Pittman v. Pittman

• Decision Date: 12 February 1910
• Docket Number: 16,190
• Citation: 81 Kan. 643,107 P. 235
• Parties: FRANK PITTMAN, Appellee, v. LOU B. PITTMAN et al., Appellants, and WILLIAM ROBS, as Executor, etc., Appellee
• Court: Kansas Supreme Court

107 P. 235

81 Kan. 643

FRANK PITTMAN, Appellee, v. LOU B. PITTMAN et al., Appellants, and WILLIAM ROBS, as Executor, etc., Appellee

No. 16,190

Supreme Court of Kansas

February 12, 1910

Decided January, 1910.

Appeal from Atchison district court; BENJAMIN F. HUDSON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

WILLS--Election by Widow to Take under the Law--Effect on the Devises. Where a widow, without regard to the provisions of the will of her deceased husband, elects to take under the law of descents and distributions, such election does not render the will inoperative. As between other persons the will will be enforced as near in accordance with the intention of the testator as it can be.

C. D Walker, and J. L. Berry, for the appellants.

C. S. Hull, for appellee Frank Pittman.

OPINION

SMITH, J.:

Clark Pittman, by his first wife, was the father of appellee Frank Pittman. Appellant Lou B. Pittman was his second wife, and the other appellants are his children by her. At his death he was the owner of a homestead of 160 acres, which for years had been the homestead of the family, or at least of the widow and her children, and he also owned an eighty-acre tract of land near the homestead. After making provision for his funeral expenses and debts, $ 500 of which indebtedness was secured by a mortgage on all the land, his will made the following provision for his son Frank:

"I give and bequeath to my son, Frank Pittman, by my former wife, of beloved memory, the following real property, situated in Atchison county, Kansas: The south one-half of the northeast quarter of section 26, township 6, range 19, being the eighty acres situated north of the homestead quarter and adjoining the latter; to have and to hold to him and his heirs forever; and in consideration of the liability said eighty acres of land may fall under, to pay such unsecured debts which I may leave unpaid, and which my nonexempt personal property may be insufficient to pay, it is my will that all of the said mortgage debt of $ 500, principal and interest, which now covers all my land, both said eighty acres and said homestead, shall be paid out of said homestead quarter alone, and that my son Frank Pittman shall take said eighty acres free from said mortgage."

His widow, Lou B. Pittman, is not named in the will; but one-half of all the remainder of his property, real and personal, after paying the debts and expenses, was devised and bequeathed to his children by her. It was his evident intention to leave the other one-half interest in such property to his widow. The provision for the children reads:

"I give and bequeath to my six children by my present wife--that is, to Lillie Sanders, Homer Pittman, Grace Armor, Ely C. Pittman, Mamie Pittman and Marcie Pittman, all the balance of the one-half of my entire property, real and personal, of which I may have the ownership at my death, and which may remain after the payment of the said expenses and debts, secured and unsecured, and after deducting the said bequest to my son Frank Pittman, subject to the homestead right of the widow and minor children. And I direct that said children by my present wife take said balance of the one-half of my property which I may lawfully bequeath in equal shares; and when the said homestead shall become subject to legal sale or partition it is my desire that my said wife and her said children by me shall mutually agree upon an amicable division of their respective shares in said property, either in kind or by sale thereof and division of the proceeds; but if such amicable division or partition in kind can not be effected, then I direct my executor to cause said property to be partitioned in the manner provided by law for the partition of real property."

After the death of Clark Pittman the will was probated, and the executor named in the will was appointed. At the time of his death the widow and two of the children, one of whom was still a minor, were residing upon the homestead. After the probate of the will the widow filed in the probate court an election to take all the interest in the property which she was entitled to by the law of descents and distributions, and thereafter brought a suit against Frank Pittman for an allotment to her of a one-half interest in the eighty-acre tract willed to him. She recovered judgment therein for a certain forty acres of the tract, and Frank Pittman acquiesced in the judgment and surrendered possession thereof.

This action was brought by Frank Pittman for compensation for the loss suffered by him through the allotment of one-half of the eighty acres to his stepmother which had been devised to him by the terms of the will. He alleges that the forty acres apportioned to the widow were of the value of $...