DocketNumber: No. 20,486
Citation Numbers: 99 Kan. 359, 161 P. 646
Judges: West
Filed Date: 12/9/1916
Status: Precedential
Modified Date: 10/18/2024
The opinion of the court was delivered by
In 1899 Anna Steinborn made a will by which she
gave certain small bequests to some of her children and undertook to devise to Louisa, August and John certain real estate.
The suit known as case No. 5031 set up a mistake in the description in the will and asked for its correction in accordance with the intention of the testator, the petition therefor being verified by August Steinborn, and the decree was entered March 14, 1906, in accordance with the prayer of the petition. The abstract states that in the trial of this case all of the papers and proceedings in case No. 5031 were considered by the district court as sufficiently pleaded and were examined and considered on the- demurrer. The court sustained a demurrer to the amended petition and from this ruling the plaintiff appeals.
It seems that at the succeeding term leave was asked to re-docket the case for further orders, which was denied, and an attempt is made to dismiss the appeal on account thereof, but
On the part of the defendants it is urged that the court had no jurisdiction to change the will’after it had been probated and that its attempt to do so and the decree were and are without legal force and effect, and hence their title has not been perfected and the amount promised the plaintiff has never become due or payable. Plaintiff responds that the result of the former suit was in effect to quiet the title to the land against the plaintiff in favor of the defendants who have ever since been in possession claiming ownership, and treating the matter as the quieting of their title, and hence they can not be heard to assert its invalidity or ineffectuality.
Much discussion is had as to the distinction between correcting and changing -a will which need not be considered for the reason that the case turns on another matter.
The court had jurisdiction of case No. 5031 and whether or not it properly changed the will so as to vest the plaintiffs therein with the title' they desired, the decree undertook so to do and has never been appealed from, and the beneficiaries thereof can not be heard now to assert its invalidity as a defense to their obligation to the heirs against whom such decree was taken.
The contract to pay as soon as clear title to the land should be obtained, the alleged recognition of this obligation by the payment of $100 thereon two years before this action was brought, with the defendants’ alleged claim of full title, conceded by the plaintiffs, and their continued possession of the land under such claim, in the absence of anything to the contrary, makes out a case for the plaintiff for the amount unpaid on his claim.
The j udgment sustaining the demurrer to the amended petition is reversed and the cause is remanded for further proceedings in accordance herewith.