Abbott v. Underwood

TRIEBER, District Judge

(after stating the facts as above). [1] As the reference to the master was by consent of the parties, the findings of facts made by the master, especially when approved by the district iudge, are at least presumptively right. Kimberley v. Arms, 129 U. S. 512, 9 Sup. Ct. 355, 32 L. Ed. 764; Crawford v. Neal, 144 U. S. 585, 596, 12 Sup. Ct. 759, 36 L. Ed. 552; Davis v. Schwartz, 155 U. S. 631, 637, 15 Sup. Ct. 237, 39 L. Ed. 289.

[2] But we find that the master, as well as the learned trial judge, overlooked a very important question of law. From the findings of the master it appears that the Abbotfcs were married at the time the contract of sale was made, and at one time were residents of the state of Kansas. The Statutes of Kansas 1909, on the subject of the lands of the husband and wife, provide:

Section 2942:

“One-half in value of all the real estate in which the husband, at any time during the marriage, had a legal or equitable interest, which has not been sold on execution or other judicial sale, and not necessary for the payment of debts, and of which the wife has made no conveyance, shall, under the direction of the probate court, be set apart by the executor as her property, in fee simple, upon the death of the husband, if she survives him: Provided, that the wife shall not be entitled to any interest, under the provisions of this section, in any land to which the husband has made a conveyance, when the wife, at the time of the conveyance, is not or never has been a resident of this state.”

Section 2561:

“All the provisions hereinbefore made in relation to the widow of a deceased husband shall be applicable to the husband of a deceased wife. Each is entitled to the same rights or portion in the estate of the other, and like interests shall in the same manner descend to their respective heirs. The estates of dower and by curtesy are abolished.”

In construing these sections the Supreme Court of Kansas in Kennedy v. Haskell, 67 Kan. 612, 73 Pac. 913, held that the word “or” in the last sentence of section 2942 should be read as “and,” and if the survivor has ever been a resident of the state he or she is entitled to the benefits of the statute.

In Union Pac. Ry. Co. v. Barnard & Beas Mfg. Co., 1 Kan. App. 23, 41 Pac. 201, it was held that unless the wife joins in a contract of sale, her rights under that statute are not divested.

The evidence fails to show that the defendant Binus Abbott, the husband of Harriet B. Abbott, at the time this contract was made by her, joined in the contract of sale. In fact, it appears conclusively that he did not. Therefore his interest in the land was, under the statutes of Kansas, inchoate while the wife lived, and became absolute upon her death and his survival. The interest of the husband, in case he survives his wife, is not as that of an heir, but as husband. Flanigan v. Waters, 57 Kan. 18, 20, 45 Pac. 56. From this it follows that the court erred in decreeing specific performance for the undivided half interest of Linus Abbott. The decree as to the children of Harriet L. Abbott, who took only as her heirs, is correct, and should be affirmed.

A¡s the plaintiff receives only one-half of the land which he contracted for, it would be inequitable to compel him to pay to the heirs of Mrs. Abbott the full amount of the purchase money. The decree should therefore be modified, with instructions to the court below to ascertain what one-half of the agreed purchase price with interest thereon amounts to, and, upon payment thereof into the registry of the court for the benefit of the children, that the children be divested of all their right, title, and interest in and to the land in cpntroversy, and that the same be vested in the plaintiff.

As to the undivided one-half interest of Linus Abbott, he is entitled to one-half of the reasonable yearly rents and profits of the land, with interest thereon since he became the owner thereof by the death of his wife. But he should be charged with one-half of the taxes paid on the land by the plaintiff, with interest thereon since the death of Mrs. Abbott, and also one-half of the value of the permanent improvements made by the plaintiff on the land. The latter should be ascertained by the increased value of the land at the time of the decree by reason of the improvements made by the plaintiff under his contract of purchase. The costs of this court will be divided, each party paying one-half.

The cause is reversed and remanded, with directions to proceed in conformity with the views herein expressed.