Allen v. Allen

28 Kan. 18 | Kan. | 1882

The opinion of the court was delivered by

Horton, C. J.:

Two questions are presented by the record - for our consideration:

First, Is the will referred to in the agreed statement of facts the valid will and testament of James M. Allen, deceased ?

Second, If it is his will, has the real estate devised therein to Sarah. J. Lavett, net Allen, descended to the heirs of the testator by the neglect of the devisee?

1. Will, joint inform, yet several. It is admitted in the statement of facts that the property •described in the will at the time of its execution belonged exclusively to James M. Allen, and that he died sole seized thereof. Rebecca J. Allen, his wife, who joined in the execution of the will, is still living, but had no interest whatever in the property mentioned in the will during the life of her husband, James M. Allen. This, therefore, is the case of a will where the husband and wife join in the execution of what is in form a ioint will, but which only disposes of property of which the husband is the sole owner. Such an instrument may be sustained as the several will of the husband. The wife, having nothing on which the will could operate, is held to be a mere cipher-in the transaction. The will, therefore, was that of the husband in the same manner'as though the wife had not signed it, and all her declarations and acts must be rejected as surplusage. (Thomas Rogers, et al., Appellants, &c., 11 Me. 303; Walker v. Walker, 14 Ohio St. 157.) Neither have the provisions of the will become void and ineffectual on account of the delay in the probate of it. Counsel for defendant in error claims otherwise, and refers to §§ 29 and 30, ch. 117, Comp. Laws 1879. They are as follows:

“Sec. 29. No will shall be effectual to pass real or personal estate, unless it shall have been duly admitted to probate or recorded, as provided in this act.

“Sec. 30. No lands, tenements or hereditaments shall pass-to any devisee in a will, who shall know of the existence thereof, and have the same in his power and control for a term of three years, unless, within that time, he shall cause the same to be offered for or admitted to probate; and, by such neglect, the estate devised shall descend to the heirs of the testator.”

2. Will, construed. The facts agreed upon do not bring the devisee within the-terms of said § 30 so as to deprive her of the estate devised by the will. Unless Lyons, the executor, acted for her, she had no power and control over the-will- until after the commencement of this action, and accordingly could not have been guilty of neglect in the matter of offering the will to probate. If the executor was her agent,, then she attempted through him to have the will probated on December '21, 1872, immediately after the death of the testator, and again in 1878. If the executor was not acting for her, then the will, although she knew of the existence thereof, was not in her power and control. (Comp. Laws 1879, ch. 117, §§3,4,5.)

In our opinion, the real estate in controversy passed under the will to Sarah J. Lavett, neé Allen, and did not descend to the heirs of the testator.'

The judgment of the district court must be reversed, and the case remanded with direction for judgment to be entered in favor of the plaintiffs in error, defendants below.

All the Justices concurring.