101 Kan. 335 | Kan. | 1917
The opinion of the court was delivered by
Charles A. Brown and Alice L. Byram as executors of the estate of Sarah Brown, deceased, made final settlement in the probate court, where an order was made adjudging who were the heirs, devisees and legatees of the deceased. Elizabeth M. Brown, the widow of William F. Brown, a son of the deceased, took an appeal to the district court, where she filed an intervening petition claiming an interest in the estate through her deceased husband. Upon the motion of the executors this petition was stricken from the files and the cause was tried upon the record of the probate court proceedings and upon agreed facts, with judgment resulting in favor of the executors. Elizabeth M. Brown appeals to this court.
In 1906 John P. Brown and his wife, Sarah, executed a joint will in which it was stated that they desired that the estates of both should be kept together -as a whole until final distribution as therein provided. In its first paragraph it was provided that “upon the death of either of us, the estate of the other” should vest in the survivor for life with the right to
When the will was executed the testator and testatrix had six children living and also the child of a deceased son. These children were living when the testator, John P. Brown, died on August 23, 1909. Thereafter and prior to the death of the testatrix two children died, one of whom was survived by her husband and two children. The other, William F. Brown, was survived only by his wife, Elizabeth M. Brown, the defendant herein. The trial court adjudged that the defendant was not entitled to any interest in the estate except the five hundred dollars mentioned in the fourth paragraph of the will.
The defendant is not claiming as a legatee nor as an heir of the testators, but she insists that her husband, William F. Brown, took a descendible interest in the estate, and she is claiming an interest as the heir of her deceased husband. The
. Defendant contends that when the testator, John P. Brown, died, her husband, William F. Brown, as well as the other children acquired an interest in his property and the interest so acquired by him descended to her. This claim is largely based upon the expression in the first paragraph of the will heretofore referred to as the only term about which there can be any doubt or dispute. It provided that “upon the death of either of us, the estate of the other, real, personal and mixed, shall vest in tjie survivor” etc. The contention is that this does not mean the estate of the deceased shall vest in the survivor, but refers only to the estate of the survivor and gave her full control of her own estate while the estate of the deceased testator passed at once to his heirs. The quoted sentence, considered apart from other provisions of the will, might be open to some question, but when the whole will is considered together the subject is free from any reasonable doubt. The testators were not making the absurd provision that the estate of each should continue to vest in himself or herself while they were living. A provision of a will was not necessary to give a survivor an estate which he already had. It is obvious that in- the use of the loose expression it was the purpose of the testators to provide for the devolution and vesting of the estate of the deceased 'and not that of the survivor. The estate of the “other” mentioned was evidently the one other than the survivor. This is apparent from other provisions of the will to the effect that the property of both should be kept together until final distribution, and should then pass together. For instance, in the third paragraph it is provided that, “upon the death of the surviving testator, the entire estate of both of us, as then existing, real, personal or mixed, shall vest in the trustees,” etc. A canon of construction to which all other rules are subordinate is that the intention of the testator as gathered from all parts of the will is to be given effect and that a doubtful or inaccurate expression can not be permitted to defeat the obvious intent of the testator. (Ernst v. Foster, 58 Kan. 438, 49 Pac. 527; Blair v. Blair, 82 Kan. 464, 108 Pac. 827.) After the death of John P. Brown the entire estate remained intact, vested in Sarah Brown who had full power
The judgment of the district court is affirmed.