Powers v. Scharling

• Citation: 67 P. 820,64 Kan. 339
• Decision Date: 08 February 1902
• Docket Number: 12,105
• Parties: MARTHA POWERS et al. v. ALBERT D. SCHARLING
• Court: United States State Supreme Court of Kansas

67 P. 820

64 Kan. 339

MARTHA POWERS et al. v. ALBERT D. SCHARLING

No. 12,105

Supreme Court of Kansas

February 8, 1902

Decided January, 1902.

Error from Dickinson district court; O. L. MOORE, judge.

Judgment reversed and remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONVEYANCES -- Writing both Contractual and Testamentary. A writing properly drawn, signed witnessed and acknowledged may be contract in part and testamentary in part.

2. CONVEYANCES -- Life-estate in Grantor -- Other Reservations, A conveyance of real estate otherwise legal is neither void nor revocable because it is subject to a life-estate in the grantor, the payment of his debts, expenses of his last illness and funeral, and certain bequests.

3. CONVEYANCES -- Description of Property -- Extrinsic Evidence. A deed is not void for want of description when by extrinsic evidence it may be made certain.

Edwin A. Austin and R. H. Kane, for plaintiffs in error.

Thomas Dever, for defendant in error.

GREENE J., DOSTER, C. J., JOHNSTON, SMITH, JJ., concurring.

OPINION

GREENE, J.:

Martha Powers, for herself, and as trustee for Harriet Campbell, sued in the district court of Dickinson county in ejectment for the possession of certain described real estate.

Their title is a written instrument incorporated into the petition by proper averments, and called "The last will and testament of David Sebrill." The deceased, after providing for the payment of his debts, including those of his last illness and funeral expenses and the probating of his will, gives and bequeaths to one of his sons, naming him, all the indebtedness due from said son to him at that time, and directs his executor to deliver to said son an acquittance, and to his three remaining sons, naming them, five dollars each.

The instrument then reads:

"Eighth. I give, devise and bequeath unto my beloved daughter Harriet Campbell, as well in consideration of the natural love and affection I bear her as in consideration of the services she has rendered me when under no legal obligation to do so, both before and after she became of age, in health and sickness, the undivided one-half of all the rest and residue of my estate, real, personal, and mixed, wheresoever situate, after the payment of the said debts, expenses, and bequests, to her and her heirs forever.

"Ninth. I give, devise and bequeath unto the said Harriet Campbell, as trustee to and for the use, benefit and behoof forever of Martha Powers, my beloved daughter, and her children, the undivided one-half of all the estate, real, personal, or mixed, of which I shall die seized or entitled to in law or equity, after the payment of the said debts, expenses, and bequests. And I direct my said daughter Harriet Campbell, as she is my daughter, to permit my said daughter Martha Powers to live upon one-half of my home place in Dickinson county, Kansas, which my two daughters aforesaid helped me to improve, as and for her homestead, if the said Martha Powers shall desire. I also empower my said daughter Harriet Campbell to sell and dispose of the said trust estate and to reinvest the funds arising therefrom in other real estate whenever in the best judgment of the said Martha Powers and also of the said Harriet Campbell the interests of the said Martha Powers and her child or children will be best subserved by such a course. . . . In case said Martha Powers desires to reside upon a part of my said home place as and for her homestead, I direct a partition to be made by and between my said two daughters in an amicable manner; but, under all circumstances, the said estate hereby created, conveyed to and vested in my said daughters shall be subject to the payment of the debts, expenses and legacies hereinbefore mentioned and described.

"Tenth. I desire and design to, and I do by this paper writing (both a will and deed) create, convey to and vest in my beloved daughter Harriet Campbell a present interest and estate in and to all the estate of which I am now or shall be at the time of my death seized or to which I am now or shall be then entitled, to the extent of one-half thereof, always, however, subject to the payment of the said debts, expenses and legacies heretofore mentioned and also to a life-estate in me for and during the period of my natural life, and this present interest and estate I make upon a good and valuable and sufficient consideration from said Harriet Campbell, in addition to the consideration of natural love and affection I bear towards her. And I further desire and design to, and I do by this paper writing (both will and deed) create, convey to and vest in said Harriet Campbell, as trustee for and to the use of said Martha Powers and her child or children, in the manner and for the purpose set forth and declared in the ninth clause hereof, a present interest and estate in and to all of the estate of which I am now or shall be at the time of my death seized, or to which I am now or then shall be entitled, to the extent of one-half thereof, always, however, subject to the debts, expenses and legacies hereinbefore mentioned and subject to a life-estate in me in the same for and during my natural life, and this present interest and estate I now here create, convey to and vest in the said Harriet Campbell to and for the use of said Martha Powers and her child or children upon good, valuable and sufficient consideration, as well as upon the consideration of natural love and affection, but this last-mentioned interest and estate is made subject to the limitations and conditions mentioned and described in the ninth clause hereof and for the purposes therein stated . . . I appoint Solon Hall to be the executor of this my last will and testament and request him to act, if he can conveniently.

"In testimony whereof, I hereunto subscribe my name and affix my seal, this 15th day of April, A. D. 1896, first erasing the name of 'Herman,' and interlining the word 'Solon' at Topeka, Kan.

DAVID [his mark x] SEBRILL."

This instrument is properly witnessed as a will and acknowledged before a notary as a deed.

To this petition the defendant below demurred. Before the...