Bullock v. Wiltberger

Citations

• 92 Kan. 900
• 142 P. 950
• 1914 Kan. LEXIS 340

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Wills — Construction—Testator’s Intention Must Control. It is the testator’s intention which must always control in the construction of a will, and this must be gathered from the language of the entire will interpreted by the application of legal principles.</p> <p>2.. Same — Sometimes technical rules must be applied because the intention is obscured by vague or doubtful expressions, but such rules of construction ought never to be resorted to where their application defeats the manifest intention of the testator.</p> <p>8. Same — Merger—Doctrine Not Employed to Defeat Intent of Testator. The doctrine of merger, which is largely a matter of theory, ought not to be employed to defeat the intent of the testator and to extinguish the rights of persons who are strangers and not parties to the transaction.</p> <p>4. Same — The Two Following Paragraphs of Will Construed. Two paragraphs of a will read in substance as follows:</p> <p>“Third: After the death of my said wife it is my will that all of my property both personal and real . . . shall be divided equally among my four children [naming them].</p> <p>“Fourth: If any of my said children shall die before my wife . . . then it is my will, that the share which would go to my deceased child or children if living, shall be divided among his or her children in equal parts; and if any of said children shall die without issue, prior to the death of my said wife, then it is my will that his or her share, shall be divided equally among my children then living, or if any of them be dead, then, his or her share, equally among their children.”</p> <p>After the testator’s death and the probate of the will the widow and the four children named in paragraph three joined in a conveyance to the grantor of the plaintiff. The widow is still living, but one of the four children of the testator has since died leaving minor children who are defendants in this action to quiet title. Held:</p> <p>(а) That t