Kinne v. Phares

Supreme Court of Kansas

Kinne v. Phares

100 P. 287, 79 Kan. 366, 1909 Kan. LEXIS 196

CourtSupreme Court of Kansas

DecidedJanuary 12, 1909

DocketNo. 15,807

StatusPublished

This text of 100 P. 287 (Kinne v. Phares) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kinne v. Phares, 100 P. 287, 79 Kan. 366, 1909 Kan. LEXIS 196 (kan 1909).

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Opinion

The opinion of the court was delivered by

Smith, J.:

Had the deceased husband made no will whatever the entire section of land in question would have fallen to his widow. (Gen. Stat. 1901, § 2521.) Now, let us suppose that, subject to the rights of the widow, the will had been valid as to the charities of Evanston, but that instead of willing an undivided one-half of the estate to the charities of Evanston and an undivided one-half to his heirs the testator had willed the north half of the section to the charities and the south half to his heirs, and that the widow then elected to take, not under the will, but under the law: would not the widow have taken an undivided one-half interest in the south half of the section as well as in the north half thereof, and thus leave to the heirs only one-quarter section of the land ? We think the statute cited answers the question, and thát the interest of the heirs is not changed because the testator devised to them an undivided one-half of the entire section instead of dividing the section into halves. The void bequest can not inure to the benefit of the “heirs” in the [368]*368sense that word is used in the will and in this case, the widow being distinguished from the heirs.

One-half of the portion of the estate devised to the heirs fell to the widow upon her renunciation of, or failure to elect to take under, the will. And, the will being void as to the portion of the estate attempted to be devised to the charities, that portion was unaffected by the will, and fell to the widow as though no will had been made. The widow in this case stands in the stead of a residuary legatee, or in the stead of a sole heir where there is no residuary legatee. (See 18 A. & E. Encycl. of L. 760, 761; Schmucker’s Estate v. Reel, 61 Mo. 592; Davis v. Davis, Executor, etc., et al., 62 Ohio St. 411, 57 N. E. 317, 78 Am. St. Rep. 725; Yates v. Yates, 9 Barb. [N. Y.] 324; Lilly v. Menke, 143 Mo. 137, 44 S. W. 730.)

As the widow, by not electing to take under the will, renounced all the benefits of its provisions, the heirs, of course, took a one-fourth interest in the land, unencumbered by the life-estate therein.

The judgment of the court is affirmed.

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The opinion of the court was delivered by

Smith, J.:

Had the deceased husband made no will whatever the entire section of land in question would have fallen to his widow. (Gen. Stat. 1901, § 2521.) Now, let us suppose that, subject to the rights of the widow, the will had been valid as to the charities of Evanston, but that instead of willing an undivided one-half of the estate to the charities of Evanston and an undivided one-half to his heirs the testator had willed the north half of the section to the charities and the south half to his heirs, and that the widow then elected to take, not under the will, but under the law: would not the widow have taken an undivided one-half interest in the south half of the section as well as in the north half thereof, and thus leave to the heirs only one-quarter section of the land ? We think the statute cited answers the question, and thát the interest of the heirs is not changed because the testator devised to them an undivided one-half of the entire section instead of dividing the section into halves. The void bequest can not inure to the benefit of the “heirs” in the [368]*368sense that word is used in the will and in this case, the widow being distinguished from the heirs.

One-half of the portion of the estate devised to the heirs fell to the widow upon her renunciation of, or failure to elect to take under, the will. And, the will being void as to the portion of the estate attempted to be devised to the charities, that portion was unaffected by the will, and fell to the widow as though no will had been made. The widow in this case stands in the stead of a residuary legatee, or in the stead of a sole heir where there is no residuary legatee. (See 18 A. & E. Encycl. of L. 760, 761; Schmucker’s Estate v. Reel, 61 Mo. 592; Davis v. Davis, Executor, etc., et al., 62 Ohio St. 411, 57 N. E. 317, 78 Am. St. Rep. 725; Yates v. Yates, 9 Barb. [N. Y.] 324; Lilly v. Menke, 143 Mo. 137, 44 S. W. 730.)

As the widow, by not electing to take under the will, renounced all the benefits of its provisions, the heirs, of course, took a one-fourth interest in the land, unencumbered by the life-estate therein.

The judgment of the court is affirmed.

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100 P. 287, 79 Kan. 366, 1909 Kan. LEXIS 196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kinne-v-phares-kan-1909.

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