Wallace v. Magie , 214 Kan. 481 ( 1974 )

Schroeder, J.,

dissenting: I must respectfully dissent for the reasons stated in my dissenting opinion in Armstrong v. Cities Service Gas Co., 210 Kan. 298, 314, 502 P. 2d 672.

The facts of this case present a stronger argument for reversal of the trial court’s judgment than in Armstrong because here the remainderman who acquired title, after the termination of the life estate of Della Wallace in 1966, had no knowledge as to the prior use of the property by those in possession as the remaindermen did in Armstrong.

Furthermore, here Della Wallace had a life estate with a power of disposition. This court has held that where by the terms of a will the power and discretion to terminate a life estate is vested in a beneficiary, this power is personal-, and it is not property which may be subjected to forced sale on execution. (Ryan v. Cullen, 96 Kan. 284, 150 Pac. 597, Syl. 3.)

It is respectfully submitted the judgment of the lower court should be reversed.