McNutt v. McComb

• Decision Date: 11 November 1899
• Docket Number: 11,263
• Citation: 58 P. 965,61 Kan. 25
• Parties: MARGARET J. MCNUTT et al. v. N. O. P. MCCOMB et al
• Court: Kansas Supreme Court

58 P. 965

61 Kan. 25

MARGARET J. MCNUTT et al. v. N. O. P. MCCOMB et al

No. 11,263

Supreme Court of Kansas

November 11, 1899

Decided July, 1899.

Error from Shawnee district court; Z. T. HAZEN, judge.

Judgment affirmed.

John Guthrie, Edwin A. Austin, and C. M. Foster, for plaintiffs in error.

A Bergen, for defendants in error.

OPINION

SMITH J.:

This case depends on the construction to be given to the will of James Burke, deceased. The will reads:

"Item first: I hereby devise and bequeath unto my beloved wife Lucinda Burke, subject to the payment of my debts, funeral expenses, and other expenses, all my estate, real and personal and mixed.

"Item second: At the death of my said wife, I direct that whatever may then remain of my said estate be divided between my three children, Margaret J. McNutt, Alonzo Burke, and Sophia Whitmore, and my grandson James Whitmore, as follows: One-third to Margaret J. McNutt, one-third to Alonzo Burke, and the other third to be equally divided between Sophia Whitmore and James Whitmore above mentioned.

"I hereby direct that no inventory or appraisement of my property, real or personal, be required, and that no bond shall be required of my executrix.

"I hereby constitute and appoint my wife, Lucinda Burke, executrix of this my last will, and authorize and empower her to sell in such manner and upon such terms as she deem proper, at public or private sale, any or all of my personal property, and also in like manner to sell as much of my real estate as may be necessary for the payment of my debts, and convey the same in fee simple, without an order of court, as fully as I in my lifetime could do."

The court below held that by the terms of said will a fee-simple title to the real estate in controversy passed to the wife, Lucinda Burke, and not a life-estate. If the construction given to the instrument by the trial court be correct, then no other question need be considered.

By the first item the testator devises to his wife, in unmistakable terms, a fee-simple title to all his real estate, in language free from ambiguity. The use of the word "heirs," or other words of inheritance or perpetuity, are not necessary under our statute to create and convey an estate in fee simple. (Gen. Stat. 1897, ch. 117, § 2; Gen. Stat. 1899, § 1152.) Section 54, chapter 110, General Statutes of 1897 (Gen. Stat. 1899, § 7634), reads:

"Every devise of real property in any will shall be construed to convey all the estate of the testator therein which he could lawfully devise, unless it shall clearly appear by the will that the testator intended to convey a less estate."

The words "subject to the payment of my debts, funeral expenses and other expenses" create no charge upon the estate by implication, and do not tend to restrict or to limit it. Under our statutes, the whole property of the decedent, not exempt, both real and personal, is charged with the payment of debts. The language used by the testator is the language of the law. (Starke v. Wilson, 65 Ala. 576; Newsom v. Thornton, 82 id. 402, 8 So. 261.) The words employed in the first item are wholly inconsistent with the idea that any less than a fee-simple estate was granted.

It is insisted, however, that the succeeding items in the will define and limit the estate devised to Lucinda Burke, reducing it from an absolute ownership to an estate for life. The rule is thus stated by Chancellor Kent:

"If, therefore, there be an absolute power of disposition given by the will to the first taker, as if an estate be devised to A. in fee, and if he dies possessed of the property without lawful issue, the remainder over, or remainder over the property which he, dying without heirs, should leave, or without selling or devising the same; in all such cases the remainder over is void as a remainder, because of the preceding fee; and it is void by way of executory devise, because the limitation is inconsistent with the absolute estate, or power of disposition expressly given, or necessarily implied by the will." (4 Kent 270.)

In the case of Johnson et al. v. Johnson, 51 Ohio St. 446, 38 N.E. 61, quoted from by counsel for plaintiffs in error, accompanying the words indicating the granting of a fee-simple estate were the following: "With full power to bargain, sell, convey, exchange or dispose of the same as she may think proper." The added language influenced that court in determining that a life-estate was meant, for the reason that the use of the same "creates a slight inference that something less than a fee was intended." The last clause of the will does not, in our judgment, tend to weaken the conclusion that a fee-simple estate was intended by the first item. The testator, no doubt, believed that an order of sale by the probate court was necessary to enable his wife to sell the property for the payment of debts unless directions were given by him to the contrary. The opinion in the case of Smith v. Bell, 6 Peters 68, is quoted at length by counsel for plaintiffs in error. It presents a strong argument in support of their construction of the will. In commenting on this case, in Gifford & others v. Choate, 100 Mass. 343, 346, it was said:

"The authority of the decision is somewhat impaired by the circumstance that no counsel were heard on behalf of the party against whom it was made, and the attention of the court does not seem to have been drawn to the authorities in favor of the opposite conclusion."

The same comment was made on the case in Campbell v. Beaumont, 91 N.Y. 464, 468. The case of Jones v. Bacon, 68 Me. 34, 28 Am. Rep. 1, is quite similar to the one at bar. A testator, after making sundry specific bequests, proceeded as follows:

"And as to the residue of my estate, after payment of my just debts, I give and bequeath the same to my beloved wife. . . . And lastly, I further direct if there be any of my said estate left after the decease of my said wife, then the said property left be equally divided between G. and T."

The court said:

"But the remainder, as we have seen, has been already disposed of. It was the wife's, charged with the payment of just debts. She had the uncontrolled power of disposal of it. The last clause is not to be regarded as a withdrawal of what had just been devised. When property has been devised absolutely, and with no restrictions upon the gift, the court will be slow in giving such a construction to subsequent words as will defeat the absolute estate just devised. 'A valid executory devise cannot subsist under an absolute power of disposition in the first taker.' (4 Kent 270.) Here was an absolute power of disposition in the wife."

In the case at bar the wife had an absolute and uncontrolled...