Cline v. Kennedy

196 P. 237, 108 Kan. 595, 1921 Kan. LEXIS 231

• Court: Supreme Court of Kansas
• Decided: March 12, 1921
• Docket: No. 23,054
• Status: Published

Opinion

The opinion of the court was delivered by

Dawson, J.:

The plaintiff brought proceedings to partition her maternal grandfather’s homestead, claiming all the interest of her deceased mother, Katherine Erwin.

The heirs of her mother were the plaintiff herself, her sister Mary, who later died unmarried and intestate, and plaintiff’s stepfather, James Erwin.

The trial court determined the proportionate interests of all the parties, including that of James Erwin.

Plaintiff appeals, contending that her stepfather, James Erwin, has no interest in the property. She is altogether wrong, however; for the same statute which invests the plaintiff with a portion of the dead Katherine’s property (Gen. Stat. 1915, §3841), likewise invested the dead Katherine’s husband with a portion, one-half of it. (Gen. Stat. 1915, §§ 3831, 3850.)

It is immaterial that Katherine and James never claimed an interest in the maternal grandfather’s homestead during their married life. If that fact had any potency, it would similarly affect plaintiff’s interest as well as that of her stepfather, because the rights of both are deraigned through Katherine. That James Erwin has married again since Katherine’s death, is also immaterial. A half interest in all of Katherine’s property and rights of property vested absolutely in James when Katherine died. His 'subsequent marriage did not divest him of that interest — no more than plaintiff’s marriage has stripped her of her interest. (Dodge v. Beeler, 12 Kan. 524; Couch v. Wright, 20 Kan. 103.)

The judgment is affirmed.