Postlethwaite v. McCabe

Decision Date08 December 1917
Docket Number21,131
Citation102 Kan. 104,171 P. 769
PartiesROBERT C. POSTLETHWAITE, as Administrator, etc., Appellee, v. FRANK P. EDSON and JESSIE L. MCCABE, Appellants
CourtKansas Supreme Court

Decided July, 1917.

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

Judgment modified and cause remanded.



1. CONSTRUCTION OF WILL--Life Estate--Remainder to Children. The former opinion (Postlethwaite v. Edson, 98 Kan. 444, 155 P. 802) remains as the deliberate holding of this court.

2. SAME -- Judgment against Testator -- Homestead -- Land Subject to Payment of Testator's Debts. A husband and wife mutually willed their property, including a homestead, to their survivor for life with power of disposal, remainder to their children. It was occupied by the devisors, and by the surviving wife until her decease, the children then having homes elsewhere and not occupying the land devised. A judgment obtained against the father was kept alive as to his estate by revivor against his administratrix. Held, that the children took the land freed from its homestead character, and it could by this suit be subjected to the payment of the judgment.

3. SAME. The homestead character of real estate depends on family occupancy--not on the source of title.

4. SAME--Judgment Lien--Interest of Judgment Debtor in Land. Only the interest of the judgment debtor could be appropriated, and it was error to sustain a demurrer to that part of the amended answer setting up that the homestead was acquired by the joint efforts and money of the husband and wife, and held by them as tenants in common.

5. SAME--Unambiguous Will--How Construed. The will not being ambiguous the trial court correctly refused evidence explanatory of the devisor's intentions, and properly struck from the answer allegations of what such intentions were.

6. WILL--Not Alienation of Homestead. The will was not an alienation or conveyance of the homestead.

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

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



When this case was here before, it was stated in the brief of the plaintiff: "Defendants do not claim any homestead rights." (p. 10.) In the defendants' brief were the following statements:

"The appellants claim that the instrument is a joint will by which Mary Edson took a life estate with a remainder to Frank P. Edson and Jessie L. McCabe, and if so the property is subject to be taken in this action.

. . . .

"It is admitted that Frank P. Edson and Jessie L. McCabe . . . had never resided upon or occupied this property as a homestead for a long time prior to all matters herein presented.

. . . .

"If the absolute fee simple title and homestead right did pass, under this mutual will, upon the death of Willis Edson to Mary Edson, the survivor, then it must follow that Frank P. Edson and Jessie L. McCabe inherited that legal title and the property directly and fully and completely, from Mary Edson, against whom there were no claims or debts. From the death of Willis Edson to the death of Mary Edson, this property, as a homestead, remained clear and free from the claims of any creditors or either of them. If so, then the legal title to this homestead having vested upon the death of Willis Edson in Mary Edson, that too must have remained clear and free, with the homestead right, from the claims of creditors, there being no claims or debts of Mary Edson at her death. The same unincumbered title and property must of necessity have passed unincumbered to the heirs, Frank P. Edson and Jessie L. McCabe. This conclusion is inevitable, if, as a matter of law the legal title to this homestead, by virtue of this mutual will, passed unincumbered to Mary Edson.

. . . .

"So, in this case, under the mutual will, the homestead and legal title thereto vested in the survivor clear and free from the debts of the deceased husband. Having once, then, vested free from debts in an innocent party or purchaser, it could not be divested." (pp. 6, 9, 12, 17.)

These quotations are made to demonstrate that the controversy when first here centered on the question whether the survivor took a fee or a life estate with power of disposal, remainder to the children, and that it was then insisted that if the former, the homestead character of the land remained even when inherited by the children, who did not claim to occupy it as a homestead. Hence in the opinion (Postlethwaite v. Edson, 98 Kan. 444, 155 P. 802) it was said:

"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." (p. 445.)

In the elaborate petition for a rehearing there was no complaint of this statement.

Near the close of the opinion it was said:

"It is fairly clear that the intention was that the survivor should have complete dominion over the estate during her life, including the full power of disposition, but that as she would be likely to retain the estate or portion thereof such portion was to vest personally in the children to take effect at her death, that is, the present estate in such portion was to vest in her for life with the power of disposition, remainder to the children." (p. 451.)

This conclusion, reached after a painstaking examination and consideration, we are satisfied with and it must remain as the deliberate holding of this court.

The case was first here on appeal from an order overruling a demurrer to the answer. When it reached the lower court the defendants amended their answer, parts of which were stricken out on motion of the plaintiff and a demurrer to the remainder was sustained, from which orders this appeal is taken. Hence, the question now before us is the claimed error in such ruling. The parts stricken out amounted to an allegation that the Edsons talked over the making of the will and expressed their intentions and desires, counseled with an experienced lawyer who drew the instrument and suggested a certain addition with which the testators were pleased. In other words, the trial court refused to permit the defendants to go into the conversations and intentions of the makers of the will, on the theory doubtless that it is plain on its face and needs no extrinsic aid for its proper construction. The remainder of the amended answer pleaded the homestead character of the land devised while occupied by the parents or their survivors, the separate homes elsewhere occupied by the defendants, that the homestead was procured by the joint efforts of the devisors and held by them as tenants in common.

Error is assigned on sustaining a demurrer to all of the remaining answer except the general denial, because the judgment of the plaintiff was never a lien on this property; because the judgment was not against Mary Edson, the joint owner with her husband of the homestead; because the will is ambiguous and susceptible to explanation of the intention of its makers, and because it carried a fee to their survivor. The last reason is disposed of by the former decision. The first may be conceded, this suit being brought for the very purpose of subjecting the land to the payment of the plaintiff's judgment, which would be idle if it were already a lien thereon. This leaves only the second and third for consideration--the effect of the alleged one-half or joint ownership by Mrs. Edson, and the claimed ambiguity of the will.

A "partial transcript" before us contains the following:

(Counsel for plaintiff): "It is admitted that the title of record to the lots described in the petition was in Willis Edson at the time of his death and at that time and some time previous said premises had been occupied by Willis Edson and his wife as their residence and homestead.

(Counsel for defendants): "That is all right.

(Mr. G.): "It is further admitted Mary Edson elected to take under the will as probated, and thereafter, in April, 1914, died without having made any other disposition of said property.

(Mr. Q.): "That last statement in there I want taken out, 'without having made any other disposition of her property.'

(Mr. G.): "I offer in evidence the original answer filed in this case by the defendants, which states some of these facts.

"I offer the inventory filed in the probate court by Mary Edson as administratrix of the estate of Willis Edson, deceased.

(Mr. Q.): "I object to it as incompetent, irrelevant and immaterial and not the best evidence.

(The Court): "Overruled.

. . . .

"The inventory in question is in substance as follows, to wit:

"I, Mary Edson, residing at Topeka, Kansas, administrator of the estate of Willis Edson, deceased, do hereby make and return upon oath the following inventory of all the moneys of the deceased which are by law to be administered and which has come into my possession or knowledge and also of all the real estate of the deceased. I further declare upon oath that the estate of said deceased consists only of the property herein scheduled and listed, to wit: Except household goods exempt under the law.

. . . .

"Lots 246 and 248 Eighth avenue, Topeka, Shawnee County, Kansas, $ 3,750."

But aside from all this, and conceding for the moment only that the property was acquired and owned by the parents as alleged, it was still the subject of their testamentary direction, and as already construed their mutual will gave to the survivors a life estate with...

To continue reading

Request your trial
15 cases
  • Dyal v. Brunt
    • United States
    • Kansas Supreme Court
    • 10 Marzo 1942
    ... ... by its own terms"; Koenig v. Koenig, 92 Kan ... 761, 142 P. 261; Bullock v. Wiltberger, 92 Kan. 900, ... 142 P. 950; Postlethwaite v. Edson, 98 Kan. 444, 155 ... P. 802; Bryant v. Flanner, 99 Kan. 472, 162 P. 280, ... and perhaps in some other cases. In Morse v. Henlon, ... ...
  • Smyth v. Thomas
    • United States
    • Kansas Supreme Court
    • 4 Marzo 1967
    ... ... 74, 84, 340 P.2d 907; Baldwin v. Hambleton, 196 Kan. 353, 411 P.2d 626.) See, also, Postlethwaite v. Edson, 102 Kan. 104, 171 P. 769, L.R.A.1918D, 983, and Guthrie v. Guthrie, 130 Kan. 433, 435, 286 P. 195 ...         In passing, I feel ... ...
  • Cole v. Coons
    • United States
    • Kansas Supreme Court
    • 5 Abril 1947
    ... ... 521, 77 P. 263; Mitchell v. Mitchell, 69 Kan. 441, ... 443, 77 P. 98; Smith v. Landis, 93 Kan. 453, 455, ... 144 P. 998; Postlethwaite v. Edson, 102 Kan. 104, ... 108, 171 P. 769, L.R.A.1918D, 983; Brigham v ... Pfister, 151 Kan. 991, 101 P.2d 869; In re Estate of ... Casey, ... ...
  • Postlethwaite v. McCabe
    • United States
    • Kansas Supreme Court
    • 9 Marzo 1918
  • Request a trial to view additional results
1 books & journal articles
  • Kansas Homestead Law
    • United States
    • Kansas Bar Association KBA Bar Journal No. 65-04, April 1996
    • Invalid date
    ...Kan. 1972). [FN289]. Vining v. Willis, 40 Kan. 609, 20 P. 232 (1889). [FN290]. See supra section IV.A. [FN291]. Postlethwaite v. Edson, 102 Kan. 104, 171 P. 769, aff'd on reh'g, 102 Kan. 619, 171 P. 769 (1917). [FN292]. Postlethwaite v. Edson, 102 Kan. 619, 624, 171 P. 769 (1917) (dictum). ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT