Mallows v. Mallows

Citations

• 93 Kan. 551
• 144 P. 829
• 1914 Kan. LEXIS 469

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Will — Interpretation—Interest of Surviving Wife of Legatee Determined. In a will the testatrix provided that one of two sons should have a life estate in a certain tract of land, .and that if he “should marry again, it being his third marriage, then his third wife, and children by his third wife, shall have said fifty acres of land described in this will, but if said French J. Mallows should die leaving no wife and children by a third wife, then I devise and will that said land described above shall go to my son Ira Amos Mallows.” The son married not only a third but also a fourth and a fifth wife. The third wife died leaving no children, but the son died and left surviving him the fifth wife. The trial court decided that as the son of the testatrix left a wife surviving him, the third wife having died without children, the other son of the testatrix did not take the remainder, and that as there was no one to take it under the will so much of the property passed to the heirs of the testatrix under the law of descents and distributions. Held, that the surviving wife of the son has no reason to complain of the ruling, and that under the circumstances of the case the interpretation and decision of the trial court will not be disturbed.</p> <p>2. New Trial — Motion Filed Out of Time — Denial No Error. Neither will a ruling denying a motion for a new trial be disturbed which was filed out of time and in which the applicant relied on certain misapprehensions and mistakes alleged to have been made by herself and her attorney.</p> <p>3. Same — Practice—Shifting Ground of Defense — Not Permissible. Ordinarily a court will not grant a new trial merely to give a party an opportunity to shift his ground of action or defense, ii the case has been tried upon one theory it is too late to mend his hold and advance another theory which might have been but was not presented at the trial.</p>