DocketNumber： No. 37,422 and 37,007
Judges： Arn, Smith, Thiele
Filed Date： 10/8/1949
Status： Precedential
Modified Date： 11/9/2024
The opinion of the court was delivered by
This appeal arises from a proceeding originally started on February 14, 1946, by the filing of a petition in the probate court by the attorney general on behalf of the state of Kansas for the probate of a document bearing the title “Agreement and Testamentary Disposition” and made under date of May 3, 1945, and later set forth herein. For present purposes it may be said the contractural features were between the board of regents of the state of Kansas, hereafter referred to generally as the proponent, and one Ralph Ellis, and the testamentary disposition was by Ralph Ellis, who died December 17, 1945. An answer containing defenses and objections was filed by Irene S. Ellis, the widow of Ralph Ellis, who is hereafter referred to generally as the respondent or as the widow, and a hearing was had which resulted in a judgment that the instrument should not be admitted to probate as a testmentary disposition and that as a contract to make a testmentary disposition it was void and unenforceable. From the above judgment the proponent appealed to the district court, where it filed a reply to the respondent’s answer alleging the widow had consented to the agree
It may here be said that the parties to the appeal have filed a joint abstract of over 300 pages, the proponent has filed a brief of forty pages and the respondent two briefs of 275 pages, in which the evidence is set forth at great length, and the various contentions of the parties treated in great detail, with a multitude of decisions and authorities cited in support thereof. These have all been considered but, in the very nature of the case, not all can be separately noted and commented upon. Decision upon certain features likewise eliminates necessity for discussion of others.
The “Agreement and Testamentary Disposition” which gives rise to the controversy is as follows:
“Whereas, Mr. Ralph Ellis is the owner and possessor of a Natural History library, consisting of a reasonably large number of volumes on the subject, and
“Whereas, Mr. Ralph Ellis desires to locate and deposit said library with the University of Kansas, located in Lawrence, Kansas, because of his special interest in the Museum of Natural History of the University of Kansas, which is now directed by Dr. E. R. Hall, and
“Whereas, the University of Kansas, by the Board of Regents of the State of Kansas, and Chancellor Deane W. Malott of the University, has expressed the desire to receive and house said library.
“Therefore It Is Agreed between Mr. Ralph Ellis hereinafter referred to as party of the first part, and the University of Kansas, acting by the Board of Regents of the State of Kansas, and Chancellor Deane W. Malott, hereinafter referred to as party of the second part, as follows:
“Party of the first part agrees:
“First, that as evidence of his good will and good faith in the matter and indicating his genuine interest in the University of Kansas in general and its museum of Natural History in particular, he hereby gives, bargains, sells, and conveys to the University of Kansas for its Museum of Natural History his collection of tanned skins and mammal skins with their complementary skulls, skeletons, and zinc cases.
“Secondly, to deposit with the University of Kansas his library of Natural History and to leave the same on deposit with the University for a minimum interim period of three years from the date hereof, subject to the conditions hereinafter set forth.
“Thirdly, that the State of Kansas, the University of Kansas, and the Board of Regents shall not be liable for any losses occurring to said library.
“Party of the second part agrees:
“First, to accept the books for deposit and to house the same in suitably prepared quarters, but it is understood that the University shall not be required to house the books in air-conditioned rooms.
“Secondly, to furnish heat, light, janitor service and general maintenance of quarters in which said library is housed.
*15 “Thirdly, ever to use said library as a part of the teaching and research equipment of the University of Kansas located at Lawrence, Kansas.
“It is further understood between the parties hereto as follows:
“(a) Consistent with the statement above made that said library is to consist of ‘a reasonably large number of books on Natural History’ said library is not to' be considered as a fixed number of books but rather as a flexible, changeable library, or living organism. Mr. Ralph Ellis, as the builder and owner of said library, desires to continue the development and improvement of said library, and to give effect to his.purposes, may loan, sell, or otherwise dispose of portions of said library, and make changes by making new additions or substitutions with utmost freedom. And nothing in this agreement shall preclude Mr. Ralph Ellis from making such changes, sales, substitutions, additions or deletions.
“(b) In making changes in said library, Mr. Ralph Ellis shall be free to dispose of any of the books in the open market without first making any offer to dispose of the same to the University of Kansas or any of its departments, and the failure to offer said books to the University of Kansas shall not be deemed to indicate a lack of a cooperative spirit on Mr. Ralph Ellis’ part.
“(c) In view of the special nature of the library in question, use of the items therein shall be subject to the control and permission of either Mr. Ralph Ellis or the Director of the Museum of Natural History at the University of Kansas.
“(d) As a modification of the three-year minimum period mentioned above, Mr. Ralph Ellis may withdraw substantial parts or even all of said library prior to the expiration of the three-year period, but in that event, Mr. Ralph Ellis engaged to reimburse the University of Kansas for any and all expenses incidental to the University’s undertaking in connection herewith.
“(e) Mr. Ralph Ellis is to have perfect freedom about keeping the books insured at his expense and with any type of floater policy, in his discretion.
“(f) At the termination of the three-year interim period, it shall be proper for the parties hereto to enter into a new agreement, but in default of such new agreement, and the books remaining on deposit with the University of Kansas pursuant to the terms of this agreement, the provisions of this contract shall continue to determine the rights of the parties with full force and effect for such periods of time as the books remain on deposit with and under the care of the University of Kansas and the Board of Regents of the State of Kansas.
“(g) For the period covered by this agreement, the title and all property rights in and to said library, save as modified by this agreement, shall remain with Mr. Ralph Ellis during his lifetime.
“In the event of the death of Mr. Ralph Ellis while said library is housed with the University of Kansas, either during the three-year interim period or thereafter, then the ownership of said books shall pass absolutely to the University of Kansas, and the Board of Regents of the State of Kansas for the use of the University of Kansas. It is recognized that this provision is designed to become operative at death and is therefore to be construed as an agreement both to make a testamentary disposition of property, and as a testamentary disposition as such. In the latter respect it requires due witnessing and attestation as required by the statute governing the execution of wills. Mr. Ralph Ellis accordingly makes this disposition of his library to take effect*16 at his death, as a codicil to his will, and revoking any and all former testamentary dispositions of such library.
“In Witness Whereof, on this third day of May, 1945, the Board of Regents of the State of Kansas has caused this agreement to be signed by its Chairman and Secretary and Chancellor Deane W. Malott, and its seal to be affixed hereto, and Mr. Ralph Ellis has signed said contract.
“The Board of Regents of the State of Kansas, by
O. S. Stauffer
Chairman
Hubert Brighton
Secretary
Deane W. Malott
Chancellor, University of Kansas
“Ralph Ellis
Mr. Ralph Ellis
“Personally appeared before me this third day of May, 1945, Ralph Ellis, Deane W. Malott, Oscar S. Stauffer, and Hubert Brighton who signed said instrument and acknowledge the same.
Karl Klooz
Notary Public
My Com. expires Aug. 1, 1946.
“Mr. Ralph Ellis further states that ids signature is also made to effect the bequest of the library and that he hereby publishes, and declares that the clause bequeathing the library in question to the University of Kansas and the Board of Regents of the State of Kansas in the event of his death constitutes a testamentary disposition of his library of Natural History superseding any-and all other testamentary dispositions of the same heretofore made by him. Said declaration, publication and signing is made in the presence of F. J. Moreau, Raymond Nichols, E. R. Hall, who, at his request, in his presence, and in the presence of each other, have hereunto subscribed their names as attesting witnesses.
“E. J. Moreau,
Raymond Nichols,
E. R. Hall
“Dated this third day of May, 1945.”
The “Agreement” giving rise to the contentions that the widow consented, or did not, to the first agreement is as follows:
“This Agreement made this third day of May, 1945, between the University of Kansas, acting by its Board of Regents and Chancellor and Mrs. Ralph (Irene) Ellis, Witnesseth as follows:
“Whereas, Mr. Ralph Ellis, husband of Mrs. Ralph (Irene) Ellis is the owner of a library of natural history consisting of a reasonably large collection of books on that subject, and
“Whereas, Mr- Ralph Ellis proposes to house and deposit said library with the University of Kansas, located at Lawrence, Kansas, and
*17 “Whereas, the said contract provided that in the event of the death of Mr. Ralph Ellis during the time when said library is housed by the University of Kansas, the said library is to pass to the Board of Regents of the State of Kansas and the said University of Kansas absolutely, and
“Whereas, said contract is to operate as a testamentary disposition by Mr. Ralph Ellis of said library to take effect at the death of Mr. Ralph Ellis, and
. “Whereas, Mrs. Ralph (Irene) Ellis was present when the terms of that proposed contract and testamentary disposition were agreed upon, and that Mrs. Ralph (Irene) Ellis is entirely familiar with all the terms of said contract, a copy of which is hereto attached, and made a part hereof.
“Now Therefore it is agreed that in consideration of the above premises and of the undertakings made by the University of Kansas and the Board of Regents of the State of Kansas with reference to the housing of said library pursuant to the terms of the contract above referred to, Mrs. Ralph (Irene) Ellis hereby agrees that she joins with her husband, Mr. Ralph Ellis, in the making of said contract, appoints him as her agent to dispose of any interest that she may have in said library, and approves the testamentary disposition of said library in the event of the death of Mr. Ralph Ellis during such time or times as said library is on deposit with the University of Kansas. Further, Mrs. Ralph (Irene) Ellis agrees that in the event of the passing of said library to the University of Kansas pursuant to the terms of said contract and testamentary disposition by her husband, Mr. Ralph Ellis, she will make no claim therefor and that she hereby expressly waives any and all rights which she may have had to said library under the laws of any state which may be deemed applicable.
“In witness whereof the parties hereto have affixed their signatures and acknowledged the same.
“The University of Kansas, by the Board of Regents of the State of Kansas and the Chancellor of the University.
By 0. S. Stauffer,
Chairman
By Hubert Brighton,
Secretary
By Deane W. Malott, Chancellor.
Mrs. Ralph (Irene) Ellis
Mrs. Ralph (Irene) Ellis
“F. J. Moreau
Raymond Nichols
E. R. Hall
Witnesses
“Personally appeared before me the above Oscar S. Stauffer, Hubert Brighton, Deane W. Malott and Mrs. Ralph (Irene) Ellis, personally known to me, and who signed and executed the above writing in my presence and acknowledge the same. “Karl Klooz,
Notary Public.
“My commission expires August 1, 1946.”
We shall first take up the respondent’s contention that the trial court erred in finding that Ralph Ellis was possessed of mental capacity to make the above “Agreement and Testamentary Disposition.” Inasmuch as other contentions later considered require some statement, in reviewing the evidence and the findings of the trial court thereon we shall not limit our statement to matters dealing with Ellis’s competency. However, we shall not dwell on details. The evidence disclosed that Ralph Ellis was born in 1905, was the son of wealthy parents, and that his father had been dead for some years. For years Ellis had been interested in the study of ornithology and had collected a large and valuable library dealing with the subject, its purchase being made largely with funds given him by his mother. He kept this library in California until he brought it to Kansas. Ellis suffered from two diseases, one affecting his white blood corpuscles, the other causing him to have an inordinate desire for liquids, which he satisfied not only by water but to a considerably extent by beer and to a lesser extent with stronger liquors. In 1940 Ellis’s mother filed a complaint in the proper court in California, seeking to have him committed as a mentally ill person, charging that he had threatened to commit suicide, had set fire to his garage and had threatened to set other fires and that he had on numerous occasions thrown bottles through windows of business establishments. As a result he was adjudged mentaly ill but the judgment expressly found he was not an insane person. He was committed to a sanitarium where his restraint was gradually lessened and ultimately he came and left at his pleasure. In the early part of 1943 he met and later in the same year married the respondent. His condition improved for some time thereafter but in 1944 he committed acts of destruction which caused him to be rearrested and returned to the sanitarium. About a week after that return he escaped, and with his wife went to Nevada and then on to New York where he negotiated with two New York institutions for deposit of his library under conditions somewhat similar to those included in the agreement quoted, or to sell it through persons engaged in the sale of libraries. In 1924 Ellis became acquainted with Professor Raymond H. Hall, then a member of the faculty of the University of California at Berkeley. In 1944 Hall became chairman of the department of zoology and director of the museum of natural history at the University of Kansas, and when he came to Kansas he
Insofar as mental competency is concerned, respondent directs our attention to the rule that for one to be competent to make a will it is necessary for him to be able to understand what his property consists of, who are his relatives and friends and who are the natural objects of his bounty and also that he know what he wants to do with his property, citing Stayton v. Stayton, 148 Kan. 172, 81 P. 2d 1, and other of our cases to like effect. That the test is properly stated need not be debated. Respondent then devotes many pages of her brief to a detailed analysis of the evidence from which she concludes the evidence shows mental incapacity. We think the case may not be so disposed of. The trial court reached a different conclusion from evidence which was in dispute. The very course of dealing whereby Ellis sought to find a depository for his library, including not only the University of Kansas but institutions in New York, shows that he had a keen appreciation of his ownership and the worth of the library, and the purposes for which it was collected and the uses to which it could be put. He also knew he possessed the securities which he had with him in Law
II
Under two headings respondent contends that it is the duty of the trial court to make special findings on all material issues when requested by either party, and that the findings made are erroneous, sketchy and incomplete, in some instances unsupported by the evidence, and in others that the trial court failed to make findings on vital issues. Many pages of the brief are devoted to a discussion of these contentions in which detailed reference is made to particular findings. The basis for the complaint is substantially the same as was included in respondent’s motion to strike or modify the trial court’s findings, wherein thirty-nine amendments were proposed. This opinion would be unduly extended to take up and discuss each particular item. They have all been examined. In some instances the purpose in the district court on the motion, and in this court on the appeal, is to obtain a finding favorable to the respondent’s view, in others to compel the trial court to accept as true respondent’s evidence and in others to obtain findings on facts which, while perhaps relevant, are immaterial. In some minor instances the complaints, in and of themselves, may have merit but that the refusal of the court to extend its findings was prejudicial does not appear. And it seems to us this is recognized by the respondent who has not only filed a very complete abstract, but has argued the evidence in detail, and in her brief, after directing attention to our power to render final judgment (G. S. 1935, 60-3317) calls our
Ill
Competency having been determined, we next direct attention to whether or not the instrument in question was a testamentary disposition or will, or was as the trial court seems to have found, only a contract to make a will. The question arises under the ruling of the trial court sustaining respondent’s demurrer to the proponent’s evidence. It seems clear from the record the ruling was made because of a claim the document was not “signed at the end thereof by the party making the same” as is required for the valid execution of a will under G. S. 1947 Supp. 59-606. In support of the trial court’s ruling respondent directs our attention to our decision in In re Estate of Bond, 159 Kan. 249, 153 P. 2d 912, wherein it was held that under the facts of that case there was no signature. It may be conceded that the statute means what it says. Waiving any question of sufficient execution otherwise authority may be found that a will not signed at the end is an entire nullity, or that such a will is good as to all that part which precedes the signature, but we need not enter into such a discussion.
We note respondent’s contention that the document which Ellis signed concluded with a witnessing clause that “Ralph Ellis has signed said contract,” and that from that it is clear he did not sign the document as a will. That contention cannot be sustained. There was only one document, both contractual and testamentary and he signed all, not merely a part, of it.
A mere reading of the last paragraph preceding the witnessing clause of the “Agreement and Testamentary Disposition” shows that Ellis declared, “In the event of the death of Mr. Ralph Ellis . . . then the ownership of said books shall pass absolutely to the University . . . Mr. Ralph Ellis accordingly makes this disposition of his library to take effect at his death . . .” That the above language is testamentary need not be debated. That Ellis signed the document at a place after the above statement must be conceded. Why then was it not signed at the end? It is argued that the attestation clause is testamentary and that he did not sign at the end thereof and therefore the execution did not
“The foregoing instrument of writing was on the - day of - signed by the above named testator and by him declared to be his last will and testament, in our presence; and we, at his request and in his presence and in the presence of each other, have signed our names as witnesses thereto.”
In our opinion the declaration the document was a will did not make a testamentary disposition — that had been done. At most it was a publication (In re Estate of Koellen, 162 Kan. 395, Syl. ¶ 6, 176 P. 2d 544). The trial court erred in sustaining the demurrer on the ground the will had not been signed at the end thereof.
IV
Respondent further contends that the testamentary disposition was invalid under G. S. 1947 Supp 59-605 (§ 41 of the probate code) where, in substance it is provided that where a will is written or prepared by the sole or principal beneficiary who, at the time of writing or preparing the same, was the confidential agent or advisor of the testator or who occupied at the time any other position of confidence or trust to the testator, the will shall not be held valid unless it shall affirmatively appear the testator read the will and had independent advice thereto, and our attention is directed to many of our decisions where the statute was under consideration. Among these is Flintjer v. Rhem, 120 Kan. 13, 241 Pac. 1087, where it wras said that the statute applies only where the will was written or prepared by the sole or principal beneficiary and who is the confidential agent or legal adviser or who occupies some other position of confidence or trust to the testator and that when those conditions exist the will shall not be held valid unless it be shown that the testator knew or read the will and had independent advice with respect thereto. Respondent makes an involved argument that the board of regents has charge of the University with power to remove executive heads, deans, professors and other employees and that none of them are disassociated from the interests of the donee. With that as a premise she argues that although the evidence disclosed that Ellis read the will, it likewise disclosed that although
Respondent also argues that the “Agreement and Testamentary Disposition” is not a contract to make a will nor if it were such a contract, is it enforceable. Our holding the testamentary provision is good as a will, makes it unnecessary to discuss this contention.
VI
Consideration of respondent’s contention that the trial court was without power to change its decision can1 only be understood when certain facts are stated.
In its conclusions of fact, the trial court found facts leading to its conclusion of law that the fact respondent signed the agreement of May 3, 1945, approving the testamentary disposition made by her husband, did not conclusively deprive her of an interest in the library and it concluded further that her attitude in the action was tantamount to an election on her part to take under the law of descents and distributions of the state of Kansas, and it then concluded:
“The Court further concludes that the University of Kansas and the respondent Irene S. Ellis are each entitled to a one-half interest in the library in question, subject to the rights of creditors.”
In due time the proponent filed its motion for a new trial and the respondent filed her motion for a new trial, alleging erroneous rulings and that the decision was contrary to the evidence, and her motion to strike or modify the conclusions of fact and of law, included in which was the factual situation of respondent’s execution of the approval and the legal conclusion thereon. For present purposes it may be said these motions were denied on February 9,1948. (We pause here to note that terms of court in Douglas county commence on the first Mondays of February, May and November.) On February 12, 1948, respondent served her notice of appeal to the supreme court. On April 26, 1948, each party submitted a journal entry of judgment, and the trial court at that time struck from its conclusions of law the paragraph quoted above, and thereafter respondent filed another notice of appeal covering the matter.
Respondent directs our attention to 4 C. J. S. 1089 that although jurisdiction remains in the trial court until an appeal is taken, as soon as that is done the jurisdiction of the appellate court attaches and that of the trial court ceases, and to 4 C. J. S. 1091 that unauthorized proceedings in the lower court after jurisdiction has been acquired by the appellate court are generally held to be void, as well
Under the code of civil procedure (G. S. 1935, 60-3007) the district court is given the power to modify its judgments under the conditions there specified, and that it has general power and control over its judgments during the term in which they are rendered has been repeatedly held as is shown by cases cited in those later mentioned. The fact an appeal has been taken does not take away that power in a proper case. In State v. Langmade, 101 Kan. 814, 168 Pac. 847, it was held:
“During the term at which judgment has been rendered the district court has power to set aside an order denying a motion for a new trial, to set aside the judgment, and to grant a new trial, although an appeal has been taken to the supreme court.” (Syl. ¶ 1.)
That case was followed in State v. Bowser, 154 Kan. 427, 118 P. 2d 1055, where it was held that:
“. . . a district court does not lose jurisdiction to set aside or modify, within the term, its judgments or orders, by the mere fact that appeal therefrom has been taken to the supreme court.” (Syl. ¶ 1.)
Under the rule of these cases the trial court did not err in modifying its conclusions of law. In its judgment the trial court adjudged that the “Agreement and Testamentary Disposition” was entitled to probate and that the library and property mentioned therein became the property of the proponent upon the death of Ralph Ellis “subject to the interest of the said Irene Ellis, respondent, widow.” The trial court had the power to alter its judgment as heretofore set out.
VII
Although the proponent appealed from that part of the judgment holding that Irene S. Ellis had an interest in the library and that her consent to the “Agreement and Testamentary Disposition” was invalid, it suggests the possibility the question of the widow’s consent was not properly before the district court and that it had no jurisdiction. With that suggestion we do not agree. The widow put the matter of her consent in issue by her answer filed in the probate court. After appeal was taken to the district court the
VIII
There is no contention but that under G. S. 1947 Supp. 59-602, in effect at all times material, or under G. S. 1935, 22-238, which was in effect before July, 1939, neither spouse could will away from the other more than one-half of his property, subject to certain rights not presently involved, unless the other consented thereto in writing executed in the presence of two or more competent witnesses. There is no contention that the document under consideration was not executed in the manner provided, nor, for what it may be worth, that the testamentary disposition, to which consent was given, did not dispose of the entire estate of the testator in the property mentioned. The question is whether the document, admittedly signed and witnessed, constituted a valid consent.
There is little or no dispute in the evidence, a part of which has been stated heretofore and some of which is here repeated. Ellis had been making efforts to dispose of his library and Mrs. Ellis was aware thereof. She had gone to California and looked after getting the library boxed for shipment to New York. She knew that destination had been changed to Lawrence, Kan., and that the books were there when the first conversations were held early in March, 1945, and was present when the preliminary statements as to disposal of the library and her consent thereto were dictated, and she knew the terms of the proposed contract, and knew that Ellis proposed that in the event of his death within the period the library was to remain at the university, the library was to become the absolute property of the university, and by a separately dictated arrangement she agreed that in the event of the death of Ellis, she waived all claim to the library. When the final drafts had been prepared and were ready for execution on May 3, 1945, she was present and the documents were read, paragraph by paragraph, and after her husband had executed his “Agreement and Testamentary Disposition” to which she raised no objection, she then executed the contract prepared for her in which she expressed familiarity with the contract executed by her husband and joined with him in making the disposition of the library, in which she
The question is whether the document executed by Mrs. Ellis was a binding consent under the statute heretofore mentioned, which contains no specification of standards for such consent. It may be noted there is no controversy as to the manner in which it was executed, nor is there any claim of oppression or fraud, and those things, present in some cases, need no consideration here. It will be observed that the document at no place contains the word “consent” but does contain the words “approve” and “waive.” Under our decisions, however, it is not important what precise word or words be used — the ultimate matter for determination is whether the content of the written document indicates an acceptance of the terms of the will and a willingness that the testator make the disposition set out in his will. See Jack v. Hooker, 71 Kan. 652, 81 Pac. 203; Weisner v. Weisner, 89 Kan. 352, 355, 131 Pac. 608; and Moore v. Samuelson, 107 Kan. 744, 748, 193 Pac. 369.
The question of sufficiency of consent by one spouse to the will of the other has been treated in many of our decisions dealing with diverse facts and circumstances, but we deem it unnecessary to take up and analyze each of those decisions. Among them are Jack v. Hooker, supra; Weisner v. Weisner, supra; Chilson v. Rogers, 91 Kan. 426, 137 Pac. 936; White v. White, 103 Kan. 816, 176 Pac. 644; Moore v. Samuelson, supra; Menke v. Duwe, 117 Kan. 207, 230 Pac. 1065; Williams v. Sechler, 127 Kan. 314, 273 Pac. 447; Woodworth v. Gideon, 136 Kan. 116, 12 P. 2d 722; and cases cited therein. The rule deduced from, all of the decisions is that the consent must be given freely and understandingly. It follows as a matter of course that whether that consent was freely and understandingly given is to be determined as of the time the document evidencing consent was executed. For instance, in Pirtle v. Pirtle, 84 Kan. 782, 115 Pac. 543, it was held that a wife could not repudiate her consent because she subsequently discovered that her husband’s estate was larger than she anticipated. In Weisner v. Weisner,
It may be conceded that in many of our decisions, stress is laid on the fact that the consenting spouse was not advised as to his or her rights under the statutes pertaining to descents and distributions, but in those cases that knowledge, or lack of it, went to the-question whether the consent there involved was freely and understandingly given; but it follows that if a review of the circumstances shows that the consenting spouse was fully aware of the estate of the other, and of the disposition made in the will, knew for some period of time that the particular disposition was tu be made, made no effort to inform herself, made no protest to documents of testamentary disposal and her consent thereto being prepared and without making any effort to ascertain her rights, executed the consent, it must be held either that she acted intelligently or that she was willing to act unintelligently. To recapitulate very briefly, the trial court’s findings, supported by evidence, show that respondent knew of her husband’s efforts to dispose of the library and was willing to do whatever he might want her to do, she had charge of its being packed and shipped from California, she sat by and heard the preliminary draft made providing that if her husband died while the library was at the University, it was bequeathed to the University; that her consent would be required; that about six weeks later final drafts were ready, were read paragraph by paragraph in the presence of her husband and herself; that her husband expressed satisfaction; that she made no protest whatever, and in due time executed the instrument prepared for her, all with the formalities required by statute. The trial court’s finding that respondent did not
As we view the matter the trial court’s conclusion of law that the document should not be held or considered a binding consent cannot be upheld.
IX
In its judgment the trial court taxed the costs to the estate of Ralph Ellis, deceased, and respondent complains that that action constituted an abuse of discretion, contending that she won a substantial victory in the district court and that the costs should have been taxed to the proponent. In her specifications of error this particular one is not included, and in her brief respondent cites no authority in support of her argument. Under our code of civil procedure in actions for the recovery of money only or for the recovery of specific real or personal property, costs are allowed as a matter of course to the prevailing party, but in other cases (and this is one) the court may apportion the costs as in its discretion it may think right and equitable (G. S. 1935, 60-3704, 3705, 3706). In view of the whole record, we are of opinion the judgment as to the costs may not be vacated.
X
From what has been said, it follows that the trial court’s ruling on the respondent’s demurrer to the proponent’s evidence is reversed, and that judgment should be entered by it, admitting the “Agreement and Testamentary Disposition” made by Ralph Ellis under date of May 3,1945, as the last will and testament of the said Ralph Ellis; that the trial court’s judgment that the library in question became the property of the proponent upon the death of Ralph Ellis, subject to the interest of Irene Ellis, respondent, widow, is reversed insofar as it adjudges that said Irene Ellis has any interest, and that judgment should be rendered by the trial court adjudging that the proponent became the absolute owner of said library, and that in all other particulars the judgment of the trial court should be affirmed, and that the cause should be remanded to the trial court for further proceedings consistent herewith. And it is so ordered.