No. 10800 | Kan. | Nov 5, 1898
In January, 1892, Lucy B. Armstrong, a widow, died testate at her home in Kansas
And whereas the land thus described and devised to my son Henry includes my home, and all the appurtenances thereto belonging, I enjoin my son Henry to keep the dear old home, so that if any of my children should be homeless it should be a refuge for him, her or them.”
On the application of the executor an order was made by the probate court directing a sale of the home place for the payment of the debts of the estate. Before the order was made Mrs. Hartman and her daughter applied to the probate court to have one acre, including the house, set apart from the remainder of the land, claiming the same as a homestead of the children and surviving family of Lucy B. Armstrong. Their application was denied by the probate court, and on appeal to the district court the order of the probate court was affirmed.
The Hartmans bring the case here, insisting that they constituted a part of the family of Lucy B. Armstrong bbfore her death, and that by virtue of the interest which they held in the property and the con
We think there is nothing substantial in their claim of homestead. By the terms of the will the title to the property in controversy passed absolutely to Henry Armstrong when his mother died. The Hartmans do not constitute a part of his family, and, anyway, he is not asserting an exemption nor claiming the property as a homestead. The exemption provided for in the Constitution and statute exempts lands “occupied as a residence by the family of the owner,” and, as we have seen, neither Caroline nor her daughter, Daisy, who ivas about twenty-one years of age at the time of the trial, was a member of the family of the owner. While they might have been regarded as members of the family of Lucy B. Armstrong if during her lifetime she had claimed the property as a homestead, they are not members of the family of any one who has a present interest in the same. They are heirs or children of an intestate, within the meaning of the exemption provision of the law of descents and distributions, and hence no claim can be made in their behalf under that provision. The claim made for them is rested mainly on the theory that under the
The precatory clause hereinbefore quoted, suggests that her desire is that Henry should keep the old home and give refuge to any of her children who may become homeless, but it is not in the nature of a direction nor is it a limitation of his right in the property devised. The prior provisions of the will clearly import absolute and unrestricted ownership, and as the precatory words only express hope and recommendation they do not create a trust or vest an interest in the brothers or sisters of the devisee. After giving Henry the home in language similar to other absolute gifts, she appears to have suggested to him that he keep the same, relying upon his discretion and leaving him to judge whether her suggestion should be adopted or not. It is a general rule that wherever a discretion is given for carrying out such requests, and where the prior dispositions of the property import a complete transfer of ownership, the courts will not hold the same as the creation of a trust. It follows, therefore, that the Hartmans had no interest or right in the property upon which to base a claim of homestead.
The judgment of the District Court will be affirmed.