Volume 176 — Kansas Reports

SYLLABUS BY THE COURT WILLS — <italic>No Consent to Will — Death of Beneficiary Prior to</italic> <italic>Election — Election By Court After Death.</italic> A wife made a will which disposed of all of her property to persons other than her husband, who, at the time, was seriously ill and confined in a hospital. The will made no mention of the husband, and he did not consent thereto. Shortly thereafter the wife died, and on the date her will was admitted to probate, and at all times thereafter until his death, the mental and physical condition of the husband was such that he was wholly unable to transact any business. <block_quote> Shortly after the will was admitted to probate the guardian of the person and estate of the incompetent surviving husband petitioned the probate court for an order setting aside homestead rights and statutory family allowances to such incompetent surviving spouse, and for a further order appointing a commissioner, under the provisions of G.S. 1949, <cross_reference>59-2234</cross_reference>, to ascertain the value of the provision made by the will for the husband in lieu of his rights in her estate secured by statute, and the value of his rights secured by statute. The guardian's petition was sustained and both orders were made by the probate court.</block_quote> <block_quote> Nine days later, and before the commissioner's report was filed, the incompetent surviving husband died intestate, and his former guardian was appointed administrator of his estate. The executor of the wife's estate then petitioned the probate court for an order setting aside the orders previously made with reference to homestead rights and the delivery and payment of statutory family allowances to the husband for the reason that no delivery or payment of the same had been made to the guardian or to the husband during his lifetime, and for a further order that no election be made in behalf of the deceased husband or his estate, and that the wife's will stand as written, and that the husband's estate should take nothing from her estate.</block_quote> <block_quote> The executor's petition was denied, and he was ordered to deliver over and pay to the administrator of the husband's estate the statutory family allowances. The court further ordered that the report of the commissioner, which in the meantime had been filed, should be accepted as though the husband were still living, and the court thereupon made an election in behalf of the husband to the effect that, whereas, by the terms of the wife's will he would take nothing, but would, by statute, inherit one-half of her estate, his estate was entitled to distribution of one-half of her estate, and her<page_number>Page 169</page_number> executor was ordered to make such distribution upon the final settlement of her estate.</block_quote> <block_quote> Upon appeal to the district court these orders were affirmed.</block_quote> <italic>Held</italic>, no error.