Campbell v. Durant

Citations

• 110 Kan. 30
• 202 P. 841
• 1921 Kan. LEXIS 155

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Homestead — Occupied by Widow — Not Subject to Partition — Rents and Profits Belong to Widow. Devisees of a part of a testator’s homestead who are not members of the testator’s family cannot demand partition nor are they entitled to any share of the rents and profits of the homestead so long as the testator’s widow who claimed her rights under the law rather than under the will chooses to occupy the premises as a homestead and does nothing to terminate her right to such occupancy — following Breen v. Breen, 102 Kan. 766, 173 Pac. 2.</p> <p>2. Will — Devise Upon Conditions — Conditions Must Be Performed. A devise of land upon condition that the devisee shall erect a tombstone at the grave of the testator passes title to the devisee subject to defeasance for nonperformance of the condition subsequent; and such condition must be performed within a reasonable time.</p> <p>3. Pleadings — Petition by Devisees Claiming Share of Personalty Not Demurrable. A petition by plaintiff devisees claiming seven-sixteenths of a testator's personal estate against the testator’s widow who withheld it from them is not demurrable because another devisee to whom one-sixteenth of the personalty was devised was not made a party to the action.</p> <p>4. Wills — Personal Property. Not Needed to Pay Debts Subject to Division as Per Devises. Where undivided personal property is devised to plaintiffs and the same is withheld by the testator’s widow, together with her own share thereof, and the property is not required to satisfy charges upon the testator’s estate, the plaintiffs may maintain an action against the widow for their share of the property and for division or distribution thereof, and it is immaterial whether the administrator is made a party to such action or not.</p> <p>5. Pleading and Practice — Demurrers—-Misjoinder. Where certain causes of action are ruled out on demurrer thereto, and only one cause of action remains, the latter is not necessar