Woolverton v. Johnson

Citations

• 69 Kan. 708
• 77 P. 559
• 1904 Kan. LEXIS 323

Syllabus

<p>SYLLABUS BY THE COURT,</p> <p>1. Practice, Supreme Court—Agreed Statement of Facts Not in the Record. An agreed statement of facts upon which a trial is had cannot be made a part of the record by inserting it in the journal entry of judgment preceded by the recital that the court made such agreed statement its findings of fact.</p> <p>2. --Extent of Review in the Absence of Agreed Facts. Where a case is tried upon an agreed statement of facts, and is ' brought to this court for review upon a record which does not include it, notwithstanding such omission an inquiry may be had into the question whether the judgment was warranted under the pleadings.</p> <p>3. Descents and Distributions-—-Constructionof Will—Disposition of Trust Fund. A will directed that the property of the testator be sold and the proceeds placed .with trustees, to be expended by them for the support and education of her two minor ohildren. It was fairly inferable that the trust was to end when the children became of age, but no provision was made for the payment to them of any surplus that might then remain. From the apparent value of the estate it was reasonable to believe that the testator assumed that if the children, or either of them lived to the age of twenty-one, its proceeds would be exhausted before that time. The will concluded with the words “and in the event of the death of each of said children, Donald Johnson and Kenneth Johnson, that in such an event the residue of my estate, whatever it may be, I give and bequeath to my brother, John Olson.” Kenneth Johnson died before his mother’s death, Donald shortly after. Held, that the unexpended portion of the estate goes to the testator’s brother, and not to the heirs of Donald Johnson.</p>