National Life Ins. Co. of Montpelier, Vt. v. Watson

• Citation: 44 P.2d 269,141 Kan. 903
• Decision Date: 03 May 1935
• Docket Number: 32269.
• Parties: NATIONAL LIFE INS. CO. OF MONTPELIER, VT., v. WATSON et al.
• Court: Kansas Supreme Court

44 P.2d 269

141 Kan. 903

NATIONAL LIFE INS. CO. OF MONTPELIER, VT., v. WATSON et al.

No. 32269.

Supreme Court of Kansas

May 3, 1935

Syllabus by the Court.

Husband although joining in execution of joint, mutual, and reciprocal will with wife, and electing to take under it after wife's death, could mortgage his own property during his lifetime, notwithstanding under will certain children of joint makers were to receive whatever realty father owned at time of his death.

The terms of a joint, mutual, and reciprocal will of a husband and his first wife examined, and held that, by joining in its execution and electing to take under its terms, the surviving husband did not disable himself to mortgage his own property during his lifetime, although by the terms of the will certain children of the joint makers who are named in the will are to receive whatever real property their father may be seized of at the time of his death; and held, also that the judgment in foreclosure which declared that the mortgage executed by the survivor and his second wife was a first lien on the property covered by its terms was correct.

Appeal from District Court, Mitchell County; William R. Mitchell Judge.

Action by the National Life Insurance Company against Martin Childers and another, wherein Luella Watson and others intervened. Judgment for plaintiff, and the interveners appeal.

R. L Hamilton, of Beloit, for appellants.

George B. Young, of Montpelier, Vt., J. Arthur Myers and Byron M. Gray, both of Topeka, for appellee.

DAWSON Justice.

This was an action to foreclose a mortgage on 100 acres of Mitchell county land.

The only defense was interposed by seven grown children of the mortgagor, whose claims of interest were based on the following facts:

Martin Childers and Beatrice Childers, parents of the defendant interveners, who lived as husband and wife for fifty years, made a joint, mutual, and reciprocal will, in which they devised to each other as survivor all their personal property, and:

"III. We, as husband and wife further direct and provide, as to our real property, and we do now give, devise and bequeath to each other as the survivor may be a life estate in and to all the real property of which we or either of us may die seized or possessed. * *

"V. We further direct and provide, subject always to the life estate in all the real estate herein and hereby given, devised and bequeathed by us and either of us to the other as the survivor may be, we now do jointly, mutually and severally hereby give and devise the said real estate to our other sons and daughters, the same to be divided between them share and share alike, namely, Luella Watson, Ernest Childers, Edward C. Childers, Maude Whitmore, Hattie O'Loughlin, Claude Childers and Lettie Walters. ***"

Some three years after the execution of this joint will Beatrice died. The will was probated, and her surviving husband elected to take under its terms. He thereby acquired the personal estate of Beatrice, which included $1,000 in baby bonds. He thereby also acquired a life estate in 20 acres of land on which was the family domicile, the title to which stood in the name of Beatrice. Martin himself held the title to the 100 acres in controversy and to one or two other tracts of real...