Hoyne v. Schneider
| Decision Date | 09 December 1933 |
| Docket Number | 31,301 |
| Citation | 27 P. 558,138 Kan. 545 |
| Parties | MARY HOYNE et al., Appellees, v. ELEANORA M. SCHNEIDER, Appellant |
| Court | Kansas Supreme Court |
Decided July, 1933.
Appeal from Saline district court; DALLAS GROVER, judge.
Judgment reversed and cause remanded.
SYLLABUS BY THE COURT
WILLS--Construction--Description of Land Devised. Where H. in his lifetime owned the entire south half of a certain section 18 which contained 330.20 acres, and under his will he devised the same in four parts to his sons: To John the W 1/2 of the SW 1/4 of sec. 18, twp 14, rg. 3 west of the 6th P. M., and to William the E 1/2 of the SW 1/4 of sec. 18, twp. 14, rg. 3 west of the 6th P. M., and to the other two sons the lands in the SE 1/4 by similar descriptions, the name of the county where said lands are situated not being given, and the United States government field notes, plats and survey show that the west half of the southwest quarter contains 90.20 acres and the other half quarter sections in said south half of the section contain 80 acres each, as between John and William, it is held the father intended to devise to them according to the United States government survey, and not by equal quantitative parts of the southwest quarter.
Z. C. Millikin, of Salina, for the appellant.
David Ritchie, of Salina, for the appellees.
OPINION
This was an action in form to construe a will, actually to determine the amount in acreage of lands going to certain devisees under decedent's will.
Timothy Hoyne by patent from the United States obtained title to the south half of the southwest quarter of section 18, township 14, range 3, Saline county, containing 85.11 acres. He also by patent from the United States obtained title to the north half of the above southwest quarter containing 85.09 acres. He also obtained title to other real estate not involved in this action.
Timothy Hoyne died May 24, 1915, leaving a last will which was thereafter admitted to probate in Saline county, Kansas. So far as is necessary to note here, the will devises lands as follows:
1. To his son John the W 1/2 of the SW 1/4 of sec. 18, twp. 14, rg. 3 west of the 6th P. M.
2. To his son William the E 1/2 of the SW 1/4 of sec. 18, twp. 14, rg. 3 west of the 6th P. M.
3. To his son Tim the W 1/2 of the SE 1/4 of sec. 18, twp. 14, rg. 3 west of the 6th P. M.
4. To his son Thomas the E 1/2 of the SE 1/4 of sec. 18, twp. 14, rg. 3 west of the 6th P. M.
The name of the county where the land lies is not given, although preceding the above devises he gives his son Phillip other land in section 19, township 14, range 3 west of the 6th P. M., Saline county, Kansas.
Subsequent to the death of his father, William Hoyne died intestate, leaving as his heirs the plantiffs in this action. In their petition plaintiffs allege that the said southwest quarter contains 170.20 acres according to government survey; that under the terms of the will of Tim Hoyne they are the owners of the east 85.10 acres of the said southwest quarter and that the defendant Eleanora M. Schneider claims to own the west 90.20 acres of said southwest quarter, and that a controversy has arisen between plaintiffs and the defendants as to the true construction of the will of said Tim Hoyne; that immediately after the death of Tim Hoyne, the son William took open and notorious possession of the east 85.10 acres of said southwest quarter and since that time he and the plaintiffs have been in open and exclusive possession of said 85.10 acres. The prayer is for a judgment construing said will and a determination of the rights of the parties in and to said lands so that each will know just how many of the acres in said quarter sections are owned by plaintiffs and the defendant, etc.
The defendant admits that Tim Hoyne owned the lands in question and left a will as above outlined. She alleges that she owns the west half of said southwest quarter and that it contains not less than 90.20 acres and that no part thereof is the property of the plaintiffs; that she is entitled to the immediate possession of the whole of the west half of said southwest quarter and the acreage thereof as determined by the government survey and that plaintiffs unlawfully keep her out of possession of a small part thereof. She asks that she be adjudged to be the legal owner of and entitled to the immediate possession of the west 90.20 acres of the southwest quarter of section 18, etc.
The evidence offered showed the facts recited. The county engineer was called as a witness and testified concerning a survey he had made. He produced from his office records the government field notes, map and official plat of section 18, all of which were duly identified and admitted. These documents show that the section contains 660.32 acres; that the northwest quarter of the northwest quarter contains 45.05 acres; the southwest quarter of the northwest quarter 45.07 acres; the northwest quarter of the southwest quarter 45.09 acres, and the southwest quarter of the southwest quarter 45.11 acres. (Addition will show that these fractional tracts total 180.32 acres, which, subtracted from the total of 660.32 acres, leaves 480 acres for the remainder of the section.) The west half of the southeast quarter contains 80 acres and the east half of the southeast quarter contains 80 acres. The county engineer further testified with reference to making a survey, to finding stones at appropriate places, that all section corner stones were found, as well as the quarter corners on the north and west, the others being established, and explained that this section is on the west side of the township and in a government survey any shortage or overrun is on the west and north of the township; that the government in making the survey set the section corner and quarter corners, but did not set other corners in the field though it did in the field notes. In making the survey he found the southwest quarter actually contained 170.52 acres rather than the 170.20 acres called for by the government survey, and that according to the regulations he had prorated the excess, which gave the east half of the southwest quarter 80.18 acres and the west half of the southwest quarter 90.34 acres. Defendant also offered a book put out by the General Land Office entitled "Lost or Obliterated Corners and Subdivisions of Sections," and, among others, the following quotation therefrom:
(p. 22.) (Italics ours.)
In addition to the above, it was shown William Hoyne contracted to sell his land. He described himself as an heir under the last will of Timothy Hoyne and contracted to sell the east half of the southwest quarter of section 18, township 14, range 3, according to the government survey. This contract was never carried out. It was shown John Hoyne sold the west half of said southwest quarter to Thomas Hoyne, who in turn sold it to the National Bank of America, which in turn sold to Eleanora M. Schneider, whose deed states the description contained 90 acres more or less.
The trial court found for the plaintiffs and ordered that the boundary line between the east half and the west half of said southwest quarter should be and is at a point equidistant between the east line and the west line of said quarter section, and that plaintiffs are owners of 85.29 acres and defendant is the owner of the west 85.28 acres of said quarter section and barring each of the parties from land set off to the other. Defendant's motion for a new trial was overruled, and she appeals.
On the other hand, the appellant contends that the terms "east half" and "west half" had reference to the government survey, and that what John Hoyne and William Hoyne received under their father's will is to be determined by reference to such survey. It will be noted that there is no dispute about what the government survey shows; that there is a total of 170.20 acres called for by the field notes, and that owing to some overrun on the ground the county engineer computed the total acreage as 170.52 acres. Neither is there any dispute that according to the government survey there is in the west half of said southwest quarter 90.20 acres as called for in the notes, and in the east half of said southwest quarter 80 acres as called for in the notes, and that in the west half of the southeast quarter there is 80 acres and in the east half of the southeast quarter there is 80 acres, and that the field notes specify the east-and-west widths of the respective tracts on their southern boundaries as 22.56, 20, 20 and 20 chains. It may be remarked that appellees have appealed from the...
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