71 P. 815 | Kan. | 1903
The opinion of the court was delivered by
This was an action by the executors of the will of William Noecker to partition a tract of land in Dickinson county, Kansas. ' The plaintiff in error, the widow of William Noecker, together with a number of residuary legatees, were defendants in the action. William Noecker had been a resident of
Mrs. Noecker claims, first, that, under these facts, she is the absolute owner of the entire property ; that while section 7973 of the General Statutes of 1901, reads that “ any married person having no children may devise one-half of his or her property to other pei’sons than the husband or wife,” yet the provisions of sections 7937, 7972, 7979 and 7980 of said chapter, and section 17 of the act concerning descents and distxfibu-tions (Gen. Stat. 1901, §2519), compel us to add to said section substantially the words, “provided such husband or wife shall consent thereto” ; that is, that the right given in section 7973 is subject to the
It is strenuously contended that repeals by implication are not favored, and that, if we say that section 7973 permits a husband or wife, without the consent of the other, to bequeath away from him or her one-half of the property, this would amount to a repeal of the law as it had theretofore existed. We find no fault with the contention that repeals by implication are not to be favored. The effect, however, of section 7973 cannot be termed a repeal. It changes and modifies, but does not repeal. Scope is found for its harmonious application along with the other sections. They all may stand together, and, standing-together, make the law to be that the husband or wife may will away from the other, without the other’s consent, aj least one-half of his or her estate and no more, even
The plaintiff in error further contends that, even if she is not the owner of the entire tract but only of an undivided one-half, still the executors had no right to maintain an action in partition. We disagree with her in this contention. It is true, if their interest was only to the extent of giving them a right to sell for the payment of debts, they would thereby have no such interest as would permit them to partition, but, in this case, their interest is greater. The will made them trustees, and authorized them to sell the land for the benefit of the named nephews and nieces of the testator, four years after the death of the widow, the plaintiff in error. This bequest carried title, with the power to sell, to these executors. That the widow elected to take one-half of the property in fee simple, rather than to avail herself of the provisions of the will, entitling her to recover the rent, did not defeat this title in these executors.
The will must be administered so far as it can be, notwithstanding Mrs. Noecker’s refusal to take under it. Her election gave her an undivided one-half, and left in the plaintiffs the title to the other undivided one-half in trust. Whether they, under the terms of the will, could sell this prior to the death of the widow, is not material to this inquiry ; but certain it is that it became the duty of these executors presently to take charge of, and manage, the interest of these pephews and nieces. This could not be done without partition. It can hardly be contended that Mrs.
Finding no error in the action of the court, its judgment will be affirmed.