Fennell v. Fennell , 81 Kan. 642 ( 1910 )

The opinion of the court was delivered by

Graves, J.:

A rehearing was granted in this case, limited to the single proposition, Can the provisions of' the will providing for the payment of the sum of $500-to the testator’s son Enos be administered and the other-features of the decision as now rendered stand?

Upon a reconsideration of this feature of the will we have concluded that it may be administered in this respect free from any interference with its other provisions. The bequest to Enos is entirely independent of the other provisions of the will. It has been suggested, that as the sum due him is not payable according to the-provisions of the will until after the death of Mrs. Fennell he can not be paid by an administrator in the ordinary course of administration, and to do so would defeat the intent of the testator. We do not think this the-proper interpretation to place upon the will. The true intent of the testator was that Enos should receive the bequest named in the will for him upon the termination of the life estate of Mrs. Fennell. Her life estate was terminated as effectually when she refused to take it as it could be upon her death, and the bequest to Enos became payable immediately. (Vance’s Estate, 141 Pa. St. 201; Randall v. Randall, 85 Md. 430; Ferguson’s Estate, 138 Pa. St. 208; Slocum v: Hagaman, 176 Ill. 533; Trustees Church Home v. Morris, 99 Ky. 317.)

The decision is therefore modified to the extent that the provision of the will relating to Enos Fennell will be sustained and administered as though the life estate to Mrs. Fennell had terminated by her death.