Vining v. Willis

Citation40 Kan. 609,20 P. 232
PartiesANN B. VINING et al. v. A. J. WILLIS
Decision Date05 January 1889
CourtUnited States State Supreme Court of Kansas

Error from Ottawa District Court.

ACTION to quiet title. Judgment for the plaintiff Willis, at the May term, 1887. The defendants, Vining and others, bring the case to this court. The material facts are stated in the opinion.

Judgment reversed and cause remanded for further proceedings.

Gleed & Gleed, R. F. Thompson, and W. E. Richards, for plaintiffs in error.

Garver & Bond, for defendant in error.

VALENTINE J. All the Justices concurring.



This was an action brought in the district court of Ottawa county by A. J. Willis against Ann B. Vining, Catherine Rouson, Ada A. Reed, Louis A. Arzeno and Jennie Miller, to quiet the plaintiff's title to a certain forty-acre tract of land situated in said county. The case was tried before the court without a jury, and the court made special findings and conclusions of fact and of law, and rendered judgment upon the same in favor of the plaintiff and against the defendants, quieting the plaintiff's title, and for costs of suit; and the defendants below, as plaintiffs in error bring the case to this court.

The aforesaid property belonged originally to Mary D. Willis, the title thereto being in her name, and she being the absolute and unqualified owner thereof in fee simple. On September 27 1885, she died, leaving surviving her a husband, to wit, A. J. Willis, the plaintiff below, who is now the defendant in error. She left no surviving children. The plaintiff below now claims that he, as the surviving husband of Mary D. Willis, owns the entire tract of land and every interest therein. The defendants below, plaintiffs in error, claim that they own an undivided one-half interest in the land under and by virtue of a will executed by the owner, Mrs. Willis, during her lifetime. The plaintiff below also claims that the aforesaid property was the homestead of himself and wife prior to and at the time of her death. Now assuming for the purposes of this case that the aforesaid tract of land was in fact the homestead of Willis and his wife at the time of her death, then the only question to be considered or determined in this case is as follows: Where a husband and wife occupy a piece of land as their homestead, she owning the same, and the legal title thereto being in her name, and she having no children, can she, by will, and without the consent of her husband, devise a one-half interest in the land, or any less interest therein, to a third person, so that after her death such third person can take the interest attempted to be devised? The plaintiff below claims that under such circumstances and in the present case the will is utterly void, and the court below so held, and this for the reason, and only for the reason, that the plaintiff below and the court believed that the will contravenes that provision of § 9, article 15, of the constitution, which reads as follows:

"A homestead to the extent of one hundred and sixty acres of farming land, or of one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempt from forced sale, under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists."

The plaintiff below, to support his claim, relies solely upon that portion of the foregoing provision which we have put in italics. Indeed, he relies solely upon an interpretation or definition given by himself to the word "alienated." He claims that to execute a will for the purpose of devising real estate is to alienate the real estate, and that it is such an alienation as is contemplated by the foregoing provision of the constitution; and upon this claim, and this claim alone, he founds his further claim that the will in the present case is utterly void. We think these views are utterly untenable. A will never divests the owner of his property or of any interest therein. No interest passes by the will to the intended devisee; nothing that he can sell, or transfer, or incumber; nothing that will pass from him to heirs or that he can devise or bequeath; and the will may be revoked by the testator immediately after its execution or at any time afterward and before his death. A person might execute a thousand wills for the same property, yet no one of such wills would transfer anything; but when the testator should die the devisee mentioned in the last will executed would, under and by virtue of the statutes, take the property. 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. In the case of Comstock v. Adams, 23 Kan. 513, 524, the following language is used:

"A will is never a conveyance. A conveyance operates in the lifetime of the grantor, while a will does not operate until after the death of the maker. Of course death transfers all property, and a will says where it shall go; but this does not render a will 'a conveyance which the husband has made.' It is the death that transfers the property."

In the case of Martindale v. Smith, 31 Kan. 270, 273, the following language is used:

"When death occurs, the title to the property of the person dying must be transferred to some person. It cannot remain in the deceased; and the will simply designates where the title shall go. The title may go to one or more of the persons occupying the property as a homestead, or it may go to some other person."

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. A will which is never operative or in force during the lifetime of the testator, is in this respect wholly unlike a deed or contract, which must have force and effect as soon as it is executed. When a deed or contract is executed, it cannot, like a will, be revoked or annulled at the mere whim or caprice of the maker. As soon as a deed or contract is executed, unlike a will, rights are vested under it which cannot be divested or destroyed at the mere option of the maker. It is true that a deed or contract may transfer property upon a contingency, or upon a condition precedent or subsequent, or to be used and enjoyed only at or after some future time; but still when the deed or contract is executed, rights become vested which cannot legally be disturbed or impaired by the maker, and the deed or contract is irrevocable so far as the maker alone is concerned. The party taking under the deed or contract has a right to rely upon it with all its contingent or conditional stipulations, and with all its stipulations for future use and enjoyment.

The word "alienated" as used in the constitution does not mean what the plaintiff below claims that it does. The word as used in the constitution we think means a voluntary parting with or surrendering of some interest in the homestead. And as a person never parts with or surrenders anything by virtue of a will, but only by reason of his or her subsequent death, and as it can never be supposed, without proof, that any person will voluntarily bring about his or her own death, it necessarily follows that the aforesaid constitutional provision can have no application to wills. Nor does the word as generally used mean what the plaintiff below claims that it means. The word as generally used means the passing of a thing from another, or the separation of two things, and not the conjoining or uniting of things. The passing of an estate or title from a person is an alienation, but the passing of an estate or title to a person is not an alienation: to say that a thing may be alienated to a person, if intended as a complete phrase, is a solecism. The word perhaps is sometimes used in this manner, but when so used the phrase is elliptical, a large portion thereof being understood, and when completed by adding the omitted words and the words which we have placed in brackets, it would read and mean substantially as follows: A thing may be alienated [from the person having it, and transferred] to a person [not having it.] When two things are united or joined together they are not alienated. It is only when they are separated from each other in some manner, when they are disjoined, or when they become foreign to each other, that they are alienated. Now a will, as before stated, never operates to separate an estate or title from the owner, never takes it away from him, and never diminishes his interest therein. He continues to hold it and all of it until the very last moment of his life, and until his life becomes extinct, although the will may have been executed any number of years; and when he dies the estate or title does not pass from him because of the will, but only because of the death. If he should live forever the estate and title would never pass from him because of the will; but, as die he must at some time, the estate and title would pass from him at his death, whether any will had ever been executed or not. A will therefore does not, and it never can, alienate an estate. The estate, however, when a will is executed, passes to the person designated by the will, but this passing of the estate to such person, as before stated, is not an alienation. This passing of an estate to a person must be given some other name, as a "reception" or a "union," or an "association." The words, then, "alienation" on the...

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  • Carothers' Estate Carothers v. Carothers, Case Number: 31691
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