255 F. 852 | 8th Cir. | 1919
This case properly presents to this court, by an appeal from a decree of dismissal of the complaint of Robert Wesley Wells, the question whether the second and third paragraphs of the will of Laura A. Wells vested on her death an absolute estate in fee in the real estate subject thereto in Eliza J. Wann, with unlimited power of disposition, or a life estate with power of disposition during her life only, with remainder over in that portion of the property which she did not dispose of during her life, to Madeleine S. Wells and Robert L. Wells. The second and third paragraphs of the will, so far as they are material to this issue, read in this way:
“2. I give, devise and bequeath to my mother, Eliza Jane Wann, all my property, real, personal and mixed, of whatever nature and kind whatsoever and wheresoever the same shall be situated at the time of my death, to have and to hold, as her own and exclusive property in case she survives me.
“3. Reposing full faith and confidence in the judgment and discretion of my mother, Eliza Jane Wann, it is my wish and I request that she devise and bequeath whatever remains at the time of her death of the property which she shall have received from me by the provisions of this will as follows:
“That she devise and bequeath one-half of said property to my adopted daughter, Madeleine S. Wells, and one-half to my nephew-in-law, Robert Wesley Wells, or if either be dead, to their surviving issue.”
“Every devise of real property in any will shaii 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. Kan. 1909, § 9831.
The court below tested this will by this law, and reached the conclusion that in view thereof, and of the express provision of the Kansas statutes, that 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, it could not hold that it clearly appeared from this will that the testatrix intended by its first paragraph to convey less than all the estate she could lawfully devise. No logical or rational way of escape from this conclusion has been found. The devise in the second paragraph of the will, standing alone, was ample to convey all the estate the testatrix could lawfully devise, and it gave the devisee the absolute power of disposition. Therefore, under the law of Kansas as it stood on February 5, 1913, that estate could not be diminished, nor could a remainder over be granted by the subsequent third paragraph of the will, and the decree below is
Affirmed.