der the provisions of this act, it shall ascertain the amount of said matured and maturing bonds which have not been paid, and shall thereupon cause an ordinance to be enacted providing for the issuing of bonds sufficient to refund all its matured bonded indebtedness and interest thereon, and in such ordinance shall prescribe the denomination of said bonds to be issued; the time of payment; and the interest same shall bear; the city clerk shall keep a record of all bonds issued, and of all bonds paid thereby; and no such bonds issued under the provisions of this act, or proceeds derived from the sale thereof shall be delivered or paid to the holder of any matured bonds, until such matured bonds

duly canceled, have been filed with the clerk of said city."

See, also, Tatlow v. Bacon, 101 Kan. 26, 165 Pac. 835, 14 A. L. R. 269.

Again, if the act was interpreted as to apply only to matured bonds, it must still be held that those sought to be refunded had` been matured by the city through the exercise of the option definitely written into the original bonds, and should be treated as matured obligations. The bonds, as we have seen, contained a stipulation reserving to the city the right to call in and pay the bonds at any time after 10 years from the date thereof. The bonds were rightly called, provision was made for their payment, and thereafter the bonds might rightly be classed as matured obligations.

We conclude that the city was entitled to the relief asked, and therefore judgment must go in its favor.

All the Justices concurring.

ATEN et al. v. TOBIAS et al. *
(Nos. 24707, 24841.) '

(Supreme

It will be noted that the first part of this section speaks only of maturing obligations, while further along it refers to both matured and maturing obligations, and then, in a later part relating to the passage of an ordinance for the refunding of the bonds, refers only to matured bonds. As the title and first section of the act relates to and embraces the refunding of all outstanding bonds, and the second treats of both maturing and matured bonds, it is evident that both were within the contemplation of the Legislature, and that its intention was to provide for the refunding of both matured and maturing obligations. The confusion of the terms used. does not becloud that purpose. From the use of the expression "that when any city shall determine to refund its outstanding maturing obligations, under the provisions of this act," there is as much ground for saying that only maturing obligations were within the intent of the Legislature as to claim that other expressions were intended to limit the application of the act to those that had matured. We think there, is an ellipsis in the clauses which mention only matured bonds, an unintentional omission of the term maturing, and upon a reading of the whole act the intention of the Legislature is clear, and that effect should be given to its manifest intention to include both.

Where the purpose of the Legislature is plain, the misuse or omission of a word or a phrase will not defeat the evident purpose, and courts are warranted in supplying words which are consistent with the context of the act and the manifest intention of the Legislature. In Coney v. City of Topeka, 96 Kan. 46, 149 Pac. 689, it is said:

"It is familiar law that legislative enactments are not any more than any other documents to be defeated on account of errors, mistakes, or omissions. Where one word or figure has been erroneously used for another or a word omitted, and the context affords the means of correction, the proper word or figure will be deemed substituted or supplied. This is only making the naked letter of the statute yield to its obvious intent."

Court of Kansas. Nov. 10, 1923.)

(Syllabus by the Court.)

Wills 230-Wife's consent to testamentary disposition of her property by her husband held a renunciation of ownership.

Where a testator devises property the title to which is held by his wife, and she gives her written consent to such testamentary disposition of it, the wife thereby in effect renounces her right of ownership in the devised property and bars all persons whose rights thereto must be claimed under and through her. 2. Remainders 3-Precedent estate sup· porting devise of remainder not defeated because beneficiaries are forbidden to alienate.

A precedent particular estate in lands sufficient to support a devise of the remainder is created by the erection of a trust estate for the duration of the lives of certain designated beneficiaries who are to enjoy the net rents and profits thereof, and such precedent particular

estate is not defeated because the beneficiaries are forbidden to alienate or incumber it during their period of enjoyment.

3. Wills 190-Change of testator's attitude of disapproval of disinherited daughters' marriages held not a "change in condition or circumstances" revoking will.

The fact that a testator who in his will partially disinherited two daughters, because he disapproved of their marriages and disliked their husbands, afterwards became reconciled to the marriages, and came to have a high regard for their husbands, and often declared the daughters should share equally in his personal estate with his other children, does not operate to revoke that portion of the will which made disposition of the testator's personal es

tate.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
*Rehearing denied December 15, 1923.

(220 P.)

4. Wills 190-Increase In personalty after making of will held not a revocation by implication of law.

A great increase in a testator's personal estate between the time of the making of his will, when it was worth $8,000, and the time of his death seven years later, when it was worth $90,000, which increase grew out of the testa-1 tor's savings of income and not from any change in the nature of the property owned by him at the time his will was made, does not by implication of law amount to a revocation of the bequest of the personal estate.

5. Wills 405-Costs of unsuccessful attack

on will properly borne by all life tenants who

would have benefited if will were set aside.

made a will, disposing of all his property including the home place. In substance, the will gave to his wife, Susan E. Tobias, their household goods, $10,000 in cash, and a life interest in the home place, of which Susan was then the title holder.

The immediate family of Cyrus and Susan consisted of grown sons and daughters, Edwin, Katie, Bessie, and Nora, who were born to Cyrus and Susan; Emma, daughter of Cyrus; and Valentine, son of Susan. The will bestowed on these six persons a life estate in the rents and profits on the home place, if the testator should outlive Susan,

and it also devised to them a life estate in

all the other realty owned by Cyrus.

Where a life estate in real property is deThe remainder estate in all the lands of vised to six beneficiaries, with remainder to grandchildren of the testator and his consent- Cyrus, including the home place, was deing wife, and two of the beneficiaries attack the vised to the grandchildren, including the will for the purpose of judicially freeing the children of Emma Mason and the children realty from the life estate, and expanding their of Valentine O. Enders, per capita and not own interest and the interests of the other four per stirpes. Certain details in the will, beneficiaries therein into an allodial fee, and the specifying the executor's powers, placing refour other beneficiaries are made defendants strictions on the powers of life tenants to and make default, and the real and successful defense to the action is made by the grand- alienate, and as to the disposition of the inchildren whose interests were chiefly imperiled terest of any child or grandchild who might by the action, the costs of the litigation should die before the time of entry and enjoyment be borne proportionately by the six benefi- | of the remainder estate by the grandchildren, ciaries of the life estate, and may for con- may need little attention here. venience be paid by the executor and charged to their account.

Appeal from District Court, Rice County; D. A. Banta, Judge.

Action by Bessie E. Aten and Nora E. Jones against Edwin E. Tobias and others. Judgment for defendants, and plaintiffs separately appeal. Affirmed.

C. M. Williams and D. C. Martindell, both of Hutchinson, for appellants.

C. E. Branine and H. R. Branine, both of Hutchinson, for appellee Edwin E. Tobias. Ben S. Jones and Walter W. Stahl, both of Lyons, guardians ad litem for minor appellees.

DAWSON, J. These appeals pertain to an action to set aside a will and matters incidental thereto. The first was taken from a ruling on the pleadings; the second is from the judgment on the merits.

Most of the litigants are children or grandchildren of the late Cyrus Tobias of Rice county. Edwin E. Tobias, a son of the testator, is a defendant personally and also in his capacity as executor. Defendant Emma Mason was a daughter of Cyrus by a former wife. Defendant Valentine O. Enders was a son of Mrs. Tobias by a former husband. Cyrus Tobias and his wife in their lifetime had accumulated considerable real estate, some 1,440 acres of land or more, and had a rapidly growing personal estate. The title to 320 acres known as their home place was held by the wife. In 1913, Cyrus Tobias

The personal estate was bequeathed in equal shares to the daughter Katie and to son Edwin and to the stepson Valentine.

Susan gave her written consent to the will at the time it was executed. She died intestate in 1920, and Cyrus died in 1921. Meantime the personal property of Cyrus vastly increased between the making of his will in 1913 and the time of his death in 1921. To develop the questions raised between the litigants, the will must be largely

reproduced:

Susan E. Tobias, has expressed and does ex"It is my desire, and will in which my wife, press a cordial concurrence and approval, to reserve intact the bulk, body and substance of the real estate of which I may die seized or possessed for the grandchildren of either and both myself and my wife, now living or hereafter to be born and in the interpretation and execution of the terms of this will the foregoing condition of the minds of myself and wife shall be borne in mind. To this end and with this view and purpose, I give, devise and bequeath all property both real and personal which I may own at the time of my death as follows:

"First: I give, devise and bequeath unto my wife Susan E. Tobias should she survive me, for and during the term of her natural life, our home farm, described [description] together with all the rents, issues, profits and ther give, devise and bequeath unto my said proceeds of said half section of land. I furwife if she should survive me, all our household and kitchen furniture.

"Second: I give, devise and bequeath unto For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

my son Edwin E. Tobias, my stepson Valen- | tine O. Enders and my daughters Nora E. Jones, Kate V. Cherpital, Bessie E. Aten, and Emma S. Mason, share and share alike for and during term of their natural lives only as hereinafter, in this will, limited, defined and explained after the death of my wife Susan E. Tobias or after my death if I should survive my wife, the [home place]. Out of the rents and issues of said real estate there shall be first paid annually, by my executor, all taxes, charges, and assessments thereon, and the residue of all rents, issues, profits, and proceeds shall be divided equally share and share alike between and among the six legatees, above, in this paragraph named.

"Upon the death of any or either of such six legatees, if he or she shall leave surviving a child or children, such child or children shall take the place and be entitled to the share of its or their parent so long as any of the above named six legatees may live.

(220 P.)

er fully understanding my rights under the law, | home place was in the mother, that she died elect to take under the within and foregoing will intestate before Cyrus, and set up the conaccording to the terms and provisions thereof sent of Susan to the will of Cyrusand do freely consent to the same, and do now, at Lyons, Kansas, on this 8th day of December A. D. 1913, in the presence of as witnesses fully ratify, approve and confirm the said last will and testament of Cyrus Tobias. "Susan E. Tobias."

(Witnessed.)

"That by the express provisions of the confirmation and election of Susan E. Tobias attached to the will of Cyrus Tobias, deceased, the said Susan E. Tobias was estopped at all times during her lifetime to claim a larger estate in said half section of land than was given to her by the will of Cyrus Tobias, deceased, and that the said Susan E. Tobias died intestate; that the said plaintiffs in this action are heirs of Susan E. Tobias, deceased, and can take no larger estate in said half section of land than the said Susan E. Tobias could

have taken if she had outlived Cyrus Tobi

as. *

"On account of all the above facts set out the said Susan E. Tobias in her lifetime waived any and all right to claim a larger estate in said half section of land than was given to her by the will of Cyrus Tobias, deceased; that on account of the facts above set out and on account of the fact that after the death of the said Susan E. Tobias [plaintiffs] allowed Cyrus Tobias to at all times during his lifetime, and control and take all of the rents and profits and after the death of his wife, fully manage and to treat said half section of land as though he was the owner thereof, waived any and all rights to said half section of land, other than the interest given to them by the will of Cyrus Tobias."

The plaintiffs' petition set out four causes of action. In the first count, they alleged that Susan E. Tobias died seized of the half section to which she held the title and which is designated in the will of Cyrus as the "home farm" or "home place." Plaintiffs prayed for partition of this half section. The second count alleged that the provisions of the will devising the other lands of Cyrus were inconsistent, repugnant, ambiguous, and uncertain, and prayed for an adjudication that such provisions were null and void. The third count has been abandoned. The fourth count alleged that at the time of the making of the will, in 1913, Cyrus Tobias had a personal estate valued at $8,000; that at his death seven years later this personal estate had increased to $90,000; that the bequest of all the personal estate to Edwin, Valentine, and Katie was so made because in 1913 the personal estate was small and was contingently charged with a bequest of $10,000 to Susan; that the other daughter Emma had guardians ad litem prayed for a construcThe cross-petition of the executor and been given 80 acres of land; and that the tion of the will and the rights and duties of testator had partially disinherited the plain-the executor thereunder be defined, and that tiffs, Bessie and Nora, because he disapproved of their marriages and disliked their husbands, but that such grievance towards plaintiffs and prejudice against their husbands had altogether disappeared, and that

testator afterwards

"repeatedly expressed himself as being greatly pleased with the plaintiffs' husbands and with plaintiffs by reason of their said marriage, and repeatedly stated to friends and others that plaintiffs should share equally with his other children in said personal estate."

the will be sustained in all its parts. The
other defendants, being all the life tenants of
the real estate except the plaintiffs, filed no
default throughout the action.
answer or other pleadings and remained in

Plaintiffs filed a reply denying the free will consent and approval of the will by Susan E. Tobias, and alleged that during her lifetime she had been wholly submissive to and dominated by the will of her husband, and that she always meekly obeyed him without question and without any opinion of her own, and On this alleged reconciliation and because that it was her uniform custom to sign all of changed circumstances through the great papers, deeds, and documents submitted to increase in the personal estate of Cyrus, her by Cyrus without explanation or inquiry plaintiffs prayed an adjudication that the concerning their contents. It was also alprovisions of the will disposing of the per-leged that Susan did not understand the consonal property had been revoked. tents and effect of her written consent ap

To this petition the executor filed a gen-pended to the will of Cyrus. eral demurrer. Similar demurrers were filed On these issues the cause was tried. There by the guardians ad litem for the grand- was some evidence tending to prove plainchildren to whom the real estate in remain-tiffs' allegations in their first cause of action, der was devised. These demurrers were sus- but it was neither strong nor convincing, and tained as to the second, third, and fourth the trial court found against the plaintiffs. counts, and overruled as to the first. This Its finding and judgment on the first cause of ruling is the basis of plaintiffs' appeal in case No. 24707.

To the first count, the executor and the guardians ad litem for the grandchildren filed answers and cross-petitions, in which they admitted the relationship of the parties litigant, admitted that the legal title to the

action reads:

"The court finds that the property in question, to wit, the south half of section 17, townthe 6th P. M. [the home place] passed under ship 20, range 8, Rice county, Kansas, west of the will of Cyrus Tobias by reason of Susan E. Tobias having consented thereto; that plain

tiffs are not entitled to have said property partitioned among the heirs of Susan E. Tobias."

statute; it is governed by legislation, the statute of wills or the statute of descents and distributions. Moreover, in this case, al

though the title to the home place was in the wife, it was a perfectly natural thing for the husband and wife to agree that the home place, and all the other lands of Cyrus, in all of which Susan had a wife's inchoate interest, should be held intact for the benefit of the grandchildren, after sufficient provision was made for Susan if she should survive her husband, and since Susan consented to the testamentary disposition of all these lands-her own and her inchoate half interest in all the lands of Cyrus-it will have to

[1] This is the judgment appealed from in case No. 24841. Susan's prima facie valid consent to the will which made disposition of her property and her written acceptance of the portion of her husband's estate devised to her in lieu of the much larger estate which would have devolved on her under the statute of descents was not overthrown. Consequently the written consent of Susan stands for whatever legal import it carries, and on that question the law is reasonably clear and the decisions nearly uniform, as indeed counsel for appellants frankly concede. The rule is that if a testator devises property not owned by him, but owned by a devisee or legatee under the will of such testator, and such devisee or legatee accepts a devise [2] Turning now to the matters presented or legacy bestowed upon him by the will, he thereby in effect renounces his right of own-in case No. 24707, plaintiffs point out certain ership in the property which the testator has limitations placed by the will upon the life assumed to make of it, and confirms and rat-estate devised to plaintiffs and to their brothifies the testamentary disposition made of iter and sister and stepbrother and stepsister, by the testator. 40 Cyc. 1893.

In 40 Cyc. 1959, it is said:

"The doctrine, which is purely equitable, and was originally derived from the civil law, finds its most frequent illustration in the case of wills, the principle being that one shall not take any beneficial interest under a will, and at the same time set up any right or claim of his own even if legal and well founded, which would defeat or in any way prevent the full effect and operation of every part of the will."

See, also, Chilson v. Rogers, 91 Kan. 426, 137 Pac. 936; and excerpt from Morrison v. Bowman, 29 Cal. 337, quoted in Compton v. Akers, 96 Kan. 229, 150 Pac. 219, L. R. A. 1917D, 758, Ann. Cas. 1918B, 983; 2 Alexander on Wills, 1178 et seq.; 4 Schouler on Wills (6th Ed.) § 3189; 2 Woerner, Am. Law (2d Ed.) *1015 et seq.

Since the evidence was insufficient to overthrow Susan's written consent to the provisions of the will made in her behalf, that consent not only bound her but it bound all whose rights had to be claimed through her. The wife's written consent in conformity with the statute has the same effect as the widow's election after the testator's death. Gen. Stat. 1915, § 11790; Keeler v. Lauer, 73 Kan. 388, 395, 396, 85 Pac. 541; Chilson v. Rogers, 91 Kan. supra, 426, 430, 137 Pac. 936; Erickson v. Robertson, 116 Minn. 90, 133 N. W. 164, 37 L. R. A. (N. S.) 1133, and note, Ann. Cas. 1913A, 493. It has been held that where a husband makes a will disposing of all his property, without any provision therein for his wife, and the wife gives her consent thereto in writing, the will is valid, and cannot be overthrown by the wife's descendant beirs at law. Hanson v. Hanson, 81 Kan. 305, 105 Pac. 444. Nor is there any hardship in this doctrine. The devolution of a man's property at his death is wholly a matter of

stand.

In view of the foregoing, the trial court's conclusion and judgment on the first cause of action was correct.

arguing that these have the effect of nullifying it. It is argued that the will passed no title in the estate to the devisees, but only in the rents and profits, which would be mere personal property. Another limitation inconsistent with the creation of a life estate, urged by plaintiffs, is the power conferred on the executor to sell some of the realty and reinvest the proceeds in other property. Another restriction is that the six beneficiaries of the life estate shall not sell or incumber the real estate or their interests therein. From these limitations it is argued that the six beneficiaries acquired no estate in the realty, and consequently the remainder estate attempted to be devised to the grandchildren has no precedent particular estate to support it, and must therefore fail. In support of this, quite respectable authorities are quoted. Tiedeman on Real Property (3d Ed.) § 296; 21 C. J. 988; 23 R. C. L. 484, 485.

The cleverness of this reasoning cannot be denied, but in our opinion the testator did create a precedent particular estate, a trust estate for the benefit of the six sons and daughters, with power in the executor to sell part of the trust estate and reinvest the proceeds and hold the same as trustee. The trustee was authorized to sell and "make good title," and in the acquisition of substituted property it should be "taken in the name of my executor, as trustee." And while the grants to the six beneficiaries are characterized in the will as a life estate in the net rents of the home place, and as a life estate in the other lands, yet elsewhere in the will the beneficiaries are designated as legatees, which more nearly defines their status. They were in effect annuitants, for the will provides:

"Out of the rents and issues of said real estate, there shall be first paid annually, by my