Weaver v. Chatterton

The opinion of .the court was delivered by

Dawson, C. J.:

This was an action to determine an interest in certain Lyon county lands, predicated on the terms of the last will and testament of the late F. M. Weaver, who died in 1931. His will was probated in due season, and his widow, plaintiff herein, elected to take under the will.

The beneficiaries under the will were his widow, Louisa Weaver, and three children, Cora Irene Chenoweth, Waldo Otho Weaver, and Glen Herald Weaver. The will was executed in 1920, at which time the testator was about 78 years old, his wife about 54 years, the daughter Cora Irene was married, the son Waldo Otho Weaver was about 30 years, and the son Glen Herald Weaver was about 11 years of age.

By the terms of the will, the daughter, Mrs. Chenoweth, was given 115,000 in cash; the son Waldo was given $3,000 in cash; certain lands were disposed of in terms which have provoked this lawsuit— particularly the fourth paragraph, which reads:

“Fourth, I will, give and devise to my son. Waldo Otho Weaver, the northeast quarter of section 4, township 16, range 12, also the southeast quarter of section 33, township 15, range 12, less a strip of land seven or eight acres of the northwest quarter of section 33, township 15, range 12, north of Little Creek and Elm Cre'ek, 80 rods along the creek bed to the line of said quarter; also the southeast quarter of the northeast quarter of section 33, township 15, range 12, less two or three acres off the northwest corner of said southeast quarter of said northeast quarter. Said two or three acres being enclosed by hedge, to have and to hold and enjoy, but that said real estate not to be sold or mortgaged by my said son Waldo Otho Weaver, during his lifetime.”

(The deduction of a seven or eight acre strip of the northwest quarter of 33-15-12 does not make sense, but that point is immaterial here.)

The fifth paragraph of the will disposes of some 456 acres in favor of Glen Herald Weaver, in terms with which we will not be concerned except to note that these lands, too, like those’ mentioned in the fourth paragraph of the will, are “not to be sold or mortgaged by my son or his guardian during the lifetime of my son Glen Herald Weaver.” The eighth paragraph makes further disposition of these lands in the event Glen Herald dies without issue.

The seventh paragraph of the will makes generous provision for the testator’s widow — promissory notes, mortgages, bonds and securities, corporation stocks, and all claims and accounts to be the property of Louisa Weaver with full right to enjoy the same as long as she remained his widow. These bequests, together with certain undescribed lands, were inventoried in the probate court as the widow’s share at $47,561.75.

The terms of the sixth paragraph of the will, in part, read:

“Sixth, I will, devise and give to my wife, so long as she shall remain my widow, Louisa Weaver, all of the rest and residue of my land and interest in land and real estate not herein before willed and devised, wherever situated, that I may die seized of . . .”

Some years after the death of the testator, Waldo Otho Weaver became a bankrupt and his interest in the northeast quarter of section 4-16-12 and the southeast quarter of northeast quarter of section 33-15-12, described in the fourth paragraph of his father’s will, was sold and conveyed by the trustee of Waldo’s bankrupt estate to Esther M. Chatterton, defendant herein. The pleadings formulated an issue as to the extent of the interest conveyed to defendant by that conveyance. Plaintiff claimed that the interest in the lands which her son received by the fourth paragraph of the will and which was sold by the trustee was a life interest, and that the remainder interest was devised to herself under the sixth paragraph of the will quoted above. Defendants alleged that the fourth paragraph of the will devised a fee simple estate in those lands to Waldo Otho Weaver which had passed by the trustee’s conveyance to Esther M. Chatterton and her husband.

The cause was, tried by the court. Considerable evidence of more or less probative force was adduced, and the trial court gave judgment for plaintiff, accompanying it with a memorandum opinion containing findings of fact and conclusions of law.

Defendants bring the cause here for review, assigning errors which chiefly center about the trial court’s construction of the fourth and sixth paragraphs of the will.

At the outset appellants invoke the statutory rule, G. S. 1935, 22-258 (now superseded by G. S. 1939 Supp. 59-614), which provides that every devise of real estate shall be construed to convey all the estate which the testator could lawfully devise, unless it clearly appears that he intended to convey a less estate. Appellants argue that the text of the will does not make it clearly appear that the testator intended to-convey less than a fee simple estate to his son Waldo Otho Weaver.

This court has often declared that all the pertinent terms of the will should be construed together. ■ (Jack v. Severns, 149 Kan. 229, 86 P. 2d 514; Zabel v. Stewart, 153 Kan. 272, 109 P. 2d 177.) It is not essential that the extent or character of a grant, devise or be'quest be set'down in a single paragraph of a will. Not infrequently a testator’s intention can only be clearly understood by giving due consideration to several paragraphs of his will. (Morse v. Henlon, 97 Kan. 399, 155 Pac. 800, syl. ¶ 2; Bierer v. Bierer, 121 Kan. 57, 245 Pac. 1039; Johnson v. Muller, 149 Kan. 128, 86 P. 2d 569; Pedroja v. Pedroja, 152 Kan. 82, 102 P. 2d 1012.) Here the fourth paragraph of the will gives and devises to Waldo the lands described “to have and to hold and enjoy,” but that said real estate is not to be sold or mortgaged. It is argued that this restriction upon Waldo’s power to sell or mortgage is void, since the testator did not provide in some effective way to enforce that restriction, as suggested in Wright v. Jenks, 124 Kan. 604, 609-610, 261 Pac. 840, syl. ¶ 3; Newell v. McMillan, 139 Kan. 94, 30 P. 2d 126; Guarantee Title & Trust Co. v. Siedhoff, 144 Kan. 13, 58 P. 2d 66, and other familiar cases.

Conceding that the attempted restriction upon the right or power of Waldo to sell or mortgage the lands described in the fourth paragraph of the will is void, then the words “but that said real estate not to be sold or mortgaged by my said son Waldo Otho Weaver,” should be disregarded entirely, and the remaining language of the paragraph devises to Waldo the described lands “to have and to hold and enjoy . ' . . during his lifetime.” The words “during his lifetime” are an adverbial phrase which qualifies the infinitive verbs “to have and to hold and enjoy.” They would be meaningless if limited to the restriction forbidding Waldo to sell or mortgage the lands during his lifetime, for only the living, not the dead, have capacity to sell or mortgage.

Reasoning thus, we think the effective language of paragraph four of the will does make it clear that a less estate than one in fee simple was intended to be conveyed. Plainly and clearly the estate devised to Waldo was a life estate. . We can think of no additional words the testator might have used to make his intention more clear. Moreover, the language of the sixth paragraph of the will must not be ignored. Its language strengthens, if that were needed, the conclusion we are forced to reach. The devise of a life estate to Waldo' does not leave a partial intestacy — which is a result the courts strive to avoid wherever possible in construing a will. The sixth paragraph devises to the widow “all of the rest and residue of [the testator’s] land and interest in land and real estate not hereinbefore willed and devised.” And so by fair and clear construction of paragraphs four and six of the will, a life estate in the lands in dispute was devised to Waldo and the remainder estate to his mother, plaintiff herein. As she is now 85 years of age, the possibility that such remainder estate may yet be defeated by her remarriage need not be considered.

The judgment is affirmed.