93 Kan. 240 | Kan. | 1914
Abraham Blauer, born in Switzerland, moved to Nemaha county, Kansas, in 1868, was married in 1869, and settled upon a farm where he and his family lived until 1898,' when they moved to the town of Bern. The wife died in 1900. The only child, a daughter, Margaret, was born in 1870, and married at the age of nineteen to a Mr. Grossenbacher, by whom she had four children, John, Fritz, Sophia, and Marguerite. In 1890 she and her husband moved upon the farm with her parents. Her husband died in 1897, and in 1898 she joined her parents at Bern. After her mother’s death she continued to live with and keep house for her father. In September, 1902, she was married to Mr. Dreisbach, by whom she had one daughter, Gladys, now about nine years old. Her husband died in 1905, leaving her several thousand dollars’ worth of property. Mr. Blauer was strongly opposed to her marriage with Mr. Dreisbach. Upon her marriage she went to live with her husband at his home. In July, 1903, Mr. Blauer made a will providing that all of his property at his death, after the payment of debts and a bequest of two hundred dollars to his daughter, should be held in trust by the executor or administrator for the use and benefit of his four grandchildren, John, Fritz, Sophia, and Marguerite Grossenbacher, “or the survivors of them, during their natural lifetime, but only the net income from said real and personal property thus held in trust shall be paid to my said grandchildren or their survivors in equal shares, said income to accumulate in the hands of the trustee until each of said grandchildren becomes of age, when its respective share is to be paid to it, and thereafter to be paid annually, and at the death of the last survivor of my said four grandchildren all of the estate held in trust, both real and personal, shall be equally divided between the
The theory of the plaintiff was and is that not only was the testator enfeebled in health for some time before making the will, but that at the time of its execution he was suffering from a delusion that his daughter was no longer virtuous', there being no cause or reason for such notion. Numerous witnesses were examined as to the mental condition of Mr. Blauer, and the trial court found and determined that the daughter was and is of unimpeachable moral character, and that the father was of sufficient mental soundness to make the will in question understanding^, and that he was not
The plaintiff insists that it does not appear from the record that substantial justice has been done by the trial court, but on the contrary the greatest injustice has been done, and that under section 581 of the civil code, “It is the duty of this court to read the evidence in this case in order that substantial justice is done the appellant and her children.” There is nothing, however, in this provision of the code which makes this court a retrier of facts passed upon by the trial court when the conclusion reached is supported by competent testimony.
It is also urged with force and earnestness that the apparent desire of the testator to disinherit his only child is a matter for serious consideration, especially upon the question of his mental capacity. The jus disponendi is such, however, that when testamentary capacity is established or unsuccessfully attacked, the owner of property may dictate to whom it shall go at his death although the court called upon to review; his decision may feel that it was unreasonable, unaccountable, harsh or unjust. (Ginter v. Ginter, 79 Kan. 721, syl. ¶ 9, 101 Pac. 634; Kerr v. Kerr, 85 Kan. 460, 116 Pac. 880; Singer v. Taylor, 90 Kan. 285, 289, 133 Pac. 841.) The plaintiff, the only child, was given very little schooling and was required to work on the farm very much as would have been expected of a son, and appears to have been a kind and dutiful daughter and to have taken good care of her father while living with him before her second marriage. It seems regrettable, therefore, that the testator desired in his will, although reciting that he had at various times during his life given her money, to give her the paltry sum of two hundred dollars and manifestly intended that this should
The court held void as in violation of the rule against perpetuities that clause providing that should the four grandchildren all die without issue the estate should go to the heirs at law of the testator’s brothers and sisters and their heirs and assigns forever. All parties appeared to acquiesce in the view of the court as to this clause, but the plaintiff contends that this void provision destroys the entire will; that the general scheme of the testator was to so devise the property that it should under no circumstances go to the plaintiff or her children, and yet should her children die without issue she would be entitled to take as heir at law of the testator. The rule is invoked that when the legal and illegal portions of the will are so connected as to constitute an entire scheme which would be defeated by the rejection of the illegal portion, the whole must fall, and numerous authorities in support of this rule are cited. The appellant urges that an examination of the will shows a 'scheme so to tie up the property that neither the daughter nor any of the testator’s grandchildren should ever receive any of it or any substantial benefits therefrom. The defendant suggests, on the contrary, that it seems plain from the will that the general scheme was to conserve the property in the hands of the trustee so that the Grossenbacher children and the heirs of their bodies should have not only the net income but the entire estate, and that in the very remote and improbable contingency of their all dying without issue the clause was inserted that the estate should go to the heirs of the testator’s brothers and sisters at law and their heirs and assigns. We think it quite plain that Abraham Blauer so disliked his second son-in-law that he did not desire
We agree with the appellant that the acceptance by her of the two-hundred-dollar bequest under the circumstances shown does not estop or preclude her, in view of the tender made in her petition, from maintaining her suit. (Medill v. Snyder, 61 Kan. 15, 58 Pac. 962.)
It is also argued that the will is void for uncertainty for the reason that neither the mother nor any of her five children may receive any portion of the property, but at.most only the net income; that it is impossible to determine whether the share of each of the four grandchildren named is to be paid when he becomes of age or when the youngest becomes of age, or whether in case of the death of all four the property is to be divided among the heirs of their bodies per capita or per stirpes. But we do not regard these provisions sufficiently uncertain to impair the validity of the instrument.
The counsel who appears as guardian- ad litem for the minor defendants has presented, both orally and in writing, an able argument in support of his theories as to the construction and effect of certain provisions found in the will. He requests that we construe the
Should a construction be desired a suit for that purpose can be brought in the proper forum in the usúal way.
Having considered every point presented and finding no material error in the record, the judgment is affirmed.