Schott v. Schott

• Decision Date: 04 May 1929
• Docket Number: 28,719
• Citation: 276 P. 823,128 Kan. 262
• Parties: EMMA SCHOTT v. GERTRUDE SCHOTT, and W. M. CLARK, as Executor, etc., Intervener, Appellees; OTTO SCHOTT et al., Appellants
• Court: Kansas Supreme Court

276 P. 823

128 Kan. 262

EMMA SCHOTT v. GERTRUDE SCHOTT, and W. M. CLARK, as Executor, etc., Intervener, Appellees;

OTTO SCHOTT et al., Appellants

No. 28,719

Supreme Court of Kansas

May 4, 1929

Decided January, 1929.

Appeal from Douglas district court; HUGH MEANS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WILLS--Legacies--Property Charged. Where a testator made specific monetary bequests to her two sons and devised her real estate to her daughter without intimating that such bequests were to be charged against the real estate, such bequests were payable only out of the testator's personal estate, and the real estate devised to the daughter cannot be subjected to forced sale to satisfy them--following Warlick v. Boone, 120 Kan. 148, 242 P. 135.

2. SAME--Intention of Testator--Evidence. Where the intention of the testator is plainly derivable from the text of the will itself, evidence aliunde is not admissible to establish that intention nor to modify the language of the testament.

John J Riling and Edward T. Riling, both of Lawrence, for the appellants.

C. A. Smart, of Lawrence, for Gertrude Schott, and W. M. Clark, intervener.

OPINION

DAWSON, J.:

This appeal presents for review the question whether certain monetary bequests in the will of Mary Schott in favor of her two sons were chargeable upon the real estate which she devised to her daughter, it having developed that Mary's personal estate is insufficient to satisfy them.

The pertinent parts of the will and codicil read:

"Third. I give to my daughter Emma five dollars and the note of $ 50 that she owes me.

"Fourth. I give to my son Otto five dollars and the note of $ 100 that he owes me.

"Fifth. I give to my son Hugo three hundred dollars and the note of $ 100 that he owes me. . . .

"Sixth. I give to my daughter Gertrude all the balance of my estate, personal, real or mixed. The one hundred sixty acres of land on which I live belonged to my husband, and at his death I inherited one-half interest in the same and the [five] children inherited the other half. I have since purchased the interest of Otto and Hugo, and it is my intention to convey hereby to Gertrude all my interest in said real estate, including that purchased from Otto and Hugo.

. . . .

"Codicil No. I: I hereby change clause 'five' of within will to read: 'Fifth. I give to my son Hugo the note of $ 100 he owes me. . . .'

"Codicil [No. III]: I, Mary Schott, of Douglass county, Kansas, hereby direct and devise that my bequests in my last will and testament, pertaining to my sons Otto Schott and Hugo Schott, be increased from the sum of ($ 5) five dollars each to said Otto Schott and Hugo Schott to ($ 500) five hundred dollars to each Otto and Hugo Schott. I feel, in justice to them and to myself, that if they had not sold me their one-tenth interest in the farm to me, after their father Fred Schott died intestate more than twenty years ago, they would, from the increase in value, receive double the amount now of what they did receive at the time of their sale to me."

Mary's personal estate realized $ 1,122.28. Lawful charges thereon had reduced that amount to $ 495.46 and the notes mentioned in the will; and costs and claims estimated at $ 250 were unpaid when this cause was on trial in the district court.

This action took the form of a suit in partition by the daughter Emma. Hugo and Otto filed separate answers pleading various matters, but particularly that by the text of the mother's will, and also by her oft-expressed intention, the land devised to Gertrude was subject to a lien to pay the $ 500 bequests to them.

The executor, W. M. Clark, filed a petition of intervention alleging that the personal property of Mary's estate in his hands was insufficient to pay the legacies and costs and expenses of administration and praying for a construction of the will on the question whether the real estate was chargeable with the payment of legacies.

Gertrude answered with a general denial, admitted the allegations of the intervener's petition, and set up the will, and prayed judgment quieting her title to the real estate.

The trial court ruled in favor of Gertrude, holding that the legacies to Hugo and Otto were not a charge upon the real estate devised to her.

Was this error? Appellants emphasize the legal...