86 P.2d 493 | Kan. | 1939
Lead Opinion
The opinion of the court was delivered by
A second rehearing in this case was granted. (See Meyer v. Meyer, 146 Kan. 907, 73 P. 2d 1007; Meyer v. Meyer, 147 Kan. 664, 78 P. 2d 910.) Additional briefs have been filed and the case again argued at the bar of this court.
The will of Magretha Meyer provided;
“I give, bequeath and devise to my beloved son, Henry Meyer, a life estate in and to the following-described real estate (description) and at the death of my son, Henry Meyer, I give, bequeath and devise the aforesaid described real estate in fee simple to the heirs of his body.”
In the original opinion it was determined that Henry Meyer received a life estate and not an estate tail. On the first rehearing we again held an estate tail was not created. After full argument and careful consideration we conclude that our ruling that the limitation in the will created a life estate in Henry Meyer, with a remainder over, is contrary to the established rule in this state and cannot stand. The reasons for our final judgment in the matter will be succinctly stated:
In Davis v. Davis, 121 Kan. 312, 246 Pac. 982, a testator devised property to his granddaughter, Vera Mable Davis, “for and during her natural life,” subject to the condition that she and the testator’s
In Somers v. O’Brien, 129 Kan. 24, 281 Pac. 288, land was conveyed to the grantee for life “and at her death in fee simple unto the issue of her body absolutely and forever.” In holding this language created an estate tail, the court said:
“But there is language in the deed of 1916 which has the effect of creating an estate tail in Magdelina. The grant is not to her and her heirs and assigns, or to her for life and thereafter to her heirs and assigns, so as to carve the grant into two parts — a life estate to her, and the remainder to others. The grant is to her for life and ‘at her death in fee simple unto the issue of her body,’ the founding of a line of inheritance of the grantors’ own choosing at variance with the mode of intestate succession prescribed by statute. It is therefore an estate tail. (Gardner v. Anderson, Trustee, 114 Kan. 778, 781, 227 Pac. 743; id., 116 Kan. 431, 434, 227 Pac. 743.)” (p. 28.)
In Houck v. Merritt, 131 Kan. 151, 289 Pac. 431, a testator devised property to his daughter, Mary E. Houck, “during her natural life, and at her death to her children, the issue of her body, in fee simple forever.” It was held that Mary E. Houck took an estate tail in the land devised.
An examination of the briefs in the Houck case discloses that counsel in urging that a life estate only was created in Mary E. Houck called attention to the words “forever,” “fee title forever,” and “fee title” by printing these words in capital letters. The effect of the words “in fee simple” was therefore urged upon the court in that case and the expression to the contrary in Meyer v. Meyer, 147 Kan. 664, 668, 78 P. 2d 910, is inaccurate.
These cases have been accepted by the profession as the correct construction in this class of cases. They have established a rule of
Dissenting Opinion
(dissenting): The former opinions in this case accurately express my views.
