Topeka Orphans' Home Ass'n v. Williams

The opinion of the court was delivered by West, J.:. This case presents the one question as to the proper interpretation of a clause in the will of Kathryn E. Mills. This will contains about thirty bequests and devises and was drawn by the.testatrix. In eleven of these, provision was made'that in case of the death of the beneficiary the devise or bequest should revert to the estate. In onp paragraph was the following: “To my uncle Benson S. Bennett, Baldwin, Kansas, three thousand dollars, said amount, I desire to be used in purchasing a home and to belong to last member of family living at home, unmarried, after death of parents. Also I desire during the lifetime of my uncle that he may receive the rent from store building,- 429 Kansas ave., Topeka, Kansas, after all necessary expenses are paid — at his death same to revert back to estate.” A subsequent provision is in the following language: “To Orphans’ Home As's’n, Topeka, Kansas, I give and bequeath all that remains of my estate, real estate to be sold as seems advisable, retaining 429 Kansas ave., until last, and when all claims are paid, amount to be turned over to the board of directors, Methodist minister, and J. [317] Groll to be two members of this board and consulted as to best way of using this bequeath, for advantage of said home. I desire two rooms set aside for older grown up orphans needing aid.” The defendants claim that the provision of the will first quoted passed the title of the real estate in question to the estate of the decedent, subject to a life estate in the uncle, and that the subsequent provision was thereby rendered nugatory.. The old rule is invoked that the first taker in a will is preferred, and that a clause in a will cannot be cut down by a subsequent uncertain or ambiguous clause. The case was submitted on agreed facts and documentary evidence. The learned counsel for the defendants urges that when the testatrix used the words “revert back to estate” their legal effect was to vest the fee in her heirs, and he asks: “Can a testator will part of his estate to one or more persons, a definitely described property to his estate, and the remainder to "a residuary legatee or devisee? If so, what becomes of the specific property devised to his estate?” Attention is called to the statute (Gen. Stat. 1915, § 11808) providing that lands devised to one for life, and after his death to his heirs in fee, shall be construed to vest a life estate in the former and a remainder in fee in the latter. Counsel also contends that a devise will not be cut down by a subsequent uncertain or ambiguous clause, and it is argued that a residuary clause can never cut down a previous clause which leaves no residue, and that “all that remains” cannot include what the, testatrix had already given to her estate, which means her heirs. Whatever the force of this logic may be, it must be borne in mind that in the prior clause she was giving a life estate only to the uncle, and the clause about a reverter did not add to, nor detract from, what she was giving, or what she was retaining. All her estate not given remained hers, and no mention of a reverter was necessary. But admitting for the moment that she intended that the fee should go to her heirs, still, before completing the will, she plainly expressed her wish and intention that after the uncle should pass away, and his use for this property cease, the fee should go to the plaintiff with all the rest of her remaining estate. There is no uncertainty or ambiguity about this clause. At most, it is merely in conflict with the former. What then ? Must it be utterly ignored [318] and the former fully recognized? Or, must the intent to be derived from all the provisions in the will be followed? . In Postlethwaite v. Edson, 98 Kan. 444, 155 Pac. 802, the joint devise was to the survivor, and upon, his or her death all the estate not disposed of was devised or bequeathed°to their children. Here was a direct devise to the survivor of all the estate of the one dying first, which meant of course a fee-simple title thereto, but, following this in the same clause was the further and different devise that all of such estate not disposed of by the survivor should vest in the children of the joint devisors. Instead of holding the latter clause void because in conflict with the former, it was held that the language used vested in the survivor a life estate with the power of disposal, remainder to the children. It was said that when a clause manifests a clear intention to devise a fee, this shall not be destroyed by a subsequent disconnected item attempting to reduce such fee to a less estate, unless the entire will indicates that such was the real and fixed intention of the testator, (p. 449.) This decision was adhered to in the same case when here later. (Postlethwaite v. Edson, 102 Kan. 104, Id. 102 Kan. 619, 171 Pac. 769.) A 'similar provision was likewise considered in Scott v. Gillespie, 103 Kan. 745, 176 Pac. 132, following the Edson decision. See, also, Bryant v. Flanner, 99 Kan. 472, 162 Pac. 280, where it was said: “Certain rules, as that a gift or devise in a will can not be cut down by a subsequent provision, have less authority and are applied with greater- discrimination than formerly. Other rules, as that the whole will should be considered and effect given to every part if consistent with a general purpose apparent from the entire instrument, are more depended on.” (p. 476.) It was said in Brown v. Brown, 101 Kan. 335, (syl. ¶ 1), 166 Pac. 499, that “the rule to which all others are subordinate, is that the intention as gathered from all parts of the will is to be given effect.” Of course, the first clause taken by itself would simply give the uncle a life estate, but, under the rule suggested, we have no right to overlook or ignore the subsequent clause which plainly provides that the Kansas avenue property shall be retained until all the other real estate necessary for the payment of debts has been sold, and that unless necessarily sold, it shall go to the Orphans’ Home Association. There is no conflict be [319] tween the two provisions in the will; the one gives a life estate, and the other a fee, if the devise is not necessarily sold to pay debts. There is no difficulty in ascertaining from the language Used by the testatrix what her desire and intentions were, and as it was the disposal of her own property, her wish thus plainly indicated must be followed. (Filed April 12, 1919.) The judgment is affirmed.