Postlethwaite v. McCabe

Decision Date11 March 1916
Docket Number19,798
Citation155 P. 802,98 Kan. 444
PartiesROBERT C. POSTLETHWAITE, as Administrator, etc., Appellant, v. FRANK P. EDSON and JESSIE L. MCCABE, Appellees
CourtKansas Supreme Court

Decided, January, 1916.

Appeal from Shawnee district court, division No. 2; GEORGE H WHITCOMB, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

WILL--Construction--Life Estate with Power of Disposal--Remainder to Children. The principal clause in a will executed by a husband and wife was as follows:

"They and each of them do hereby devise and bequeath to the other surviving, all the estate . . . of which the one dying first shall be seized, or have an estate, claim or interest therein, and to be owned and disposed of by the survivor as he or she may desire, and that upon the death of the survivor, all the estate of the survivor not disposed of by such survivor, is hereby devised and bequeathed to their children . . . in equal parts."

Held, that such devise as to any of the property of which the survivor died seized vested in such survivor a life estate with the added power of disposal, remainder to the children.

Robert C. Postlethwaite, of Jewell, T. F. Garver, and R. D. Garver, both of Topeka, for the appellant.

Joseph G. Waters, John C. Waters, and Eugene S. Quinton, all of Topeka, for the appellees.

OPINION

WEST, J.:

The plaintiff, as administrator, sued to subject certain land to the lien of a judgment recovered by the decedent in 1907. A demurrer to the answer was overruled and the plaintiff appeals.

One of the judgment debtors was Willis Edson, who, while occupying the property as a homestead, joined in making the following will:

"The undersigned, Willis Edson and Mary Edson, his wife, separately and conjointly, do hereby make and declare this instrument to be their last will and testament, hereby revoking any and all wills by them made, that is to say:

"First. They and each of them do hereby devise and bequeath to the other surviving, all the estate of every kind and character and wherever situate, personal, real and mixed of which the one dying first shall be seized, or have an estate, claim or interest therein, and to be owned and disposed of by the survivor as he or she may desire, and that upon the death of the survivor, all the estate of the survivor not disposed of by such survivor, is hereby devised and bequeathed to their children, Frank P. Edson and Jessie L. McCabe, in equal parts."

Mary Edson survived her husband, remaining in possession of the homestead during her life. She left the defendants as her sole heirs who claim no homestead rights.

The plaintiff takes the position that the will devised a life estate to Mary Edson with full power of disposition, remainder to the defendants, and if this be the proper construction it is conceded that the property is subject to be taken in this action.

On the other hand it is urged that the latter clause of the will is utterly void for two reasons, first, because repugnant to the vesting of a fee in the survivor, and second, because it merely follows the statute which would itself work a devolution of the title to the defendants upon the death of the mother. Of course, if they took a vested remainder by virtue of the will, subject to a life estate in the surviving mother, the statutory casting of descent in case of the death of the mother, while owning the fee, could not impair the will, hence the only point for determination is the construction of the instrument. It is pointed out that a will, after devising the fee, can not by a subsequent clause reduce such fee to a less estate.

"Thus, if a testator, after giving an estate in fee, proceeds to qualify the devise by a proviso or condition, which is of such a nature as to be incompatible with the absolute dominion and ownership, the condition is nugatory, and the estate absolute." (2 Jarman on Wills, p. 16.)

McNutt v. McComb, 61 Kan. 25, 58 P. 965, is relied on. There the first item gave to the wife all the testator's estate, real and personal and mixed. The second item directed that whatever might remain at the death of the wife should be divided between three children and a grandson. It was held that the second item was void because inconsistent with the absolute interest vested by the first, following the rule already referred to, of which Chancellor Kent said that in all such cases the remainder over is void as a remainder because of the preceding fee, and void by way of executory devise because inconsistent with the absolute estate or power of disposition expressly given. (4 Kent's Commentaries, p. 270.) Williams v. McKinney, 34 Kan. 514, 9 P. 265, was distinguished by the fact that the two provisions were in the same sentence and were not contained in separate items of the will, and also that the second item contained qualifying words. In Safe Deposit Co. v. Stich, 61 Kan. 474, 59 P. 1082, the question was whether the words "to have and to hold during her natural life" applied to the real or to the personal property. One of the rules employed was that when several independent devises are not grammatically connected or united for the expression of a common purpose they must be construed separately; another, that a devise in absolute terms of the fee will not be limited to a less estate by repugnant or inconsistent words of a succeeding clause unless it be the manifest intention gathered from the whole instrument that it should be done, following McNutt v. McComb, supra. In Coleman v. Coleman, 69 Kan. 39, 76 P. 439, the devise was to certain children with a subsequent provision that in case either should die without heirs or legal representatives the survivors should take his portion of the estate equally. This was held to be not repugnant, and it was said:

"There was no attempt in any of these items to devise a fee-simple estate in the property to the wife, as was done in McNutt v. McComb, 61 Kan. 25, 58 P. 965." (p. 44.)

In Hurst v. Weaver, 75 Kan. 758, 90 P. 297, it was said of McNutt v. McComb:

"That will purported first to convey to the devisee an absolute estate in land, with full power of conveyance. A subsequent paragraph purported to dispose of the remnant of the estate, if any remainder at the death of the devisee. The second paragraph was held to be in substance a remainder over, and to be void." (p. 763.)

Holt v. Wilson, 82 Kan. 268, 108 P. 87, involved a bequest to a husband during his natural life, residue at his decease to an adopted son if then living, but if deceased before that time leaving child or children living, then to such child or children. It was held that the fee to the adopted son was not cut down to a mere life estate with a vested remainder by a subsequent provision that in case the adopted son should die without issue either before or after the husband's estate expired, the whole should go to another. The rule in McNutt v. McComb was substantially followed. In Overly v. Angel, 84 Kan. 259, 113 P. 1041, it was said in the opinion:

"The ordinary rule is that, where an estate is absolutely devised, any repugnant conditions in the will must yield. (McNutt v. McComb, 61 Kan. 25, 58 P. 965.)" (p. 263.)

Thornberry v. Fletcher, 91 Kan. 744, 139 P. 391, involved a will giving and devising all the property, real and personal, to the wife, and after the testator's decease the devisee to provide by will or otherwise for the transmission of the residue and remainder of the testator's estate at the devisee's death in equal shares to certain named persons. The wife accepted the bequest and agreed to pass the title as indicated. It was held that, reading the will and the contract together, the wife took the entire estate, approving the rule (p. 747) that "Where one part of a will clearly indicates a disposition in the testator to create an estate in fee it will not be restricted or cut down to any less estate by subsequent vague or doubtful expressions" announced in Holt v. Wilson, 82 Kan. 268, 108 P. 87, syl. P 1, 108 P. 87.) In Hawkins v. Hansen, 92 Kan. 73, 139, 139 P. 1022 P. 1022, it was said that each will must be construed by its own terms, and that McNutt v. McComb and Safe Deposit Co. v. Stich involved wills in which there were independent devises, and the problem was to find whether the testator intended to devise a fee absolute by the first clause or whether there was an apparent intent to connect the first with the subsequent clause limiting the first. In Bullock v. Wiltberger, 92 Kan. 900, 142 P. 950, the third paragraph of the will devised the estate, after the death of the wife, to the testator's four children. The fourth provided where the property should go in case of the death of any of such children before the death of the wife. It was urged that the third item devised the estate in fee with full power of disposition, and that the fourth was therefore repugnant and void, McNutt v. McComb and Holt v. Wilson being relied upon. These and various other decisions from this and other states were considered, and it was concluded that the fourth item was not repugnant to the third, and that it amounted to a devise of the remainder to the four children, contingent upon their surviving the testator's wife.

The plaintiff, in support of the theory that the mother took a life estate with added power to dispose of the fee and that the children took a vested remainder, cites Allen v Allen, 28 Kan. 18; Williams v. McKinney, 34 Kan. 514, 9 P. 265; Ernst v. Foster, 58 Kan. 438, 49 P. 527, and Greenwalt v. Keller, 75 Kan. 578, 90 P. 233. Allen v. Allen is to the effect that a will like the one in question amounts to the several will of the husband. Williams v. McKinney involved a will giving the property to the wife for her sole use...

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