Attach--Provision for Devise Over in Case of Invalidity. No rule of law or of public policy is violated by a testator by providing that property devised by him shall not be subject to attachment for the compulsory satisfaction of the debts of the devisee, nor by providing for a devise over in the event that such an inhibition against involuntary alienation should be judicially declared to be invalid.

3. SAME. A father devised 200 acres of land to his son declaring it to be in fee simple, but providing that the land should not be subjected to attachment for the son's debts, and providing for a defeasance and making another testamentary disposition of the land if the restrictions he had imposed upon the devise to the son should be held to be invalid by a binding adjudication. Held, the first devise was good; a creditor of the son could not subject the land to attachment and the peculiar terms of the will offended against no rule of law or public policy.

F. Dumont Smith, F. L. Martin and James N. Farley, all of Hutchinson, for the appellants.

C. M. Williams, D. C. Martindell and W. D. P. Carey, all of Hutchinson, for the appellee.

OPINION

DAWSON, J.:

The question in this appeal is whether a certain 200-acre tract of land devised to John Jones by his father was subject to attachment and execution for the debts of the devisee, and its correct solution requires a construction of the will, which in part reads:

"2. I give and devise to my daughter, Mabel Wright, of Langdon, Kansas, the following-described real estate, situate in the county of Reno, and state of Kansas, to wit: [320 acres described] to have and to hold the same in fee simple.

"3. I give and devise unto my daughter, Ethel Miller, . . . [320 acres described] to have and to hold the same in fee simple.

"4. I give and devise to my son, Victor Jones, [240 acres described] to have and to hold the same in fee simple.

"5. I give and devise to my son, John Jones, [200 acres described] to have and to hold the same in fee simple.

. . . .

"9. I am free to make the devises and bequests herein specified and they are made voluntarily for the use and benefit of the devisees and legatees herein named and no one else, and are made upon the express condition that the same shall not be subject to attachment, execution, garnishment or any legal process in favor of any creditor of such devisee or legatee. I do not feel under moral obligation to pay the indebtedness of any of the devisees or legatees of this last will and testament, and if any creditor shall attempt in violation of my will to subject my bequests or devises herein made or any of the real estate herein devised to the payment of any of the debts or obligations of the said devisee or legatee, and the court shall finally hold that such devise or bequest is subject to the payment of debts of a devisee or legatee, it is my will that the portion of the property which I have devised or bequeathed to any such devisee or legatee shall immediately become a part of the residue of my estate and such devise and bequest shall immediately lapse and end.

"The share of such devisee and legatee in such residue shall become a trust fund in the hands of the executors and shall be paid to the said devisee or legatee for necessities from time to time as the executors may determine and decide; and such fund, if held or declared by the court to be subject to judicial process of attachment, garnishment, or other legal proceedings for debt of the devisee or legatee, shall become a part of my estate, and I give and devise the same to my other children not involved in debt, share and share alike.

"10. All the residue of my estate, . . . I give and devise to my four children, herein named, . . . share and share alike.

"11. I hereby nominate and appoint as executors of this my last will and testament, my daughters, Mabel Wright, and Ethel Miller, and Frank L. Martin, and I hereby authorize them as executors to do and perform every act necessary to carry out the provisions of this my last will and testament, and if it shall become necessary because of the provisions of this my last will and testament, that any of the real estate herein devised shall become a part of the residue of my estate, I hereby authorize my executors to make a sale thereof and to execute the necessary writings, contracts and deeds of conveyance, to sell and dispose of the same and convert the same into money for distribution as a part of the residue of my estate."

The plaintiff, D. G. Hinshaw, brought this action against John Jones (J. W. Jones, Jr.) on five promissory notes. The land devised to John was attached on affidavit and publication service. Jones was not personally served; his place of abode was unknown and he had not been heard of for some years.

The defense to plaintiff's action was undertaken by the executors and by the sisters and brother of John. They were permitted to intervene and filed their interplea, setting up the will, the long absence and silence of John, the possession of the executors, the non-liability of the property to attachment under the terms of the will, and praying for a construction of the will and for a judicial declaration of the rights of the intervenors and other heirs and devisees of the testator, and to quiet their title and other equitable relief.

Plaintiff's demurrer to the interplea was sustained, the attachment was upheld, and the property ordered sold to satisfy the default judgment entered against John.

The intervenors appeal.

The appellee would justify the trial court's judgment on the ground that the devise of the land to John Jones vested in him an unqualified title in fee simple, and that the provisions of paragraph 9 of his father's will are contrary to law, against public policy, and void.

Let us see about this proposition. The fact that the devise to John in paragraph 5 is set down ahead of the qualifying and conditional provisions in paragraph 9 is of no particular significance. In Markham v. Waterman, 105 Kan. 93, 181 P. 621, it was said:

"The old rule that a seemingly unqualified devise in an independent and prior clause of a will cannot be diminished by separate, subsequent clauses of the will (McNutt v. McComb, 61 Kan. 25, 58 P. 965; 4 Kent Comm. 270) has been largely superseded by the modern Kansas rule, that the testator's intention is to be gleaned 'from the four corners of the instrument'--from the entire text of the document. Some of our earlier cases foreshadow the coming of this doctrine (Williams v. McKinney, 34 Kan. 514, 519, 9 P. 265; Ernst v. Foster, 58 Kan. 438, 49 P. 527), and this court was fully committed to it in Bullock v. Wiltberger, 92 Kan. 900, 142 P. 950, and has followed it consistently in all the later cases [citations]." (p. 95.)

In Pearson v. Orcutt, 106 Kan. 610, 612, 189 P. 160, it was said:

"The defendants place much reliance upon McNutt v. McComb, 61 Kan. 25, 58 P. 965. . . . The similarity of that will to the one here involved, with respect to the estate conveyed, is obvious. But several considerations serve to impair the force of the decision as a controlling precedent here. It was influenced largely by the application of the ancient and artificial rule that where the language of a will on its face imports the vesting of an absolute fee, that effect shall not be denied by reason of a subsequent clause attempting a limitation thereon. This rule is one of a number of somewhat similar character made use of in solving problems arising from conflicting provisions by giving preference to one or the other according to some hard and fast formula, instead of attempting to reconcile them--to ascertain and carry out the actual wishes of the testator as derivable from his language and the attending circumstances. The primary rule of construction now followed by this court, in that situation as in all others, is to give effect to the testator's real intention as gathered from the entire document, without regard to the place in which it occurs, except so far as that circumstance may logically throw light on his meaning."

Our more recent cases reiterate this later rule. (Chaplin v. Chaplin, 105 Kan. 481, 184 P. 984; West v. West, 106 Kan. 157, 186 P. 1004; Utilities Co. v. Bowersock, 109 Kan. 718, 729, 202 P. 92; Mansfield v. Crane, 116 Kan. 2, 225 P. 1087; Bierer v. Bierer, 121 Kan. 57, 245 P. 1039; Regnier v. Regnier, 122 Kan. 59, 251 P. 392.)

In view of the foregoing, the devise to John is to be defined by giving due significance to the provisions of paragraph 9 as well as to those of paragraph 5.

What merit is there to appellee's contention that the provisions of paragraph 9 are contrary to law and public policy? Appellee invokes the statute (R. S. 22-258) which declares that every devise by will shall convey all the title the testator had "unless it shall clearly appear by the will that the testator intended to convey a less estate." But there can be no cavil here about the testator's intention. He expressly intended to convey to his son only such...