In re Casey's Estate

Decision Date06 March 1943
Docket Number35806.
Citation156 Kan. 590,134 P.2d 665
CourtKansas Supreme Court

Syllabus by the Court.

The use in will of merely formal phrases directing payment of testator's debts out of his estate does not make devise of homestead subject to payment of such debts, but, to subject it to payment thereof, language employed must be unequivocal and imperative.

A will must be construed by considering testator's situation and all provisions of will as to disposition of his property.

Each will must be construed by its own terms, and, if there is any ambiguity in language thereof, court must put itself in testator's position so far as possible, considering all circumstances under which will was executed and condition of testator's family and estate, and determine his intention from all facts and circumstances.

The probate court's findings, on hearing of executrix' petition for final settlement of estate, that all of testator's property, including described realty, passed to his widow as sole devisee under his will, and that such realty was homestead of testator and his wife and had been occupied by her as homestead ever since testator's death sufficiently complied with statute requiring that decree name testator's heirs, describe property, and specify part thereof to which each devisee is entitled. Gen.St. Supp.1941 59-2249.

Under Constitution and statute, property occupied by owner and his wife as homestead on date of his death, when wife inherits title thereto, is held by her as her absolute property, free from decedent's debts, so long as she occupies it as homestead. Gen.St.1935, 22-102, 60-3501; Const. art. 15, § 9.

A homestead, owned and occupied as such by widow of deceased former owner thereof, may be conveyed by her, and title to property or any interest therein passes by her deed free from any liability for ordinary debts of decedent's estate.

A widow's grantee of homestead property takes it free from ordinary judgments and debts against grantor's deceased husband and may assert homestead character of property to prove invalidity of such claims against husband.

A widow, in whom title to her deceased husband's homestead is vested, may convey it to any person she pleases, with or without consideration, and decedent's creditors cannot complain thereof.

Where husband and wife occupy as homestead land to which title is in husband, he may execute valid will giving entire property to his wife.

The fact that title to homestead property passes according to direction of deceased owner's will, instead of statute of descents and distributions, does not change rule that intestate's homestead is exempt from sale for payment of his debts so long as it is occupied by any of his family.

A widow's election to take under her deceased husband's will does not subject his homestead to payment of his debts though will places full title thereto in widow to exclusion of decedent's adult children.

A widow of testator survived by adult children did not take title to homestead, devised to her, by purchase, instead of descent under common-law doctrine of "worthier title", though testator died before enactment of statute abolishing such doctrine, as homestead character of real estate depended on family occupancy, not on source of title. Gen.St.Supp.1941, 58-506.

An unsecured creditor of deceased testate homesteader acquires no present existing lien against homestead under probate judgment allowing debt as claim against testator's estate, for creditor's interest, if any, in homestead is inchoate one, which does not vest during occupancy of homestead, but is mere expectancy or possibility, depending on conditions and circumstances which may or may not materialize in future, and, if homestead is conveyed while so occupied, nothing remains for creditor to take and he is deprived of no right.

A claim, allowed by probate court, against testator's estate, was judgment of court of record, enforceable by execution or otherwise in same manner as district court judgment, notwithstanding distribution decree denying claimant a continuing lien on homestead lands devised to testator's widow. Gen.St.Supp.1941, 59-301, 59-2218; Const. art. 3, § 10.

It is not within courts' equitable power to declare an indebtedness a lien on homestead, unless expressly authorized by Constitution.

A court will not express opinion on abstract question which does not arise on existing facts or rights, nor where it is sought merely to obtain court's opinion on question of law.

A widow, who had not abandoned or ceased to occupy homestead, devised to her by her husband's will, could do with it as she pleased, and purchaser, to whom she conveyed it, obtained valid title, which could not be successfully challenged by testator's unsecured creditor, whose claim against estate was allowed, and such creditor's appeal from district court's judgment, denying his petition to declare claim a continuing lien on homestead, in widow's proceeding as executrix for final settlement of estate, must be dismissed, as any judgment rendered by Supreme Court would be unavailing.

1. The use in a will of formal phrases and general statements indicating a desire on the part of a testator that his debts be paid do not make a devise of a homestead subject to the payment of such debts.

2. Final decree of distribution examined and found to conform to the requirements of C.S.1941 Supp. 59-2249.

3. Where a husband and wife occupy a homestead, the title being in the husband, he may execute a valid will giving the entire property to her.

4. A homestead devised to the widow is held by her as her absolute property.

5. Title to a homestead, devised to and occupied by a widow, may be conveyed by her free from any liability for the ordinary debts of an estate.

6. A creditor whose claim has been allowed in probate court acquires no present existing lien against the homestead. His interest, if any, is an inchoate one which does not vest during the occupancy of the homestead and is a mere expectancy or possibility, depending upon conditions and circumstances which may, or may not, materialize in the future.

7. Following the rule courts will not express all opinion upon an abstract question which does not arise on existing facts or rights, held, that in an action involving the construction of a will and a determination of the homestead rights, acquired by the widow and sole devisee, this court will not pass upon the future status of a creditor's claim as against the homestead in the event of its subsequent abandonment.

Appeal from District Court, Russell County; C. A. Spencer, Judge.

Proceeding by Elizabeth Casey, executrix of the will of John Casey, deceased, for final settlement of testator's estate, in which the Farmers Elevator Company of Dorrance filed a petition for findings and decree holding such company's allowed claim against the estate a continuing lien on a homestead devised to the executrix as testator's widow. From a judgment denying claimant's petition, claimant appeals.

J. C. Ruppenthal, of Russell, for appellant.

Jerry E. Driscoll and Harold W. McCombs, both of Russell, for appellee.

PARKER Justice.

This action requires a determination of the right, title and interest acquired by a widow, sole devisee under the last will and testament of her husband, in the homestead devised to her and occupied by her as such, as against the allowed general claim of a creditor, not given for improvements upon or for any part of the purchase price of that homestead.

On the 8th day of September, 1938, John Casey died, a resident of Russell County, leaving a last will and testament. This will named his widow as sole devisee and specifically devised all of his property to her. It also contained the following language: "It is my wish and desire that all of my just debts, funeral expenses and expenses if any of my last illness be paid out of my estate and I hereby pledge my whole estate for that purpose and request that the same be done as soon as may be conveniently done, and that the balance of my property both real and personal and mixed and wheresoever situated and located, be disposed of in the following manner, that is to say: (a) I give, devise and bequeath to my beloved wife Elizabeth Casey, all of my said estate consisting of all of my property both real and personal and mixed and wheresoever located and situated and for her absolute property forever. I especially request that she use good judgment in handling said estate, paying all debts and expenses, and handling the balance thereof so that she may have a comfortable home and living during her lifetime. (b) I hereby name and appoint my beloved wife Elizabeth Casey as executrix of this my last will and testament and especially charge that she conform with my wishes and desires herein expressed."

The will was duly proved and admitted to probate and as provided by statute the widow filed her election to take under the will. Thereafter, the Farmers Elevator Company, appellant herein, filed a claim against the estate based upon a promissory note. It was admitted the note, upon which the claim was based, was not given for any improvements upon the homestead of the decedent nor for any part of the purchase price thereof. This claim was allowed by the probate court. In due time the executrix filed her petition for final settlement. No objection was made by the appellant until the date set for the hearing of such application. On that date the appellant filed what is termed a "Petition for Findings and Decree." This petition, after formal allegations, including averments as to the allowance of appellant's claim, requested, in substance, that upon the probate...

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