Donohue v. Donohue

54 Kan. 136 | Kan. | 1894

The opinion of the court was delivered by

Hokton, C. J.:

Upon the trial, evidence was received showing that Louise Donohue was the youngest child of Thomas Donohue; that at the time of his death the family consisted of himself, his wife, Bridget, and his daughter Louise; that prior to and at the time of the execution of his will Joseph Donohue and his father were unfriendly; also the value of the personal and real property of which he died possessed, together with the amount of his debts. It is insisted that all of this evidence should have been rejected, upon the ground that the terms of the will are clear and unambiguous. The will was written by an illiterate person, without a punctuation mark of any kind. Every will should be construed in accordance with the intention of the testator, as expressed in or implied from the language.

“ Yet a court of construction cannot shut its eyes to the statement of facts under which the will was made. On the contrary, an investigation of such facts often materially aids in the elucidation or scheme of disposition which occupies the mind of the testator. To this end it is obviously essential that the judicial expositor places himself as fully as possible in the situation of the person whose language he has to interpret.” (1 Jarm. Wills, 736.)

Therefore, evidence as to the condition of the testator’s property, family, etc., is often admissible. We think in this case the trial court committed no error in receiving the evidence complained of.

The contention is, that the will devises a joint and equally limited estate in the real estate to Louise and to Bridget Donohue, and that that estate will terminate on the death or marriage of the latter. The trial court decided that Thomas Donohue, by his will, devised his real property to Louise Donohue in fee simple, subject only to its joint use and occupancy by her mother and herself during the widowhood of her mother, and the payment of $1,500 in legacies to the other heirs of Thomas Donahue at the death of her mother. It will be observed that, by the terms of the will, Louise was to pay “off the estate” the sum of $300 to each of the five heirs at the death of her mother. It is not a fair construction of the will to say that this is a charge against the personal property of the estate alone. The will provides that these legacies shall not be paid till “after the death of said Bridget Donohue.” The personal property was appraised at $1,832. The funeral expenses and the debts owing by the testator at the time of his death amounted to about $500. After paying the debts, there was left about $1,300 of personal property, to be divided between Louise and Bridget Donohue, or $650 each, provided the personal property brought the amount it was appraised at. Hence the personal property alone belonging to Louise Donohue was not sufficient to pay the $1,500 of legacies.

The statute provides that “Every devise of real property, in any will, shall be construed to convey all the estate of the testator therein, which he could lawfully devise, unless it shall clearly appear by the will that the testator intended to convey a less estate.” (Gen. Stat of 1868, ch. 117, § 54, Oct. 31; Gen. Stat. of 1889, ¶ 7258.) It is the rule that a condition or direction imposed on a devisee to pay a sum of money enlarges the devise to him, without words of limitation, into an absolute estate in fee. In this case the $1,500 to be paid by Louise Donohue after the death of her mother is a charge both upon the estate devised and upon Louise, for the legacies are to be “paid off the estate” by her. The fund is designated and a personal liability imposed. ( Barheydt v. Barheydt, 20 Wend. 576.) It is not reasonable to suppose that it was the intention of Thomas Donohue, considering his affection for his daughter Louise, who was first named -in the will, that he would burden her with the duty of paying, after the death of her mother, $1,500 of legacies out of his estate to the other heirs, if the balance of the realty or the proceeds thereof were to be distributed equally among all the heirs.

Upon the record, we must sustain the construction given to the will by the trial court, and therefore the judgment will be affirmed.

All the Justices concurring.