Pirtle v. Pirtle, No. 17,074

No. 17,074 | Kan. | May 6, 1911

The opinion of the court was delivered by

Bürch, J.:

The argument in support of the chief assignment of error depends upon a view of the evidence which the trial court refused to adopt. The controlling testimony was given orally and was conflicting. The trier of the facts has found the facts. The findings are abundantly sustained by the evidence. For nearly fifty years the court has uniformly held in such cases that the findings are conclusive on appeal. The rule will be adhered to in this case.

It is said that the plaintiff’s written consent to her husband’s will was not binding upon her because of her Ignorance of her husband’s financial status. The point is an afterthought. It was not made in the petition and the twenty-second finding that at the time, the plaintiff consented to the will she had a general idea of her husband’s financial condition was gratuitous. The evidence upon which this finding is based came from the plaintiff herself and is recited in the statement of facts. It shows that she knew of the bulk of her husband’s property and of the general state of his financial affairs. Acting upon the knowledge she possessed she procured the will to be drawn, was present during its preparation and was consulted in reference to the provisions to be inserted for her benefit. The matter was not one in which the law required her to choose between two situations, neither of which she created, but it was one of active concurrence in the result of a transaction which she desired should take place and. which she aided in bringing about. With a general understanding, that her husband was a man of means, and with full knowledge of her right to one-half of all he possessed, she was satisfied with a relatively small portion of what she knew he owned. She so expressed herself to her husband when he was apparently seeking to please her. She so expressed herself privately to the attorney who advised her of her rights. She was of fair intelligence and reasonably well educated, was mentally competent, understood and knew what she was doing, knew the purpose, terms and effect of the will, and gave her unconstrained consent to it. She then proved the will, became its executrix, proceeded with a settlement of the estate, made partial distribution, and entered into the enjoyment of portions given her by the will. Under all these circumstances the discovery that the estate was larger than she had anticipated affords no reason for setting aside the consent she had previously given.

It is not necessary that the decision be rested upon the ground just considered. The court found as a fact an election by conduct to take under the will. The evidence was amply sufficient to warrant the'finding. (Reville v. Dubach, 60 Kan. 572" court="Kan." date_filed="1899-06-10" href="https://app.midpage.ai/document/reville-v-dubach-7891087?utm_source=webapp" opinion_id="7891087">60 Kan. 572; Cook v. Lawson, 63 Kan. 854" court="Kan." date_filed="1901-12-07" href="https://app.midpage.ai/document/cook-v-lawson-7892277?utm_source=webapp" opinion_id="7892277">63 Kan. 854.) In the case of Reville v. Dubach, supra, the syllabus reads as follows:

“Although the statute provides for a formal election by the widow whether she will take under the will of her deceased husband, in lieu of the share which the law gives her, an election may be made by acts in pcCis, and hence the record is not the only proof of such election.

“The proof of an implied election must be clear and satisfactory, but a deliberate and intelligent choice is deemed to be as binding as though it were formally made.

“If, after ascertaining her rights and learning what she could take under the will as well as by the law, she deliberately proceeds as though an election had been made, accepts the benefits of the will and actually takes under it, she will be concluded, and will not be heard to say that no election has been made.” (60 Kan. 572" court="Kan." date_filed="1899-06-10" href="https://app.midpage.ai/document/reville-v-dubach-7891087?utm_source=webapp" opinion_id="7891087">60 Kan. 572, syl. ¶¶ 1-3.)

The syllabus of the decision in the case of Sill v. Sill, 31 Kan. 248" court="Kan." date_filed="1884-01-15" href="https://app.midpage.ai/document/sill-v-sill-7886153?utm_source=webapp" opinion_id="7886153">31 Kan. 248, reads as follows:

“In order that the acts of the widow shall be regarded as equivalent to an election to take under the will, it is essential that she act with a full knowledge of all the circumstances and of her rights, and it must appear that she intended by her acts to elect to take the provision which the will gave her. These acts must be plain and unequivocal, and be done with a full knowledge of her rights and the condition of the estate. A mere acquiescence, without a deliberate and intelligent choice, will not be-an election.” (Syl. ¶ 5.)

Every requirement of this rule is fully met by the findings of fact.

Other matters discussed in the briefs are not of sufficient moment to require the publication of an opinion respecting them.

The judgment of the district court is affirmed.