Jackson v. Lee

• Decision Date: 09 May 1964
• Docket Number: No. 43602,43602
• Citation: 392 P.2d 92,193 Kan. 40
• Parties: Mildred JACKSON, Appellee, v. Josephine Jackson LEE et al., Appellants.
• Court: Kansas Supreme Court

Page 92

392 P.2d 92

193 Kan. 40

Mildred JACKSON, Appellee, v. Josephine Jackson LEE et al., Appellants.

No. 43602.

Supreme Court of Kansas.

May 9, 1964.

Syllabus by the Court

1. Under the provisions of a will which devises real estate to a son for life and upon the son's death to his heirs in fee simple, the heirs are to be determined in accordance with provisions of the statutes of intestate succession, which make the wife of the son one of his heirs, and the heirs so determined take such portions of the real estate as the statutes designate.

2. The record in a partition action examined and held to disclose no reversible error.

Richard D. Rogers, Manhattan, argued the cause, and John F. Stites, Manhattan, was with him on the briefs for appellants.

Clarence R. Sowers, Wichita, argued the cause, and John W. Sowers, Wichita, was with him on the briefs for appellee.

PARKER, Chief Justice.

This is an appeal from a judgment determining title to real estate in an action for partition.

The basic facts which are not in dispute will be stated as briefly as the state of the record permits.

Charles H. Jackson owned 1900 acres of land in Comanche County, Kansas. On January 3, 1939, he made a will in which he devised a life estate in the land to his wife, Josephine Jackson. Upon the death of Josephine 800 acres of land was to go to his daughter, Beatrice Zimmerman, in fee simple. The remainder of the 1900 acres was to go to a son, Robert S. Jackson, for life with the remainder to the son's heirs in fee simple. The construction of this specific provision in the will presents the controversy before us. It reads:

'* * * All the rest of said 1900 acres above described, at the termination of the life estate of my wife, I give, devise and bequeath to my son, ROBERT S. JACKSON, for his life, and upon his death, then I give, devise and bequeath said 1100 acres to his heirs in fee simple.'

At the time of the execution of the will of Charles H. Jackson, the son, Robert, was a widower with five children. Robert married the plaintiff, Mildred Jackson, on July 3, 1939.

Charles H. Jackson died on July 13, 1941. Subsequently his will was admitted to probate in Comanche County. On July 18, 1942, the probate court of that county entered a decree of final settlement. The decree, so for as here pertinent, provided:

'That it is determined by the Court that Robert S. Jackson is entitled to and there should be assigned to him a life estate after the termination of the life estate of his mother, Josephine Jackson, in the following described land in Comanche County, Kansas, to-wit:

(Here follows description of land involved.)

and that upon the death of Robert S. Jackson, then the remainder in fee should be and is hereby assigned to his heirs in fee, all as directed by the Will of the said deceased.'

Josephine Jackson died some three or four years after her husband, Charles. Robert S. Jackson, the son, died June 19, 1961, leaving as his sole and only heirs-at-law his second wife Mildred and the five children of his first wife.

Previous to the death of Robert, and on January 22, 1951, Mildred conveyed part of her contingent interest in the land, or all of her interest subject to contingent payments, to Hobart McMillen. The nature of this particular conveyance is not material to this controversy.

On July 7, 1961, Mildred brought an action for partition of the land in question. In her petition she alleged that under the will of Charles H. Jackson she owned a one-half interest therein and the five children of Robert owned an undivided interest in the remaining one-half thereof, all of which was held as tenants in common.

On November 3, 1961, the trial court permitted Hobart McMillen to be made a party defendant in the action.

Thereafter, and on November 25, 1961, Mildred transferred all of her interest in the land to McMillen by a quitclaim deed. McMillen then filed a cross-petition setting up his claim to the interest of Mildred. The five children, defendants below and appellants here, filed joint answers to the petition and the cross-petition.

The gist of the answer to the petition may be found in the following allegation:

'The defendants further answer that they alone own the above described real estate as tenants in common and that the plaintiff has no interest therein.

'For further answer to the plaintiff's Petition the defendants allege that if the plaintiff become the owner of any interest in the above described real estate under and by virtue of the Will of Charles H. Jackson; which the defendants specifically deny, then that under the terms of said Will the plaintiff, Mildred Jackson, took as a member of a class and on a per capita basis with each of the defendants herein, and therefore the plaintiff's interest in said real estate is only a 1/6th interest.'

In part the answer to the cross-petition alleged:

'The defendants further Answer that the only interest the intervenor, Hobart McMillen could have in the real estate described as follows, to-wit:

(Here follows description of land involved.)

would be the interest, if any, that the plaintiff, Mildred Jackson, had in said real estate and that therefore the defendants specifically deny that Hobart McMillen is the owner of any interest in the said real estate.'

The answer to the cross-petition, by reference, made the answer to the petition a part thereof.

When the case came on for trial the parties introduced evidence purporting to show the intention of the testator, Charles H. Jackson. At the close of the trial the lower court concluded in part:

'The Court finds that this case rests on the construction, as a matter of law, of the portion of the Will of Charles H. Jackson, deceased, which reads as follows:

"* * * I give, devise and bequeath to my son, Robert S. Jackson, for life, and upon his death, then I give, devise and bequeath said 1,100 acres of land to his heirs in fee simple.'

'(a) and on this point the conclusion of the Court, as a matter of law, is that the above described real estate was devised and bequeathed to Robert S. Jackson for his life and upon the death of Robert S. Jackson said real estate became vested in fee simple in the heirs-at-law of Robert S. Jackson, deceased, and that said title vested in the named heirs-at-law of Robert S. Jackson, deceased, as follows:

(Mildred Jackson, one-half, the five

children of Robert S. Jackson each

one-tenth.)

'Although the Court does not rest his opinion on the testimony offered as to the intention of the original testator, the court is moved to comment that defendant, having offered testimony of intention, opened the door to the testimony of Jay T. Botts, who drew the will, and the testimony of said Jay T. Botts establishes the intention of the testator to be in accordance with the conclusion stated above.'

and rendered judgment accordingly. Thereafter, having filed a motion for a new trial which was overruled, defendants perfected the instant appeal.

The salient question for determination is the interpretation to be placed on the clause in the will of Charles H. Jackson which reads:

'* * * I give, devise and bequeath to my son, ROBERT S. JACKSON, for his life, and upon his death, then I give, devise and bequeath said 1100 acres to his heirs in fee simple.' (Emphasis supplied.)

The appellants first contend that Mildred Jackson is not an heir of her husband under the statutes of intestate succession. They state:

'We must remember that the right of a widow in Kansas to inherit from her husband arises by reason of G.S. of Kansas, 1949, Section 59-505, and the statutory interest does not come to the spouse by inheritance. * * *'

We cannot agree with all of appellants' contention. However, we can agree that G.S.1949, 59-505, which gives one-half of the realty of which one spouse is seized or possessed during the marriage to the other spouse, is not a statute of inheritance. The interest which the statute gives one spouse in the real estate of the other comes into existence by operation of law upon the concurrence of seizin and the marriage relation. The widow takes not as an heir of her husband under this statute but as her separate and absolute property in fee simple. The interest is one that a wife may protect during her husband's lifetime. See, e. g., Overman v. Hathaway, 29 Kan. 434; Busenbark v. Busenbark, 33 Kan. 572, 7 P. 245; McKelvey v. McKelvey, 75 Kan. 325, 89 P. 663; Putnam v. Putnam, 104 Kan. 47, 52, 177 P. 838; In re Estate of Williams, 158 Kan. 734, 737, 150 P.2d 336. It may be said that 59-505, supra, protects the interest in the real property during the marital relation which a spouse has the right to inherit under the provisions of G.S.1949, 59-504.

Heirship and the right of inheritance, including the right of a spouse, are governed by other provisions of the statute. The right of heirship is determined by the laws of intestate succession. G.S.1949, 59-502 provides in part:

'* * * the property of a resident decedent, who dies intestate, shall at the time of his death pass by intestate succession as provided in this article.'

The right of a surviving spouse to inherit is governed by G.S.1949, 59-504, which reads:

'If the decedent leaves a spouse and no children nor issue of a previously deceased child, all his property shall pass to the surviving spouse. If the decedent leaves a spouse and a child, or children, or issue of a previously deceased child or children, one-half of such property shall pass to the surviving spouse.'

Other provisions of the statute (G.S.1949, 59-506 to 59-509, incl.) provide for a complete line of intestate succession. If there are no heirs such as are mentioned in the statute the property escheats to the state (G.S.1949, 59-514.). Contrary to a suggestion by appellants, the common law as to heirs and intestate succession has no application in this state, it has been superseded by our statutory laws of intestate succession.

Heirship is a legal...