Kosar v. Boucek

• Decision Date: 06 April 1935
• Docket Number: 31910.
• Parties: KOSAR et al. v. BOUCEK et al.
• Court: Kansas Supreme Court

42 P.2d 596

141 Kan. 576

KOSAR et al. v. BOUCEK et al.

No. 31910.

Supreme Court of Kansas

April 6, 1935

Syllabus by the Court.

Will must be construed as whole to end that testator's intention may be ascertained and followed as nearly as possible.

Under will bequeathing to testator's widow all his personalty and also certain realty "to be hers absolutely," widow acquired only life estate in personalty, since, in view of subsequent clause of will bequeathing to testator's children all of personalty subject to widow's life estate, quoted words referred to realty and not to personalty.

In an action to construe a will, it is held that the will should be construed as a whole, to the end that the intention of the testator may be ascertained and followed as nearly as possible.

Appeal from District Court, Ottawa County; Dallas Grover, Judge.

Action by Mary Kosar and another against Mary Boucek and others. Judgment for plaintiffs, and defendants appeal.

Lee Jackson, of Minneapolis, and Clyde L. Short, of Concordia for appellants.

L. A McNalley and F. D. Boyce, both of Minneapolis, for appellees.

SMITH Justice.

This was an action for the construction of a will. Judgment was for plaintiffs. Defendants appeal.

Testator died, seized of a house and lot in Ada, Kan., and 80 acres of land in Ottawa county. In addition, at the time of his death he owned a $5,000 mortgage. By his will he appointed his widow, Mary Boucek, executrix. The will was, in part, as follows:

"Second: I give, devise and bequeath to my wife Mary Boucek, all the personal property that I may own at the time of my decease after the paying of my debts and funeral expenses, also Lots Four (4) and Five (5), in Block Twelve (12), in the Town of South Ada, Kansas, Ottawa County, to be hers absolutely. I give and devise to my wife Mary Boucek, for her use and benefit during the term of her natural life, all the balance and remainder of my real estate that I may own at the time of my decease, with remainder over as hereinafter provided.

"Third: Subject to the life estate of my wife Mary Boucek therein, I give, devise and bequeath, equal to my daughters, Mary Kosar, Tracy Wolf, Bertha Prochaska, Anna Pugh and my son Charles Boucek, all the following described real estate, the West Half of the Southwest quarter of Section Six (6) in Township Ten (10) South of Range Five (5) West of the Sixth Principal Meridian, in Ottawa County, Kansas, the East Half of the Southeast Quarter of Section One (1), in Township Ten (10) South, Range Six (6) West of the Sixth Principal Meridian, in Lincoln County, Kansas.

"Fourth: Subject to the life estate of my wife Mary Boucek therein, I give, devise and bequeath, equal to my daughters Mary Kosar, Tracy Wolf, Bertha Prochaska, Anna Pugh and my son Charles Boucek, all my personal property."

The wife, Mary Boucek, approved the above will and consented to take under it.

The plaintiffs in this case are a daughter and a son of testator. The defendants are daughters and the widow. The controversy arises because plaintiffs claim that the will just quoted gives only a life estate in the personal property to the mother. The mother and two of the daughters claim that the will bequeathed the personal property to the mother outright with full power to dispose of it. The other daughter named as defendant did not appear. The trial court entered judgment, in accordance with...