Johnson v. White

90 P. 810 | Kan. | 1907

The opinion of the court was delivered by

Graves, J.:

It is urged by the plaintiffs in error that the only provision in the will under which William White can claim the Kansas land is in the residuary clause thereof, which is denominated paragraph 8. This clause is claimed to be insufficient, because the land was acquired after the will was executed. Under the common law a will did not affect after-acquired real estate. That rule, however, has been changed in this state by section 7991 of the General Statutes of 1901, which reads:

“Any estate or interest in lands or personal estate or other property acquired by the testator after the making of his will shall pass thereby in like manner as if held or possessed at the time of making the will, if such shall clearly and manifestly appear by the will to have been the intention of the testator.”

The will, when construed in the light of the surrounding circumstances, indicates quite clearly that the testatrix intended all of her property to vest absolutely in White except the real estate described in the will. Although advanced in years she left her children and moved to another state alone, where she bought a farm and lived thereon. It does not appear that, she had any communication with her children, personal or otherwise. The fact that she cut them off with a pittance shows a complete estrangement on her part. William White had lived with her constantly after she settled in Nebraska, and managed her affairs. At the time she made the will she owned no property to which the residuary clause would apply. It was apparently a useless and meaningless provision. The facts' disclose, however, that the will was made immediately before a surgical operation from which she might recover. It was not made in contemplation of certain and impending death. She might live. It seems more reasonable to assume that this clause was inserted in the will for some purpose than to conclude otherwise. The testatrix may have contemplated the chances of a recovery and made this provision to cover future possibilities. If this real estate is not devised by this clause of the will, then the-testatrix died intestate. Such a result will, be prevented if it can be done by any reasonable construction. (Durboraw v. Durboraw, 67 Kan. 139, 143, 72 Pac. 566.)

By giving full force to the plain language of the will the wishes of the testatrix will be carried out; otherwise the result will be clearly contrary to her desire. She was forsaken by her children in her old age, and was cared for by William White. Her regard for her children and her friendship for White are clearly shown by the will. These conditions indicate that she had some reason for making a will with provisions broad enough to insure protection to her friend. Upon the whole case we think it was the intention of the testatrix to devise all the property she might own at her death to William White, regardless of when it was acquired or where located.

The judgment of the district court is affirmed.