91 Kan. 240 | Kan. | 1914
The opinion of the court was delivered by
This is an action to set aside a family settlement and to quiet the title of a widow to a tract of land against the claims of one of her sons.
Edward W. Romary died intestate, leaving six children and a wife, his only heirs. Frank, the youngest child, was nineteen years old and is the defendant. His brothers and sisters were of full age. His mother, the plaintiff, was sixty years of age then — sixty-five at the time of the trial. Edward Romary owned 500
.. • Mrs. Eomary took her will from the probate office and destroyed it just before leaving for Arkansas. She had previously changed it by making the devise to Frank and the heirs of his body. • ■
There was evidence of harsh and reproachful language used by Frank, and his wife when differences between the mother and wife were being discussed. At one time he became angry over an April fool joke of his mother and used profane and contemptuous language. The mother used reproachful and unkind language towards the young people, and made charges of infidelity against Bernice. She testified that harsh words were spoken by all three. With respect to these unkindnesses, the age and physical condition of-the mother and the son’s duty of forbearance should be remembered; on the other hand, the situation and condition of the young wife, .and his duty to protect and care for her so far as he could honorably do so should be borne in mind.
There is some complaint that the mother received but little of the proceeds of the farm for her personal use, which is true. She also complained that she was not strong and that the assistance of a girl in the household was promised and should have been provided. It seems that at one time a girl was engaged, but was soon discharged by the mother, and that Frank assisted in washing and other work in the home. On. the whole, without stating further details, it is believed that these minor matters would never have .been the grounds of serious complaint had not the difficulties following the advent of the son’s wife into the home led to the dis
The district court made no special findings, but found generally for the plaintiff, set aside the contract and quieted the plaintiff’s title to the homestead; adjudged that she should recover half the crops of the farming season beginning March 1, 1911, and have possession January 1, 1912, but that Frank should recover from her the sum of $2500, which was made a lien upon the land. This judgment was entered December 1, 1911. t
It is obvious that these conclusions were reached upon finding that because of the ill feeling and strife engendered between the plaintiff and the young wife it was not possible for them to live happily together, and that therefore the agreement could not be specifically performed. Hence its annulment and the allowance made to Frank of a sum doubtless-deemed equitable by the district court in the situation then presented, and the provision out of the crops for her support after she left the homestead until she should obtain possession. The court probably considered the expectation of life of the mother at that time and directed the payment of a sum deemed equivalent to the son’s interest in the land, charged as it was with her support for the remainder of her life. The evidence is that the 80-acre tracts were each worth about $1900 when possession was taken by the other children, but the dates of possession were not shown. The value of the homestead at the time of the trial was shown to be $6000 and its rental value $200 to $250 per year. The mother died June 21, 1912.
It is argued that Frank will obtain by the judgment $500 more than his brothers arid sisters, but it must be remembered that they have had the use of their land
The will has been' cancelled. The mother is dead. The other children have secured and for years enjoyed all that the father and mother intended they should have and just what they agreed to accept. The home
To accomplish this end the judgment should be modified by vesting the title to the homestead in the defendant, J. F. (Frank) Romary, and quieting that title upon his paying, in lieu of her support after leaving the home, one-half the value of the crops raised upon the farm for the farming seasons of 1911 and 1912 and the expenses of the funeral of his mother, if he has not already done so. These amounts will probably be fixed by agreement, but if not they will be determined by the district court. Costs in that court will be taxed in its discretion. The costs in this court will be-divided.
The cause is remanded for modification of judgment as directed.