87 Neb. 567 | Neb. | 1910
Christian Hansen and Catherine Hansen executed a written instrument as their joint will. They were husband and wife, and Christian Hansen was then the owner of 80 acres of land in Kearney county, upon which they were living as their homestead. After the death of Mr. Hansen, Mrs. Hansen deeded the land to their son Martin, under which deed he claims to be sole owner of the land. After the death of Mrs. Hansen, other children of Mr. and Mrs. Hansen brought this action claiming an interest in the land as heirs of their father. The questions presented
In Walker v. Walker, 82 Am. Dec. 474 (14 Ohio St. 157), which is cited by the plaintiffs, the court held: “An instrument by which a husband and wife jointly attempt to make a testamentary disposition of the property of both, to treat it as a joint fund, jointly devising the real property of the wife, and jointly giving legacies out of the personalty of both, cannot be admitted to probate as the will of either, or of both. Such an instrument is in its nature irrevocable, and contravenes the policy of the law.” Several authorities are cited by the court, some
We should have found difficulty in supporting the decision of the trial court if it were not for the fact that in no other way can we give any force or effect to the will whatever. The land in question was the homestead of the testator and his wife, and under the statute, in the absence of any will, would have descended to the widow for life, and after her death to the children. We will not presume that the testator intended by his will to dispose of the property precisely as the statute would have disposed of it in the absence of a will. Having in mind that there might be such change in existing conditions as to make it necessary that his wife should dispose of the property, he left it with her to determine whether in the light of subsequent events the property should be equally divided among the children after her decease. The evidence in this case tends to show that he was wise in so doing.
We think that upon the whole record in this case the true construction of the will is that it devised this property to Mrs. Hansen in fee simple, and the judgment of the district court is therefore
Affirmed.