91 Kan. 426 | Kan. | 1914
. The opinion of the court was delivered by
In this action begun by the appellant, John G. Chilson, to set aside the will of his wife, Cynthia A. Chilson, the question involved is, Can a consent given by him in pursuance of the statute that his wife may will from him more than one-half of her property be revoked? The case was submitted on an agreed statement of facts which shows that the appellant was sixty-three years of age and Cynthia A. Chilson sixty-four years of age at the time of their marriage on March 1, 1903. Mrs. Chilson was the owner of some property -which came to her from a
The right to take property either by devise or descent is derived solely from the state and is wholly within the control of the legislature. The husband can only receive a share of a deceased wife’s estate or the wife of a deceased husband’s estate either by will or inheritance where the statute of the state authorizes it, and
The statute provides that the wife may take one-half of her deceased husband’s estate and the husband may take the same share of his deceased wife’s estate, and it is further enacted that:
“No man while married shall bequeath away from .his wife more than one-half of his property, nor shall any woman while married bequeath away from her husband more than one-half of her property. But either may consent in writing, executed in the presence of two witnesses, that the other may bequeath more than one-half of his or her property from the one so consenting.” (Gen. Stat. 1909, § 9811.)
This section not only authorizes the giving of consent but specifically provides the form and manner in which it shall be given. There is no requirement that it shall be attached to or be regarded as a part of the will and it is not necessary that it shall designate, the will to which it applies. (Keeler v. Lauer, 73 Kan. 388, 85 Pac. 541.) It is enough that a writing freely, fairly and legally made shall express the consent of' the husband or wife that the other may bequeath or devise more than one-half of his or her property away from the one consenting. The one to whom it is given is then at liberty to give the share so legally surrendered to whomsoever he may will. It is not necessary that: the one consenting shall be given property by the will, of the other nor that there shall be any consideration, for the consent. (Hanson v. Hanson, 81 Kan. 305, 308, 105 Pac. 444.) When such written consent is made in accordance with, the statute and delivered to the other-spouse it is a binding disposition of a property right: unless some statutory authority can be found for revoking or setting it aside. Although definite provisions have been made for executing this consent, none
“With this consent Mrs. Heilbrun had a complete right to dispose of all her property by will.” (73 Kan. 396.)
In the absence of statutory authority to do so there is no more warrant for revoking such a consent before than after the death of a spouse. It has also been determined that a consent can not be repudiated or set aside because of a subsequent discovery that the estate is larger than the consenting party had supposed, she having been fully informed as to her rights and having given her unconstrained consent. (Pirtle v. Pirtle, 84 Kan. 782, 115 Pac. 543.) Of course, a written consent, like other instruments, will not be' valid if it is obtained by deception, undue influence or fraud of any kind. (Weisner v. Weisner, 89 Kan. 352, 131 Pac. 608.) It is argued that as a will may be revoked at the option of the maker a consent to the making of that will should be equally open to revocation, at least until the will
It appears that the consent of appellant was formally, freely and intelligently given after he had read the written relinquishment as well as the proposed wiM and had thus learned the disposition which his wife intended .to. make of her property in pursuance, of .his consent. The consent was made, in strict compliance with the law, and there is no claim-that there was over-