Fennell v. Fennell

80 Kan. 730 | Kan. | 1909

The opinion of the court was delivered by

Graves, J.:

It is contended by the plaintiffs in error-that when the widow elected to take under the statute- and her -part of the land was set apart to her the will thereby becáme nugatory, because it was impossible thereafter to effectuate the intent of the testator as evidenced by the will. On the other hand, it is insisted by the defendants in error that where a widow refuses to accept the provisions of her husband’s will and takes under the law she thereby defeats the purposes of the testator so far as she is concerned only, and the other provisions still remain in full force and must be administered so as to effectuate the intent of the testator as far as possible. (Allen v. Hannun, 15 Kan. 625; Noecker v. Noecker, 66 Kan. 347; Lilly v. Menke, 126 Mo. 190, 210; 11 A. & E. Encycl. of L. 117.)

The contention of the defendants in error is undoubtedly the law in cases where it can be applied. When, however, its application will result in the defeat of the manifest intention of the testator, and work an injustice to other heirs, it should not be applied. The rule is intended to be operative with reference to the other provisions of the will only when the intent of the testator can be preserved and followed. It seems impossible to do this under the facts of this case. The widow, by electing to take one-half of the land in fee simple instead of a life-interest in the whole tract, completely changed the subject-matter upon which the will was intended to operate, and effectually destroyed the manifest plan and purpose of the testator.

When a clause in a will is adjudged to be invalid the effect of such adjudication upon other clauses depends upon circumstances. Where the several clauses are independent and separate from the void clause, so they can be enforced consistently with the testator’s intent, they will stand and be administered; but if the void clause is so connected with the general scheme of the testator that it can not be consistently separated therefrom the whole will must be held invalid. In volume 30 of the American and English Encyclopedia of Law, at page 665, it is said:

“Where effect can not be given to the whole will, or to an entire provision thereof, consistently with the> rules of law, any part of it which is conformable to such rules will be upheld, if it can be separated from the rest of the will without violating the testator’s general intent; but if such void clause is so connected with the general- scheme of the testator that it can not. be consistently separated and disconnected therefrom* the whole will or provision is’ thereby invalidated.”

The syllabus to the case of Reid v. Voorhees, 216 Ill. 236, as reported in volume 3 of the American and. English Annotated Cases, at page 946, reads:

“Although it is a general rule that where dispositions of a will are independent such dispositions as are-contrary to law may be rejected without affecting-those which are valid, it is necessary to consider the-general scheme and intention of the testator and the-effect which the rejection of an invalid disposition will-have upon that general scheme and upon the shares of the intended objects of his bounty.. Thus, where a. testator who has no nearer heirs gives by one clause in his will property amounting to practically one-half of his estate to the children of a deceased sister, and by other clauses gives certain property- comprising the-remainder of his estate to the children of a deceased brother, he thereby manifests an intention that the two-sets of representatives designated shall share his estate in something like equal proportions, and if the clauses of the will in favor of the children of the deceased brother are void as violating the rule against, perpetuities the clause for the benefit of the children of the. deceased sister will also be rejected, so that those intended by the testator to take may take by the law of descent in two equal pbrtions in substantial accordance with the manifest purpose of the will.”

Elaborate notes are given with each of these citations, where the authorities are collected from many states and seem abundantly to support this proposition. (As bearing further upon this question, see Holdren v. Holdren, 78 Ohio St. 276; Sevier v. Woodson, 205 Mo. 202.)

The decree of the trial court shows quite clearly the difference between the will as executed by the testator and as administered. The widow, instead of receiving a life-estate in all of the land as provided by the will, took one-half in fee simple; Joseph, whom the testator intended to favor by giving him seventy acres of the homestead, received nothing; the legacy of $500 to Enos was ordered to be paid immediately, instead of after the death of the widow, as intended by the testator; the other children were given the real estate remaining after the allotment to the widow in fee simple, at once, instead of after the death of the widow, as the testator intended. The will itself and the surrounding circumstances indicate quite clearly that the testator did not intend to make such disposition of his property. In view of the generous devise made by the testator to his son Joseph, as compared with the other children, it can not be reasonably assumed that he intended the other children' to take; under any contingency, all of the land subj ect to his disposition, leaving Joseph with nothing.

The rule that a testator is supposed to know the law when he executes a will, and will therefore be presumed to have contemplated that it might be held invalid in part and to have intended that in that event the other clauses should be enforced as written, can not be applied here without making a disposition of his property which is clearly contrary to his wish. This rule may doubtless be .justly applied in some cases, but here it would result in defeating the very object for which it was created. In our view it is impossible to carry out the will of the testator by enforcing any part of the will, and therefore it should be set aside as a whole and the property remaining after the allotment to the widow partitioned among the children the same as if no will had been made.

The judgment of the district court is reversed, with direction to proceed in accordance with the views herein expressed.