Mastellar v. Atkinson

• Court: Kansas Supreme Court
• Writing for the Court: JOHNSTON, C. J.
• Citation: Mastellar v. Atkinson, 94 Kan. 279, 146 P. 367 (Kan. 1915)
• Decision Date: 06 February 1915
• Docket Number: 19264
• Parties: MASTELLAR ET AL. v. ATKINSON ET AL.

146 P. 367

94 Kan. 279

MASTELLAR ET AL. v. ATKINSON ET AL.

No. 19264

Supreme Court of Kansas

February 6, 1915

Syllabus

In the will of one who died and left surviving him a wife, one son and six daughters, he devised a life estate to his wife and added that after her death “I will and desire that the said property shall revert to my beloved son Artie Atkinson provided that in such event he shall pay to each of his sisters, Annie Hendrickson, Nancy Hooks, Ida Mastellar, Sarah Jackson, Lydia Wilson and Daisy Teach, the sum of two hundred dollars ($200.00). Said two hundred dollars to be paid in yearly payments of sixty-six and two-thirds dollars ($66 2/3) to each sister as above enumerated. The first payment to be made on the first day of September, following the first day of April after the death of my wife, Ellen Atkinson.” In a proceeding to determine the ownership of the property and to partition the same, it is held that the fee of the land vested in the son upon the death of the testator but that the enjoyment of possession is postponed until the life estate is terminated, and that the son takes the fee charged with the payment of the legacies given to the daughters of the testator, and that any one who succeeds to the estate and interest of the son prior to the completion of the payments takes the land subject to such charges.

Appeal from District Court, Lincoln County.

Action by Ida Mastellar and others against Sarah Atkinson and others. From judgment for defendants, plaintiffs appeal. Affirmed.

S. N Hawkes, Asst. Atty. Gen., and W. W. McCanles, of Kansas City, for appellants.

John J. McCurdy, of Lincoln, and Z. C. Millikin, of Salina, for appellees.

OPINION

JOHNSTON, C. J.

This action involves the interpretation of a will and the ownership and partition of a quarter section of land described in the will. George Atkinson, who owned the land, died in 1904, and left surviving him his widow, one son, and six daughters. In the will which he made, he devised a life estate to his widow, and further provided that after her death--

"I will and desire that the said property shall revert to my beloved son Artie Atkinson, provided that in such event he shall pay to each of his sisters, Annie Hendrickson, Nancy Hooks, Ida Mastellar, Sarah Jackson, Lydia Wilson and Daisy Teach, the sum of two hundred dollars ($200.00). Said two hundred dollars to be paid in yearly payments of sixty-six and two-thirds dollars ($66 2/3) to each sister as above enumerated. The first payment to be made on the first day of September, following the first day of April after the death of my wife, Ellen Atkinson."

Artie Atkinson, the son of the testator, died in 1912, and left surviving him Sarah Atkinson, his wife, and two children. This action was brought by the daughters of the testator against the heirs of Artie Atkinson, to recover the land and partition the same among the plaintiffs. The defendants answered, claiming to be the owners of the land, subject to the life estate devised to the widow of the testator and to the payment of certain sums of money which the will directed should be paid to the plaintiffs. A reply to the answer was filed, which was subsequently withdrawn, and a demurrer to the answer filed. The demurrer was overruled, and, the plaintiffs failing to plead farther, a trial was had, which resulted in a finding in favor of the defendants, and a judgment that the plaintiffs had no interest or title in the land.

The purpose of the testator is reasonably manifest. Evidently he undertook to make a complete disposition of his entire estate. A life estate in his land was given to his wife, and then he proceeded to make a disposition of the fee. While some unusual words were employed by the scrivener, who was evidently without legal training, it is reasonably clear that it was the intention of the testator to give the fee to his son, Artie, charged with the payment of the legacies given to the daughters of the testator. Donohue v. Donohue, 54 Kan. 136, 37 P. 998. Nothing in the will indicates a purpose to give the fee of the land to either the widow or the daughters, nor that the daughters should have more than the sums of money which the son was directed to pay to them. All the inferences derivable from the language in the will proceed on the theory that the entire estate is given to the members of the testator’s family; and, under such circumstances, the presumption is that he intended to dispose of his entire estate, and not to die intestate as to any of his property. Singer v. Taylor, 90 Kan. 285, 133 P. 841; Twist v. Twist, 91 Kan. 803, 139 P. 377.

In giving the land to his son, the testator used the expression "I will and desire that the said...