91 Kan. 803 | Kan. | 1914
The opinion of the court was delivered by
The ownership of land which belonged to R. P. Twist in his lifetime is involved in this action. It appears that he owed debts and that the real estate which he owned was greatly incumbered. The estate was settled upon the theory that the personal property owned by him had been bequeathed to the wife and that the lands should be sold to pay the mortgages and other indebtedness, and if any remained it should be the property of his wife. It is claimed that when the estate was settled and all of the indebtedness had been paid there remained a quarter section of valuable land. The appellants, who are the children of R. P. Twist by his first wife, claimed that this remaining tract was intestate property, subject to division
“I, . . . Item 1st, will and bequeath to Mina my wife all my real estate of whatever kind, lots, houses or farm property, to have and hold, sell and convey in order to pay and liquidate indebtedness, mortgages, etc., against my estate.
“Item 2. I will and bequeath to Mina my wife, all my personal property of whatever kind, name or qualr ity and where ever found, in Wyandotte County, Kansas, or else where, to have and hold the same in her own right and title. This includes all property I die seized of.
“Item first includes all of the real estate of which I die seized in Wyandotte County, Kansas or else where.”
Does the language of item one mean that the real estate is given to the wife outright, or is it a mere direction to her to sell the land and pay the debts of the estate, leaving the residue undisposed of? The statute •of wills provides:
“Every devise of real property in any will shall be construed to convey all the estate of the testator therein which he could lawfully devise, unless it shall clearly appear by the will that the testator intended to convey a less estate.” (Gen. Stat. 1909, § 9881.)
Does it clearly appear that the testator intended to give his wife an estate less than the fee? He said that he willed and bequeathed all his real estate of every kind to his wife, to have and hold. This language imports an absolute gift and carries the fee title unless the following words of the will limit it to a less estate,
The first part of item one purports, as we have seen, to dispose of all of the real estate of the testator and to give it to the wife, and the subsequent language of the item does not expressly nor clearly evidence a purpose to cut it down to a less estate. The testator simply added the advisory or precatory clause that she should sell and convey it in order to pay the debts against his estate. This provision added nothing to the force of the instrument, as under the law the real estate is charged with the payment of the debts of the testator. The clause relating to the sale of the land to pay debts is substantially the same as to have stated that the land was given subject to the payment of debts. Even if the estate was not subject to the debts of the testator, the direction to pay money would strengthen the theory of an absolute gift, as it has been held that a condition or direction imposed on a devisee to pay money operated to enlarge a devise to him, without words of limitation, to an estate in fee. (Donohue v. Donohue, supra.) Here the wife was given the power of sale and conveyance without limitation, and nothing was said in the will about a remainder or residue. As the estate was subj ect to the debts, that provision of the will respecting the payment of debts was without force, and a decision that the real estate was not given to the wife would, in effect, be a holding that the provision of the
In view of the presumption against intestacy and the other considerations that have been mentioned, we are of opinion that the intention of the testator was to give the real estate to his wife, subject, of course, to.the payment of his debts, and that the will made was effectual for that purpose. The judgment of the trial court must, therefore, be affirmed.