Jack v. Hooker

The opinion of the court was delivered by Johnston, C. J.: The principal question presented for decision is, Did Mary T. Jack give a valid consent to take the allowance made for her in the will instead of the share she might have taken under the statute? In the statute relating to wills it is enacted that “no man while married shall bequeath away from his wife more than one-half of his property, nor shall any woman while married bequeath away from her husband more than one-half of her property. But either may consent in writing, executed in the presence of two witnesses, that the other may bequeath more than one-half of his or her property from the one so consenting.” (Gen. Stat. 1901, §7972.) To make the consent effective it must be in writing, and executed in the presence of two witnesses. The deed made in connection with the other papers is a written relinquishment, and although ‘the names of the subscribing witnesses are not attached to the instrument it is alleged to have been executed in the presence of two witnesses. It is not required that the witnesses shall sign the writing, but only that it shall be executed in their presence. (Gen. Stat. 1901, §7972; Neuber v. Shoel, 8 Kan. App. 345, 55 Pac. 350.) Nor is the designation of the instrument giving consent important, if it amounts to a written agreement to relinquish the statutory share, and that more than one-half of the property may be devised elsewhere. A valid antenuptial [656] contract has been held to be sufficient to change the descent of property and bind a person to take the portion agreed upon instead of the statutory share. (Hafer v. Hafer, 33 Kan. 449, 6 Pac. 537; King v. Mollohan, 61 id. 683, 60 Pac. 731.) It is insisted that although the deed is in writing, and the execution witnessed by the proper number of persons, it does not of itself clearly show that it was intended to be a consent to the provisions of the will. While the deed does not specifically recite that it is intended to operate as a consent, nor refer expressly to the other papers in connection with which it was executed, they appear to have been part of one transaction, and combine to effect a single purpose, and hence we may properly look to those papers, and the circumstances under which they were executed, to interpret the deed and determine the purpose that it was intended to accomplish. All the papers were executed substantially at the same time, and in the presence of those concerned in the disposition of the property. It was the manifest purpose to make definite and final disposition of the property and to adjust the rights of all at that time. The testator had a daughter, and his wife had a son, to be provided for. First, he desired that his wife should have the benefit and earnings of the whole of the land during her lifetime, instead of title to the half, which the law would give her, and that it should be managed by her son, who under the lease was to enjoy the possession of the property and pay the rentals to his mother. Then, at her death, when the life-estate had terminated, he wished it to go for the benefit of, and absolutely to, his own daughter. The will expressly provided for his wife and daughter, the lease gave the possession to the wife’s son, and in the deed there was consent and an obvious attempt to give the fee to the daughter. The connection between the will and the deed is easily apparent. Each of them [657] plainly refers to the life-estate of the wife. As that estate was provided for in the will alone the reference to it in the deed is internal evidence to connect it with the will. In this respect the case is quite unlike the one cited of Sill v. Sill, 31 Kan. 248, 1 Pac. 556, where the deeds sought to be linked with a will had been executed about a year before the making of the will, and bore no evidence of any connection with the will. In the present case the reference in the deed by Mrs. Jack to the life-estate, arising from the terms of the will, and the reservation of that estate to herself, were an acknowledgment that she was acquainted with the provisions made for her in the will, and by placing the title in the daughter subject to her life-estate she indicated her desire to confirm and give consent to the provisions of the will. Writings of this character should be so construed as to give every part of them force and effect, if possible, and unless the deed is construed in connection with the will it will be inoperative, and the evident purpose of the parties thwarted. It is evident that the parties, as well as the notary who assisted them, were unacquainted with legal forms and the best methods of accomplishing their purpose; but when the papers executed are construed together it is manifest that all intended that Mary T. Jack should have a life-estate in the entire property, and that the deed was executed to evidence her consent to the provisions of the will. The decision of the court with respect to this feature of the case is sustained, but its judgment canceling the lease must be modified. It was executed as a part of the transaction which has been upheld, and as nothing has been alleged in the petition or indicated upon the face of the lease that renders it invalid no reason is seen why it should be set aside. The judgment is, therefore, modified as to the lease, and in all other respects it is affirmed. All the Justices concurring.