Wisecarver v. Wells

Citations

• 108 Kan. 842
• 197 P. 219
• 1921 Kan. LEXIS 282

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Will — Devise to Minor Children — Title to Pass When Youngest Child Should Attain Age of Eighteen Years — Action for Unlawful Detention Maintainable by Devisees'. A will gave to the husband of the testator’s daughter the use and control of land until their youngest child (a girl) should attain the age of eighteen years, when full title was to pass to the children. After its probate the district court in granting a divorce awarded to the wife the land referred to until the estate devised •to the husband should be terminated. In another part of the decree it was recited that by the will the land had been devised to the husband for a period to be terminated upon the youngest child “becoming of age.” At the time the divorce decree was rendered a girl became of age at eighteen, but this was changed to twenty-one by a later statute. Upon the youngest child attaining the age of eighteen the children sought possession of the land by a proceeding in unlawful detainer against their mother. It is held that the proceeding was maintainable and that in order for the plaintiffs to recover it was not necessary for the decree in the divorce case to he vacated or modified.</p> <p>2. Unlawful Detention — Trial—Form of Oath to Jxvry. The act relating to civil procedure before justices of the peace provides that in a forcible entry and detainer case the jury shall be sworn to well and truly try 'and determine whether the complaint is true according to the evidence. The general provision of the civil code is that the jury shall be sworn to well and truly try the matters submitted to them in the case in hearing, and a true verdict give according to the law and evidence. It is held that, assuming that where a forcible entry and detainer ease is tried in the district court on appeal the jury should he sworn in accordance with the first formula, the second includes its substance and its use is not a ground of reversal.</p> <p>3. Same — Rulings on Evidence