Kinkead v. Maxwell , 75 Kan. 50 ( 1907 )

The opinion of the court was delivered by

Graves, J.:

The plaintiff in error claims that the district court erred in holding that she took only a life-estate under her father’s will, and also in dismissing the suit. We agree with her upon both propositions. Every owner of real estate has the right to hold and enjoy it free from the inconveniences and embarrassments incident to joint use and occupation. It is a generally recognized rule of law that the owner in fee of an undivided interest in real property is entitled to partition, as a matter of right. (21 A. & E. Encycl. of L. 1146, and cases there cited; Martin v. Martin, 170 Ill. 639, 48 N. E. 924, 62 Am. St. Rep. 411, and note.) This court recently held that such a suit could be maintained against a cotenant whose interest in the land was a life-estate only. (Johnson v. Brown, 74 Kan. 346, 86 Pac. 503.)

The district court erred, therefore, in denying these parties the right of partition', even if' correct in the conclusion that the plaintiff in error took a life-estate only under the will. This conclusion requires a reversal, and the consideration of other questions seems unnecessary. But as the case will be remanded for retrial it may become important in its future progress to know what estate the plaintiff in error took in the lands in controversy under the provisions of her father’s will, and we therefore deem it proper to consider that question at this time.

It is conceded that she received an estate in fee to the one-half of her mother’s interest by descent. The controversy as to the extent of the estate taken by her as devisee arises upon that portion of the will which reads:

“In all the real estate which I possess in Kansas or elsewhere I will to my wife a life-estate in one-third, the other two-thirds to Annie and Laura A. Stone equally.

“My daughter Laura A. Stone being of an improvident disposition, I will that my wife shall hold all the property devised to her; this will be in trust for her benefit, she receiving the whole income during her life and then to her heirs, and this I do not from any lack of affection but from a sense of duty, in order that she may be provided for as long as she lives. I do not wish that there should be any inventory of my property.”

It is claimed that the words “the other two-thirds to Annie and Laura A. Stone equally,” if standing alone, would give a fee simple estate to each of the daughters named, but that the subsequent paragraph has the effect to change this estate into an estate for life only, so far as Laura, the plaintiff in error, is concerned, and the district court seems.to have adopted this view. •

The intention of the testator, if ascertainable from the instrument when considered as a whole, is the universally recognized guide to be followed in the construction of wills which are ambiguous or uncertain in their terms. A further rule of construction is furnished by section 7992 of the General Statutes of 1901, which reads:

“Every devise of real property in any will shall be construed to convey all of 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.”

Where the meaning of a will is doubtful or obscure it will be presumed that the testator intended to make equal distribution among his children. (30 A. & E. Encycl. of L. 669; Munday v. Broaddus’ Ex’rs [Ky.], 40 S. W. 926; Malone v. Dobbins, 23 Pa. St. 296; Wilcox v. Beecher, 27 Conn. 134.)

An examination of the will under consideration shows quite clearly that the testator intended to deal with his daughters impartially. It was plainly his desire that each of them should have the absolute ownership of the property given to her. But because of the improvidence of Laura he deemed it wise to commit the care and management of her property to her mother. Ordinarily such custody of a daughter’s funds would not be regarded as a serious obstacle to the accomplishment of her reasonable wishes. The trust here reposed in the mother was not created for the purpose of affecting the ownership of the lands; its sole object was to protect and preserve the property for the use of the devisee, without otherwise limiting or decreasing her title thereto.

We conclude that the parties are entitled to partition of the lands in controversy; that Laura Stone Kin-kead, the plaintiff in error, and her sister, Annie Stone Maxwell, one of the defendants in error, each own an undivided one-half interest in the laqds, in fee simple; and, if it becomes necessary in the partition proceedings to sell the property, the purchaser will obtain an estate in fee simple to the whole of the lands purchased.

The judgment of the district court is reversed, with directions to proceed with the case in accordance with the views herein expressed.