Bennett v. Hutchinson , 11 Kan. 398 ( 1873 )

The opinion of the court was delivered by

Brewer, J.:

The only question in this case is as to the existence of an implied repeal. The fourth section of the married woman’s act of 1859 is as follows: “Any woman may while married make a will, but she shall not bequeath away from her husband more than one-half of her property, both personal and real, without his consent in writing.” (Comp. Laws, 697, §4.) In 1865 an act was passed relating to wills. The first section of this act provides “ that any person of full age and sound memory, having an interest in lands, tenements and hereditaments, or any annuity or rent charged upon or issuing out of the same, or any goods, chattels, rights, credits, choses in action or possession, or any other property of any description whatever, may give and devise the same to amy person, by last will and testament lawfully executed, subject nevertheless to the rights of creditors, and the provisions of this act.” (Laws of 1865, p. 169, §1.)

In December 1865, Rebecca D. Hutchinson, a married •woman, made her will devising all her real estate to her two children, the defendants in error. In 1866 she died. Her husband never gave any consent in writing or otherwise to this will. Did the entire estate pass to the children, or one-half to the husband? The answer to this question depends on the answer which shall be given to.the question whether the law of 1865 above quoted repealed that of 1859. If we ignore the questions of sex and coverture, and regard these two sections as simply grants of power to devise, their inconsistency Avonld be too patent for doubt. The one grants poAver to devise one-half; the other to devise all. The last gives full power, Avhich was limited by the first. The grant of full poAver repeals the limitations which attached to the former grant. Suppose the first section read like this: “Any man between the ages of 21 and 30 may make a will, but shall not bequeath away from his father more than one-half of his property without that father’s consent in writing,-” and the second was as at present: who Avould question the repeal ? The only limitations on the full power given are, “the rights of creditors, and the provisions of this act.” The first of course could not affect this question, and the second does not, at least adversely. As against this counsel urge— “The law as to the rights of the husband in the wife’s estate, Avas first passed February 7th 1859, and has been the law of Kansas ever since, unless it was repealed, as claimed by defendants, in 1865, from which time it disappeared from the policy of the state on this subject until 1868 — three years— when it was once more adopted as the law of the land; § 35, ch. 117, Gen. Stat. A policy so vacillating, on a subject of so much importance, ought not to be ascribed to the legislation of the state, unless imperiously required.” But we may not refuse to language its ordinary meaning for the sake of uniformity in legislation. That would practically be either a judicial abridgment of the power of one legislature to enact its will into law, or a judicial denial of its ability to express such will. Uniformity in legislation is as a general rule, desirable; but uniformity is not thus judicially attainable. Again, it is said that “the act of 1865 in terms repealed one law, to-wit, the law of 1859 entitled ‘an act relating to wills/ Expressio vmius, exdusio a&erius.” Therefore the legislature intended that all other laws touching on the same subject should stand. True; but if one section of this conflicts with one of a previous law, both cannot stand. The earlier must give way to the later law. The legislature of 1865 authorized Mrs. Hutchinson to make this will. Can the act of any previous legislature be appealed to, to destroy this authority ? Again, it is urged that at common law a married woman had no power to make a will devising real estate; that §4 of the married yoman’s act of 1859 gives this power in terms, and that therefore the authority to make this will is derived from this section rather than from the act of 1865. In other words, the claim is, that the general terms of the act of 1865 do not include married women, and a decision of the supreme court of Indiana is cited upon somewhat similar words favoring such construction. Under § 6 of article 15 of the state constitution, and the general scope of our legislation concerning married women, and the general recognition in our. statutes of their full control over their separate property, we should be compelled from the language of this section alone to construe it as including married women. But we need not rest with that. Sec. 77 of the same act reads “Every word in this act importing the masculine gender may extend and be applied to females as well as males; * * Provided, that no female, during her coverture, or life of the father of her child or children, shall, by virtue of this act, be authorized or empowered to appoint a testamentary guardian for any child she may have.” True, this proviso has special reference to §72; but surely, if. a proviso was; needed to limit the power of the wife and mother to appoint a testamentary guardian as against a section in which the term used is, “father,” some restriction would have been expressed if it had been intended to exclude married women from the reach of a section which said “any person.” And again counsel urge, that “The first section of the law of 1865 provides that the will made by testator shall be subject to the ‘provisions of this act/ and to that extent limits the devising power. But the ‘provisions of this act’' on this point clearly affirm that the grant shall not extend to any estate that the devisor may not ‘lawfully devise.’ Section 55 of this act says that the will shall be so ‘ construed.’' Plainly, this clause of the act recognizes a legal disability in a testator to devise an entire ‘ estate.’ ” The section reads-that “ every devise of lands, etc., shall be construed to convey all the estate of the devisor therein, which he could lawfully devise, until it shall clearly appear that the devisor intended to convey a less estate.” -This creates no limitation. It provides simply a rule of construction. It is like the clause in §2 of the act concerning conveyances, (Gen. Stat. p. 185,)-which declares that “every conveyance of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear, etc. It recognizes a legal disability to devise an entire estate, as counsel says; but it does not revive a disability otherwise dead, nor operate to continue in force a statute .otherwise repealed. Its purpose, as all lawyers know, was to avoid the frequent controversies at the common law as to whether a devise passed only the life-estate or a fee-simple. Section 9 of the married woman’s act of 1859 reads, “In case any married man shall hereafter deprive his wife of over one-half of his property by will, it shall be optional with such married woman, after the death of her husband, to accept the conditions of such will, or one-half of his whole estate, both real and personal.” This prevents a husband from depriving his wife of more than one-half his estate against her wishes, as § 4 in like manner restrained the wife. True, one is in form a prohibition and the other an option, but the purpose sought to be accomplished is the same. Now in the act of 1865 by §§ 43, 44, 45 and 46, authority is given to the widow to elect whether to take under her husband’s will, or be endowed as though he died intestate. This evidently is in lieu of § 9 above quoted. It substitutes a new rule, but prevents the husband from depriving his wife of his entire estate. It is one of the “provisions of the act” by which the full testamentary power granted in the first section is limited. The matter of restriction was therefore in the thought of that legislature. It placed a restriction on the husband, but omitted to place any on the wife. And omitting this, it granted to every person full testamentary power, subject only to the rights of creditors, and the restrictions of its own enactment. We think therefore that there was an implied repeal, and that the judgment of the district court must be affirmed.

All the Justices concurring.