Martindale v. Smith

Citation31 Kan. 270,1 P. 569
Decision Date03 January 1884
CourtUnited States State Supreme Court of Kansas

Error from Greenwood District Court.

THE opinion states the nature of the action, and the facts. Trial by the court at the December Term, 1882, and judgment for defendant Smith. The plaintiff Martindale brings the case here.

Judgment affirmed.

Clogston & Fuller, for plaintiff in error.

Scott & Lynn, for defendant in error.

VALENTINE J. All the Justices concurring.



This was an action in ejectment and for partition, brought November 3, 1881, by William Martindale against William M. Smith and Sarah Ann Smith. The plaintiff claimed to own the undivided half of the real estate for the recovery of which this action was brought, and admitted that the defendant owned the other undivided half. At the time of bringing the action, Sarah Ann Smith was dead, and the action was therefore proceeded with merely as an action between Martindale and William M. Smith. Smith answered, setting up First a general denial; and second, that he (Smith) was the sole and exclusive owner of the property in controversy. A trial was had before the court without a jury, and the court made the following findings and conclusions, to wit:


"1. W. C. Waybright died on the 27th day of January, 1872, in the county of Greenwood and state of Kansas, and occupied at the time of his death the premises in question, situated in said county, to wit: the south half of the southeast quarter of section two, and the north half of the northeast quarter of section eleven, all in township twenty-seven, range eleven, together with his family, consisting of his wife, Sarah A. Waybright, and no other person, as a homestead.

"2. That said W. C. Waybright left surviving him as heirs-at-law, one child by a former marriage, George Waybright, who resided in the state of Indiana, and who was at the time of his father's death about nineteen years of age, and Sarah A. Waybright, the wife of the deceased.

"3. That said W. C. Waybright died testate, leaving a will, by the terms of which all of the estate of said W. C. Waybright was devised and bequeathed, both real and personal, to his wife, except five dollars was bequeathed to said son, George Waybright.

"4. That afterward, and on the 17th day of February, said last will of W. C. Waybright, deceased, was duly proved and admitted to probate and record in the probate court of said Greenwood county, and is still in full force and effect; and said Sarah A. Waybright duly elected to take under the will.

"5. That said Sarah A. Waybright alone continued to occupy said real estate from the death of her husband, W. C. Waybright, until the 18th day of May, 1875, at which time she intermarried with defendant William M. Smith, and she and her husband, William M. Smith, continued to occupy the premises in question as their homestead until the spring of 1878, at which time she and her husband went to Colorado for a temporary purpose to benefit her health, she being afflicted with pulmonary consumption. There was one child born to said William M. Smith and Sarah A. Smith, which died in childhood, before its mother. The said William M. Smith and wife never returned from Colorado, she having died of consumption on the 20th day of June, 1881, in said state, leaving the said William M. Smith her only heir.

"6. Sometime in the latter part of the year 1875, said George Waybright conveyed all the interest and title he possessed in and to the lands in question to the plaintiff, for a good and valuable consideration."


"That said plaintiff has no interest in said real estate or any part thereof, and is not entitled to recover in this suit."

Judgment was rendered in accordance with these findings and conclusions in favor of the defendant Smith, and against the plaintiff Martindale, who brings the case to this court, and asks for a reversal of such judgment.

We think the only question involved in this case is, whether the will made by Waybright to his wife is valid, or not. If it is valid, Smith is entitled to the entire property; but if it is void, Martindale is entitled to one-half thereof. The plaintiff claims that the will is void for the reason that a husband cannot devise his homestead, or any part thereof, by will to his wife. Under the law relating to descents and distributions a wife would unquestionably take one-half of the homestead, whether...

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8 cases
  • Carothers' Estate Carothers v. Carothers, Case Number: 31691
    • United States
    • Supreme Court of Oklahoma
    • April 2, 1946
    ...spouse and children. This Is in accord with the holding of the Supreme Court of Kansas under similar provisions. Martindale v. Smith, 31 Kan. 270, 1 P. 569; Vining v. Willis, 40 Kan. 609, 20 P. 232; Postlethwaite v. Edson, 102 Kan. 104, 171 P. 769; Hicks v. Sage, 104 Kan. 723, 180 P. 780; P......
  • In re Casey's Estate
    • United States
    • United States State Supreme Court of Kansas
    • March 6, 1943
    ...of land as a homestead, the title being in the husband, he may execute a valid will giving the entire property to his wife. Martindale v. Smith, 31 Kan. 270, 1 P. 569; Allen v. Holtzman, supra; Vining v. Willis, 40 609, 20 P. 232. Moreover, this court has held the fact that title passes acc......
  • Postlethwaite v. McCabe
    • United States
    • United States State Supreme Court of Kansas
    • March 9, 1918
    ...touching wills may be found, in no instance has this court decided anything to impair the force of this rule. In Martindale v. Smith, 31 Kan. 270, 1 P. 569, it said (p. 273) that when death occurs the title to the property of the person dying must be transferred to some person, that it cann......
  • In re Carothers' Estate
    • United States
    • Supreme Court of Oklahoma
    • April 2, 1946
    ...... children. This is in accord with the holding of the Supreme. Court of Kansas under similar provisions. Martindale v. Smith, 31 Kan. 270, 1 P. 569; Vining v. Willis, . 40 Kan. 609, 20 P. 232; Postlethwaite v. Edson, 102. Kan. 104, 171 P. 769, L.R.A.1918D, ......
  • Request a trial to view additional results

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