Pfleiderer v. Brooks

• Decision Date: 12 February 1927
• Docket Number: 27,101
• Citation: 122 Kan. 647,253 P. 549
• Parties: FREDERICK G. PFLEIDERER, Appellant, v. LELA ETTA BROOKS and F. E. BROOKS, her husband, and J. MAUD MOWER (W. M. HILL), Appellees
• Court: Kansas Supreme Court

253 P. 549

122 Kan. 647

FREDERICK G. PFLEIDERER, Appellant, v. LELA ETTA BROOKS and F. E. BROOKS, her husband, and J. MAUD MOWER (W. M. HILL), Appellees

No. 27,101

Supreme Court of Kansas

February 12, 1927

Decided January, 1927.

Appeal from Jewell district court; WILLIAM R. MITCHELL, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

DESCENT AND DISTRIBUTION--Right of Surviving Spouse--Necessity of Residence-Statute Construed--The statutory provision (R. S 22-108) relating to the descent of land to one spouse upon the death of the other, provides that one-half of such land shall be set apart in fee simple to the survivor, but it contains the additional proviso that the survivor "shall not be entitled to any interest under the provisions of this section in any land to which the husband has made a conveyance when the wife at the time of the conveyance is not and never has been a resident of this state." The statute is held to be legislation regarding the marital relation and the phrase "never has been a resident of this state," is interpreted to mean that the deceased spouse had not been a resident of the state during the existence of the marriage relation.

R. W. Turner, D. F. Stanley, R. B. Turner, all of Mankato, and H. A. Brubaker, of Nelson, Neb., for the appellant.

D. M. McCarthy, L. E. Weltmer, both of Mankato, and Jesse D. Wall, of Wichita, for the appellees.

OPINION

JOHNSTON, C. J.:

In this action Frederick Pfleiderer asked for the partition of the real property of Elizabeth Gregory Pfleiderer, his deceased wife. She had two daughters, J. Maud Mower and Lela Etta Brooks, who contended that plaintiff had no interest in the property, and they having prevailed plaintiff appeals.

The plaintiff and Elizabeth Gregory Pfleiderer were married on June 24, 1921, at Salina, Kan., when he was about seventy-six years of age, and she was about seventy-three. He had several children by a former wife and she had two daughters by a former husband. Each owned property of about the same value at the time of the marriage. She had a half section of land in Jewell county, which included the homestead of herself and her former husband. Prior to the marriage she was a resident of Kansas, and while he had resided in this state in his earlier years, it appears that he left the state about thirty-nine years before the marriage and had not been a resident of the state since that time. After their marriage she went with him to Superior, Neb., where they built and maintained a home until her death on June 13, 1925. It was claimed by defendants that prior to their marriage an antenuptial contract was made, the validity of which is challenged by plaintiff. It contained among other things a provision that each should hold his or her property independent of the other, and upon the death of either the other should not have nor assert any interest, estate or title in the property of the other under the laws of any state by reason of survivorship, and that the agreement should stand as a consent in writing by each to any will or conveyance made by the other. On February 8, 1924, Elizabeth Gregory Pfleiderer executed a conveyance of her land to her daughters, reserving to herself a life estate in it. Plaintiff did not join in the execution of the deed, and it was delivered to Maud Mower on July 10, 1924, and to Lela Etta Brooks on March 5, 1925. It was filed for record on June 13, 1925. It is further disclosed in the record that on June 24, 1924, Mrs. Pfleiderer had made a will by which she gave plaintiff $ 25, reciting in the will that this bequest was made on consideration of an antenuptial contract, which the parties had made and which plaintiff had destroyed without the testator's consent subsequent to the marriage, and there was attached to the will an unsigned copy of the antenuptial contract. In the will she recognized and confirmed the deed executed to her daughters on February 8, 1924, and gave all the residue of her property of every kind to her two daughters in equal parts. The will was admitted to probate in Nebraska after a trial in the district court. That court excluded the copy of the antenuptial contract, holding that proper proof of its execution had not been made and that such a document without proof of execution could not be incorporated as a part of the will. The will, however, was admitted to probate on other grounds. Shortly after the death of Mrs. Pfleiderer, the plaintiff brought this action claiming that he was entitled to a half interest in the land owned by her under the law of descents and distributions.

The controlling question in the case is the interpretation of R. S. 22-108, which provides:

"One-half in value of all the real estate in which the husband, at any time during the marriage, had a legal or equitable interest, which has not been sold on execution or other judicial sale, and not necessary for the payment of debts, and of which the wife has made no conveyance, shall, under the direction of the probate court, be set apart by the executors or administrators as her property, in fee simple, upon the death of the husband, if she survives him: Provided, That the wife shall not be entitled to any interest, under the provisions of this section, in any land to which the husband has made a conveyance, when the wife at the time of the conveyance is not and never has been a resident of this state. Continuous cohabitation as husband and wife is presumptive evidence of marriage, for the purpose of giving the right aforesaid."

This provision is followed by another which declares:

"All the provisions hereinbefore made in relation to the widow of a deceased husband shall be applicable to the husband of a deceased wife. Each is entitled to the same rights or portion in the estate of the other, and like interests shall in the same manner descend to their respective heirs. The estates of dower and by courtesy are abolished." (R. S. 22-127.)

The plaintiff did not join in the execution of the deed conveying the land to the daughters of his wife, and he contends that as she...