Noecker v. Noecker

• Decision Date: 07 February 1903
• Docket Number: 12,769
• Citation: 71 P. 815,66 Kan. 347
• Parties: ELLA B. NOECKER v. GEORGE B. NOECKER et al
• Court: Kansas Supreme Court

71 P. 815

66 Kan. 347

ELLA B. NOECKER v. GEORGE B. NOECKER et al

No. 12,769

Supreme Court of Kansas

February 7, 1903

Decided January, 1903.

Error from Dickinson district court; O. L. MOORE, judge. Opinion filed March 7, 1903. Affirmed.

Judgement affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. STATUTORY CONSTRUCTION--Duty of Court. It is the duty of the court, if possible, to give effect to all portions of a statute and yet make the enactment an harmonious whole.

2. WILLS--Husband and Wife--Statute Construed. Section 35a of the wills act (Gen. Stat. 1901, § 7973) enacted subsequently to the other portions of that chapter, is not without effect, nor does it repeal other sections, but finds an harmonious place in the entire act, so that under it one spouse may will away from the other one-half of his or her property without the other's consent, even where no issue is left.

3. WILLS--Where Wife Takes under the Law. Where a wife elects to take under the law, rather than by the terms of the will of her deceased husband, the will, so far as may be, remains effective, and must be administered.

4. WILLS--Trustees may Maintain Partition. Where, by the terms of a will, certain real estate was devised to trustees, to be by them sold and the proceeds divided, such trustees, may maintain an action for the partition of such real estate, the will having vested them with title.

James P. Lodge, and Welch & Welch, for plaintiff in error.

David Ritchie, for defendants in error.

OPINION

CUNNINGHAM, J.:

This was an action by the executors of the will of William Noecker to partition a tract of land in Dickinson county, Kansas. The plaintiff in error, the widow of William Noecker, together with a number of residuary legatees, were defendants in the action. William Noecker had been a resident of the state of Illinois, where he died, leaving no children. His will, which was proved in the county of his residence, disposed of his Kansas property by giving to his executors power: (1) To sell such portions thereof as should be necessary to pay his debts and funeral expenses, not paid from the proceeds of his moneys and credits; (2) to rent the same and pay the proceeds to his widow during her lifetime; and (3) to sell, within four years after the death of his widow, and divide the proceeds among certain named beneficiaries, the same being his nephews and nieces. Mrs. Noecker elected to take under the law and not under the will. A certified copy of the will was duly admitted to probate in Dickinson county. The petition in the action did not affirmatively show, and there is no claim made, that the proceeds of any portion of this real estate is needed to pay debts. Upon these facts, as shown in the petition and answer filed in the case, the plaintiffs asked for judgment and partition of the land as prayed for, to wit, one-half to the trustees, and one-half to Mrs. Noecker. This was accordingly done by the court below and its action is assigned for error here.

Mrs Noecker claims, first, that, under these facts, she is the absolute owner of the entire property; that while section 7973 of the General Statutes of 1901, reads that "any married person having no children may devise one-half of his or her property to other persons than the husband or wife," yet the provisions of sections 7937, 7972, 7979 and 7980 of said chapter, and section 17 of the act concerning descents and distributions (Gen. Stat. 1901, § 2519), compel us to add to said section substantially the words, "provided such husband or wife shall consent thereto"; that is, that the right given in section 7973 is subject to the right of election contained in sections 7979 and 7980; that, in short, section 7973, which was passed in 1883, served but to declare the law as it had theretofore existed, and as it had been construed in Barry v. Barry, 15 Kan. 587. We find ourselves unable to agree to this contention. The case of Barry v. Barry was decided in 1875, and declared the law to be, as it then existed, that a widow whose husband had died without issue would take the whole of the husband's estate in a case where he had made a will and she elected to take under the law. Thereafter, in 1883, section 7973 was passed. While this section does not in terms say that a husband or wife may devise one-half even as against the election of the other, still such is the clear purpose of the act. It must be presumed that the legislature would not do a vain...