Postlethwaite v. McCabe

Decision Date09 March 1918
Docket Number21,131
Citation102 Kan. 619,171 P. 773
PartiesROBERT C. POSTLETHWAITE, as Administrator, etc., Appellee, v. FRANK P. EDSON and JESSIE L. MCCABE, Appellants
CourtKansas Supreme Court

Decided January, 1918.

Appeal from Shawnee district court, division No. 2; GEORGE H WHITCOMB, judge. Opinion on rehearing filed March 9, 1918. Former opinion adhered to. (For original opinion see ante, p 104.)



1. WILL--Not a Conveyance or Alienation of Real Estate. Rule followed that a will is not a conveyance or an alienation of the real estate described therein.

2. SAME--Devise of Homestead--Rights of General Creditors. "Creditors," as the expression is used in section 11752 of the General Statutes of 1915 concerning wills, means and includes general creditors.

Eugene S. Quinton, of Topeka, for the appellants.

T. F. Garver, and R. D. Garver, both of Topeka, for the appellee.

West J. Porter, J. dissenting



A rehearing was granted on the homestead question only, and for the third time this controversy has received somewhat unusual attention. (Postlethwaite v. Edson, 98 Kan. 444, 155 P. 802; Id. 102 Kan. 104.)

The right to will away real estate is not inherent, but is purely a creature of legislation. The legislature may give, and the legislature may take away.

"The legislature has plenary power to withhold or grant the right, and, if it grants it, may make its exercise subject to such regulations and requirements as it pleases." (40 Cyc. 997.)

When this matter was attended to in this state, it was enacted that one may give and devise property by will, "subject nevertheless to the rights of creditors and to the provisions of this act." (Gen. Stat. 1915, § 11752.) This is all the power that has ever been given. The legislature has not added, and the courts cannot add, thereto.

Section 9 of article 15 of the constitution sets apart certain property as a homestead which "shall not be alienated without the joint consent of the husband and wife, when that relation exists. . . ." Section 8 of the descents and distributions act (Gen. Stat. 1915, § 3831) sets apart one-half in value of the husband's estate of which the wife has made "no conveyance." In Comstock v. Adams, 23 Kan. 513, the sole question for consideration, as expressly stated in the opinion, was whether a will is a conveyance under the section last referred to, and after painstaking consideration the court unanimously held that it is not.

In Vining v. Willis, 40 Kan. 609, 20 P. 232, the point was whether a will is an alienation under the section of the constitution referred to, and after a still more elaborate discussion it was unanimously held that it is not, and Comstock v. Adams was followed with approval. In Barbe v. Hyatt, 50 Kan. 86, 31 P. 694, these two decisions were referred to and reaffirmed. The first of these was rendered in 1880, the second in 1889, and the third in 1892, and in all these years neither the people, the legislature, nor the courts have sought to change the rule of property thus embedded in the judicial system of this state. While loose expressions touching wills may be found, in no instance has this court decided anything to impair the force of this rule.

In Martindale v. Smith, 31 Kan. 270, 1 P. 569, it was said (p. 273) that when death occurs the title to the property of the person dying must be transferred to some person, that it cannot remain in the deceased, and the will simply designates where the title shall go.

In Vining v. Willis, 40 Kan. 609, 20 P. 232, it was said that a will never divests the owner of his property; that when the testator dies the devisee mentioned in the will takes the property by virtue of the statutes.

"It would not be the will, however, but death that would take the property from the testator; and it would be death, the statutes, and the will, all operating together, that would confer the property upon the devisee." (p. 611.)


"It is not the will alone, however, that determines where the title shall go, for the will operating alone would be powerless. It is the will, and death, and the statutes, operating together, that determine where the property shall go. Indeed, it is the statutes which give force and efficacy to all." (p. 612.)

After going over the matter again at length it was said:

"We think it appears from the statutes and from the decisions of the supreme court, that the legislature, the governor, and the supreme court, have always been of the opinion that the aforesaid constitutional provision has nothing to do with the question as to where the title to real estate, occupied as a homestead, shall go after the death of the owner of such real estate. It is evident that it has always been their opinion that the word 'alienated' as used in said provision means only a passing of some estate, title or interest in the homestead from the owner during his lifetime, and that it has no reference whatever to where his title or interest shall go after his death. These statutes and decisions have all the force and effect of a contemporaneous exposition of the true intent and meaning of this constitutional provision." (p. 620.)

A homestead always contemplates a place for the residence of a family, and its character as exempt property is derived only from the fact of such occupancy. In Cross v. Benson, 68 Kan. 495, 75 P. 558, the doctrine of family was expanded and applied to the case of a widow occupying the homestead after the death of her husband. This was carried still further in Weaver v. Bank, 76 Kan. 540, 94 P. 273, holding that the homestead right may persist in the survivor without regard to which held the legal title or the time when the indebtedness to pay which it was sought to be sold was incurred. Another modification was made in Towle v. Towle, 81 Kan. 675, 107 P. 228, two members of the court dissenting, wherein it was decided that a sale in partition is not a forced sale, and that distribution of the homestead may be had by the adult children while it is still occupied by the widow.

It is now argued that another enlargement should be made, and that the property in this case, not claimed to have been occupied by the present owners as a homestead, should be deemed exempt from the debt sought to be enforced against it. Of course this means a reversal of the decisions referred to and the establishment of the contrary rule. It is argued that creditors should be construed to mean those holding claims which could in the lifetime of the testator be enforced against the property. In other words, that the power to devise given by the legislature does not mean subject to the rights of creditors generally, or general creditors, which would be its natural meaning, but subject only to the rights of what might be called actual or potential lien holders, such as materialmen or those holding claims for the purchase price. But the same legislature which thus restricted the making of wills enacted that the homestead should not be exempt from sale for taxes, improvements, purchase price, or liens given by consent of both husband and wife. Hence, creditors other than these must have been meant when using the phrase, "subject . . . to the rights of the creditors." Of course the phrase does not mean creditors whose eyes could not be turned toward the homestead, for all understand a homestead to be exempt from the claims of general creditors.

The phrase "subject . . . to the rights of creditors" must, according to the act on statutory construction, be construed according to the context "and the approved usage of the language." (Gen. Stat. 1915, § 10973, subdiv. 2.) If only actual or potential lien holders were intended there was no occasion to use this language at all, because they were already protected by the constitution and the statute as above shown. Hence, the argument that only creditors who could have looked to the homestead in the life of the intestate were intended, falls to the ground. In Monroe v. May, Weil & Co., 9 Kan. 466, Mr. Justice Brewer, in speaking of the homestead right, said:

"A man may sell his homestead, and give good title, no matter how many judgments may be standing against him." (p. 475.)


"Nor is there anything in the transaction of which creditors can complain, or upon which they can base any equity. . . . If placing the title in the wife's name had removed so much property from the reach of their claims, it might have given them some pretense for insisting that no more property should be thus removed. But where the homestead is alike exempt, whether in the husband's or wife's name, we fail to see why placing it in the wife's name gives the creditors a right to call that a gift which the parties made a payment." (p. 476.)

It is quite manifest that in this discussion general creditors were the ones referred to. In Colby v. Crocker, 17 Kan. 527, the plaintiff, who had loaned the owner $ 800 for which he had no security, sought to require a mortgagee to first exhaust the homestead property. It was said:

"The homestead-exemption laws provide in effect that the homestead shall be exempt from all debts except for purchase-money, taxes, improvements, and liens given by the consent of both husband and wife. Now the plaintiff's claim does not fall within any of these exceptions." (p. 531.)

He, therefore, must have been a general creditor like the plaintiff in the case before us. In La Rue v. Gilbert, 18 Kan. 220, a judgment was obtained against a homestead owner whose family continued to occupy after his death. The holder sought to require the mortgagee of the homestead and other real estate to exhaust the homestead property first. This was refused. Mr. Justice Brewer said:


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