Johnston v. Gibson

• Court: Kansas Supreme Court
• Writing for the Court: SCHROEDER; FATZER
• Citation: Johnston v. Gibson, 334 P.2d 348, 184 Kan. 109 (Kan. 1959)
• Decision Date: 24 January 1959
• Docket Number: No. 41164,41164
• Parties: Harry E. JOHNSTON, Appellee, v. Jack GIBSON and Herbert Gibson, Appellants.

Page 348

334 P.2d 348

184 Kan. 109

Harry E. JOHNSTON, Appellee, v. Jack GIBSON and Herbert Gibson, Appellants.

No. 41164.

Supreme Court of Kansas.

Jan. 24, 1959.

Syllabus by the Court.

1. Where a testatrix devised a quarter section of land to her husband subject to the right and privilege of another and his wife 'to have the full use, possession, management, enjoyment and control of said land, rent and tax free, as long as they, or either of them, continue to occupy the same as their home,' and the servivor of such occupants has not physically occupied said premises for approximately five years by reason of physical infirmities of old age, it is held in an ejectment action that the trial court properly entered judgment for the husband of the testatrix for possession of said land.

2. The similarity of the words 'occupy the same as their [his] home' in a will and the words 'occupied as a residence' in Article 15, Section 9, of the Constitution of the State of Kansas, which provides a homestead exemption to the extent of one hundred sixty acres of farming land 'occupied as a residence by the family of the owner, together with all the improvements on the same, * * *' does not create a homestead interest in the occupants, upon facts disclosed in the foregoing syllabus, since the above provision of the Constitution makes no reference to a situation where title to real estate was vested in another.

3. Where a court, either trial or appellate, is called upon to determine the force and effect to be given the terms of a will, its first duty is to survey the instrument in its entirety and ascertain whether its language is so indefinite and uncertain as to require the employment of rules of judicial construction to determine its force and effect; and where from an analysis of the entire instrument no ambiguity or uncertainty is to be found in its language, the intention of the testator being clearly and unequivocally expressed, there is no occasion to employ rules of judicial construction and the will must be enforced in accordance with its terms and provisions.

4. The words 'as long as they, or either of them, continue to occupy the same as their home' as used in a will, upon facts more particularly disclosed in the opinion, have a plain and ordinary meaning and express the intention of the testatrix with complete definiteness and certainty. They do not require the application of rules of judicial construction.

5. Where the terms of the will are clear and not inconsistent with other provisions, a court has no power, either by the process of excision or by some other method of reformation, to reform or make a will for a testatrix otherwise than she saw fit to make it.

John A. Etling and W. N. Beezley, Kinsley, and Morgan Wright, Larned, on the brief, for appellants.

Rae E. Batt, Kinsley, for appellee.

SCHROEDER, Justice.

This is an action in ejectment for possession of real estate. Appeal has been duly perfected to this court from a judgment of the lower court ejecting the defendants.

The only question presented is whether Jack Gibson, one of the defendants below, is entitled to retain possession of the quarter section of real property in question under the terms, provisions and conditions set forth in the last will and testament of Martha Gibson Johnston, deceased.

Upon issues properly joined by the pleadings the parties stipulated all material facts. They stipulated:

'1. That Martha Gibson [Johnston] died, testate, on the 24th day of August, 1939, owning the following described real estate situated in Edwards County, Kansas, to-wit:

'The Southeast Quarter (SE 1/4) of Section Eighteen (18), Township Twenty-five (25) South, Rangs Sixteen (16) West of the 6th P.M.

'2. The last will and testament of the said Martha Gibson [Johnston], deceased, was duly admitted to probate in the probate court of Edwards County, Kansas, on the 29th day of September, 1939. That by the terms of said last will and testament, the above described real estate was devised to the plaintiff, Harry E. Johnston, subject to the following proviso, to wit:

"provided, however, and subject to the right and privilege of Jack Gibson, brother of David Gibson, deceased, and his wife, Marie Gibson, to have the full use, possession, management, enjoyment and control of said land, rent and tax free, as long as they, or either of them, continue to occupy the same as their home.'

'3. Marie Gibson, wife of Jack Gibson, died approximately ten years ago.

'4. Jack Gibson, defendant in this action, is the Jack Gibson mentioned in the above quoted provision of the will of Martha Gibson [Johnston], deceased, and the defendant, Herbert Gibson, is the son of said Jack Gibson, and has in recent years farmed the above described lands.

'5. The said Jack Gibson, together with his wife, resided upon the above premises, continuously, until the death of said Marie Gibson, and thereafter the said Jack Gibson continued to reside thereon. That the said Jack Gibson has at all times claimed the above premises as his home, but that for approximately the last five years, he has not physically occupied the premises except for one day in May, 1955, and that since that time the house on said premises has been uninhabitable.

'6. That Jack Gibson is now about 85 years old; From about 1952 and until early in 1957, because of his physical infirmities, he stayed with different ones of his several children who cared for him but early in 1957, because of his physical condition he has been either hospitalized or living in a convalescent home and is presently in the Nulf Convalescent Home in Larned, Kansas.

'7. Plaintiff has paid the taxes on the above described lands ever since 1939.' (Emphasis added.)

The parties further stipulated that the last will and testament of Martha Gibson Johnston, deceased, and the partnership agreement, whereby Herbert Gibson and Jack Gibson farmed the land in question, could be received in evidence and considered by the court.

The will is quite lengthy and revealed that Martha Gibson Johnston owned considerable property. The paragraph in the will immediately following the provision for Jack Gibson and his wife devised one half section of real estate in Edwards County to her husband, Harry E. Johnston (plaintiff-appellee), for life with a remainder over to another. The agreement between Jack Gibson and Herbert Gibson specified that the quarter section in question be operated by the parties as partners upon the terms and conditions set forth.

It is appellants' contention that 'so long as Jack Gibson claimed the premises as his residence, * * * and has farmed the land, he did not forfeit the estate granted to him by the will of Martha Gibson Johnston, for the reason that, because of old age, attending physical infirmities, and need for care and medical attention he was not in actual physical occupancy of the premises.'

Appellee's position is that the provision in question required Jack Gibson to physically occupy the premises in order to preserve his rights to possession under the will.

The basis of appellants' argument is the similarity of the words 'occupy the same as their [his] home' and the words 'occupied as a residence' in Article 15, Section 9, of the Constitution of the State of Kansas, which provides a homestead exemption to the extent of one hundred sixty acres of farming land 'occupied as a residence by the family of the owner, together with all the improvements on the same, * * *.' Since the language is virtually identical, appellants contend, the testatrix intended and did give to Jack Gibson an estate in the land comparable to a homestead right. It is argued that if the testatrix had a life estate in mind at all, she intended to give Jack Gibson something more than a life estate, not less, since his estate was to be tax free. Appellants then rely upon rules of law applied in cases where homestead rights in real estate were challenged on the ground of abandonment. Williams v. Roberts, 139 Kan. 460, 32 P.2d 229; Carlson v. Ritchie, 115 Kan. 722, 224 P. 895; Koehler v. Gray, 102 Kan. 878, 172 P. 25, L.R.A.1918D, 1088; Smith v. Landis, 93 Kan. 453, 144 P. 998, and Shattuck v. Weaver, 80 Kan. 82, 101 P. 649.

Counsel have cited us to no cases, either from this jurisdiction or elsewhere, involving the precise language presently before the court. It has been said that under such circumstances this court may well assume that counsel, after diligent search, have been unable to find any. McCoy v. Fleming, 153 Kan. 780, 783, 113 P.2d 1074; Simeon v. Schroeder, 170 Kan. 471, 475, 227 P.2d 153; Ehrhart v. Spencer, 175 Kan. 227, 233, 263 P.2d 246, and Shobe v. Tobin Construction Co., 179 Kan. 43, 48, 292 P.2d 729.

While the law is reasonably clear concerning the requirements for abandonment of a homestead, the testatrix did not create a homestead interest by the devise in question. Article 15, Section 9, of the Constitution of the State of Kansas, in using the words 'occupied as a residence', made no reference to a situation where title to real estate was vested in another. To establish a homestead the Constitution requires that the land be 'occupied as a residence by the family of the owner, * * *.' (Emphasis added.) Clearly, under the provisions of the will Jack Gibson and his wife, or either of them, never acquired any ownership in the quarter section of land in question. The fee title was devised to Harry E. Johnston, husband of the testatrix, who was required to pay the taxes. The right of Jack Gibson and his wife, or either of them, 'to have the full use, possession, management, enjoyment and control of said land, * * * as long as they, or either of them, continue to occupy the same as their home', was rent-free. Nowhere does the Kansas Constitution indicate that employment of similar language, or even the same language, under the circumstances here disclosed, would create a homestead right in any party who is not the owner, or a member...