104 Kan. 723 | Kan. | 1919
The opinion of the court was delivered by
On February 25, 1914, the tvife of A. B. Saffell died, holding a life insurance policy for $1,000 in which their four minor children — three sons and one daughter — were named as beneficiaries. Saffell was appointed guardian of the children. On March 26, 1914, he collected the insurance, amounting to $985.18. On September 3, 1915, Saffell died testate. An administrator was appointed, and claims against his estate amounting to some $2,800 were presented. An order was made by'the probate court for the sale of a quarter section of farm land, the title to which stood in the name of Saffell at the time of his death, for the payment of debts. On December 8, 1916, Reese V. Hicks, the surety on the guardian’s bond given by Saffell, brought an action against the administrator, making Saffell’s children defendants, asking an injunction against the sale of the land on the ground that Saffell had purchased it while guardian, and had used the insurance money referred to in part payment of the purchase price. A restraining order or temporary injunction was allowed at the commencement of the action. An answer was filed in behalf of the children by a guardian for the suit, likewise asking
1. The appellant contends that in allowing the restraining order and overruling a demurrer to the- petition error was committed for various reasons, one of them being that the plaintiff had no standing to ask the injunction. The children were proper parties to attack the sale; and did so, thus giving an additional basis for the final judgment. In such a case as this, if the permanent injunction was properly granted, any error or irregularity in the making of the preliminary order is not important. (Freeland v. Stillman, 49 Kan. 197, 206, 30 Pac. 235; Kerz v. Galena Water Co., 139 Ill. App. 598; Rothenburg v. Vierath, 87 Md. 634.)
2. Upon the merits of the case the appellant asserts that testimony given by the plaintiff and two of Saffell’s sons, regarding the use of the insurance money in buying the land, was incompetent under the rule regarding communications with persons since deceased, and that the other evidence had no tendency to prove that the money went into the land. The admission of the incompetent evidence is not a ground of reversal if there was competent evidence to support the decision. It was shown that Saffell bought the land on March 13, 1914, for $4,000, assuming a mortgage for $1,700, and interest, and paying the remainder of the price at once. On June 4, 1914, he paid off the mortgage, amounting to $1,746.75, with a check on the Berryton bank, in which he had deposited the insurance money on March 26, this payment reducing his account to $730.80. At his death he had only about $124 in money or on deposit. The guardian never made any accounting to the children in regard to the receipt of the $985.18. The
3. The will of Saffell gave to his four children all his “household furniture, farm implements, tools, live stock and crops,” and “any money which may be left after paying all just debts and expenses,” and also “the use, improvement and income” of his “dwelling house, land and its appurtenances”— consisting of the farm already referred to. The residue of his estate was directed to be divided among his children, the daughter to receive two-fifths and each of the three sons one-fifth.
The farm was occupied until his death by Saffell and his children. If he had died intestate it would have been exempt from sale in payment of his debts so long as it continued to be occupied by any of the family. (Kohler v. Gray, 102 Kan. 878, 172 Pac. 25.) The fact that the title passed according to the direction of the will, instead of according to the direction of the statute of descents and distributions, does not change the rule. It has been decided that a will is not a conveyance in such sense that a homestead thereby devised is free from the claims of the testator’s creditors regardless of its occupancy. (Postlethwaite v. Edson, 102 Kan. 619, 171 Pac. 769.) That decision is based on the view that by the making of a will the testator does not part with the control of the property, but
4. The appellant urges, however, that a different rule should obtain here because of a provision of the will reading: “My will is that all of my just debts and funeral expenses shall, by my executors hereinafter named, be paid out of my estate, as soon after my decease as shall by them be found convenient.” The argument is that the testator thereby indicated that he wished the farm to b • held subject to the payment of his debts. We do not rega d that inference as at all reasonable. A mere general direction for the payment of debts is not construed as a waiver of exemption. To have that effect, the language employed must be “unequivocal and imperative.” (Cross v. Benson, supra.) The words quoted fall far short of that requirement. If the matter were otherwise doubtful, it might well be inferred that the testator had specifically in mind the continued occupancy of the farm as a homestead, from the fact that he gave its use and income to his children without apportionment, while devising his daughter a double share in the fee. The clause by which he disposed of his personalty showed, too, that he assumed that his debts could be met from that class of property, if not from such money as would be on hand at his death.
5. The daughter was thirteen years old at the time of the trial. Shortly after her mother’s death she was taken to the home, in New Jersey, of her uncle, the plaintiff, who kept her
In the brief of the appellees, a theory is advanced that the children are the owners of the farm fully discharged of all claims of creditors.. The judgment, however, which we approve, charges the land with a trust in favor of the children
The judgment-is affirmed.