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It seems manifest that the first provision , crime, or her dying before her husband. It in the agreement would not be sufficient of is an interest which may be, in connection itself to exclude the wife as an heir. with the husband, the subject of contract similar provision in Kistler v. Ernst, 60 Kan. and bargain, and is by many of the authori243, 56 Pac. 18, was held not to exclude the ties denominated a contingent but valuable husband from his rights of inheritance. In interest. It has been decided by this court tuat case the language of the antenuptial that the wife has an interest in the homeagreement provided that the wife "shall have, stead occupied by herself and husband, alhold, keep and retain all of the property though the title to the same be in the huswhich she now has or may hereafter acquire, band, and that it is such a present and exwhether real, personal, or mixed, and where- isting estate that it will be protected by the soever situate, as her sole, exclusive and ab- courts. Helm v. Helm, 11 Kan. 19; Jenness solute property, for her separate use and v. Cutler, 12 Kan, 500.” benefit, free from all claims, rights and in- The main question, however, is if the subterest of her said intended husband, John sequent clause of the contract guarantying to Ernst, with the right on the part of the said the wife a sufficient support from the husllenrietta to, by gift, sale, devise, or will, band's property after his death, in the event dispose of the same to such persons as she she survived him, distinguishes this from may desire, the said John Ernst hereby con- Kistler F. Ernst, supra, and compels a dirsenting to such disposition of all such prop- ferent construction to be placed upon the erty in all respects as if the same should be agreement. Plaintiff in error contends that by will devised he said Henrietta after such this clause is simply a further provision for marriage and the consent of said John Ernst the benefit of Mrs. Rouse, by which the husindorsed in writing thereon." In the present | band agrees that, although he has the right (ase the agreement, looking alone at the first without her consent to dispose by deed or provision, is that the property of each shall, will of all his property during her lifetime, after the marriage, be and remain the sepa- he will not so far dispose of it as to prejurate and distinct property of such owner, dice her rights to have out of his estate a who is to have the right, at his or her option, sufficient support for the remainder of her to dispose of the same by will or otherwise; \ life in case she survives him. It is argued and neither shall have nor exercise any that without this provision he might have right, title, or interest in the property of the conveyed by deed or devise every dollar be other. So far, the agreements are substan- possessed, and, dying before her, leave her tially alike. It is contended, however, that without any means of support, and the cona construction must be given which would tention is that this safeguard of the wife's in some way alter the rights of the parties right in any event to sufficient support has as they existed; that otherwise the agree- been employed by the trial court as a means ment is rendered inoperative. The same con- to destroy her inheritance; that by a fair tention was urged in Kistler v. Ernst, supra, construction of both provisions there is no imwhere it was said in the opinion: “The con- plication even that she is to be deprived of . tract seems to have followed the law and her right to inherit from the husband. Maniconferred no greater rights on either party festly, the court construed this clause, taken than were vouchsafed by the statute, with with the first, to constitute a substantive prothese limitations : Any conveyance, gift, or vision for the wife which excluded her from sale of the property of one during coverture any other interest in his property after his could not be challenged as being in fraud of death. the rights of the other. The. antenuptial In Hart, etc., v. Soward, 14 B. Mon. (Ky.) agreement worked an estoppel on both par- 301, the contract provided that the wife ties and silenced all complaint of one against "shall hold and possess, for her own separate alienation by the other, fraudulent or other- and exclusive use and benefit, all the estate, wise. It also gave to each the right to con- real, personal, and mixed now owned and vey his or her real estate by separate deed possessed by her, and the future rents, issues, and pass a merchantable title. It gave the and profits thereof, free from the control or power to bequeath and devise all the property disposition of the said Alfred Soward; it of each by separate will. Thus the contract being intended that the said Margaretta Gorperformed some service in respect to the such shall hold the said property as her sepproperty of both parties during coverture, arate estate, and in the same manner as if and its terms, to the extent stated, modified she were sole and unmarried, she hereby reand changed rights secured by the statute." taining authority and power to dispose of

In Busenbark v. Busenbark, 33 Kan. 572, the same, in such manner as she may choose 576, 7 Pac. 245, 248, speaking of the interest in her lifetime, by sale and conveyance, or by wuch the wife has in the husband's real last will and testament." She died intestate, estate, it was said: “It is true that this in- and the husband was given a husband's interest in the real estate of the husband is terest in all her property notwithstanding inchoate and uncertain, yet, according to the agreement. It was said: “If this agreethe authorities, it possesses the element of ment contained any provisions on the subject property. It is an interest and right of which of the right of succession to the property, sue can be divested only by her consent, or after the death of the wife, this question

could not arise; but as it only secured to the We have frequently held that agreements wife the right to control and dispose of the of this character should be liberally conproperty during the coverture as if she were strued to carry into effect the intention and unmarried, and as she made no disposition purpose of the parties; nevertheless, their of it to take effect after her death, the agree- terms are not to be extended by mere impliment, having accomplished the object of its cation to exclude the right of the survivor to existence, and the purpose contemplated by take by inheritance. The reasons are manithe parties in its execution, became, by her fest. If such be the intent of the parties, it death, inoperative, according to its own na- can be readily expressed in appropriate lanture, and left her estate to the disposition of guage or in words from which the intention the law." It will be noticed that by the is necessarily implied. Vor are we impressagreement in that case, the wife retained the ed with the claim that the circumstances surpower to dispose of her property "as she rounding the parties to this agreement, at may choose in her lifetime." The words "in the time it was entered into, and the rela. her lifetime" are not used in the agreement tions which existed between them, are of we are considering. nor was the same or a nature from which a different purpose similar language used in the agreement in may be implied, or are such as to invoke a Kistler v. Ernst, supra. Their absence is not strained construction in favor of the heirs. important, for if either husband or wife de- It is true that at the time the agreement sired to dispose of property by deed, gift, was made the husband possessed most of the or devise it would necessarily be done during land, and the wife brought but little in the the lifetime of the grantor, though effect way of property or means to the marriage, might not be given until after death.

and was at the time past middle life. HowAs said by Justice Smith in Kistler v. ever, they lived together for more than 30 Ernst: "There is no express agreement in years, during which she doubtless contributthe contract which excludes the husband ed her share to his further accumulation of from a right of inheritance on the death of property. Moreover, he had three minor the wife. She had the right to devise her children at the time of this marriage, anci property to whom she pleased, and the con- the evidence warrants the inference that sent of her husband was given in advance. Jane Rouse became a mother to them. The Under the position taken by plaintiff in er- circumstances, it will be observed, are not ror, a devise by will to the husband was nec- similar to a case where an old man, in his essary on the part of the wife should she declining years, having property of his own, have desired that he take her property at enters the marriage relation with a woman her death. The law obviated all necessity younger than himself, neither expecting that for a will in such a case, as we construe the the relation will extend beyond a few years contract. There is nothing in the con'raet at most, and a contract is made which the that convinces us that Ernst, by tlie asree- circumstances assist in construing as intendment, surrendered or released his right of in- ed to provide that the wife at his death shall lieritance is the survivor of his wife.


take a certain compensation in lieu of any The counsel for plaintiff in error, by it re- interest the law might give her in his estate. finement of reasoning, seeks to read into the The agreement might have provided that greement provisions founded on implications in case the wife survived the husband she and probabilities as to the intention of the should take no share in his estate by inheritparties which cannot be justified under the ance, but the provision that the husband language of the instrument. The wife had should have the option to dispose of his the right of disposition, which she did not property hy will or otherwise cannot by imsee fit to xercise. This failure to make dis- plication be said to mean that, in the event position might have been induced by the af- he failed to exercise such option, the laws of fection she bore for her husband, knowing inheritance should be set aside and the wife that upon her death the law would place her be left in the same situation as though he property in his hands as effectually as if a had exercised the option. Notwithstanding

. formal will had been made."

the contract, he could have devised all of his This contract is not free from doubt, but property to his wife. There was no will, no it is open to the construction contended for disposition by him in his lifetime, although by plaintiff in error, and could well mean she had agreed that he might make a will or that by this subsequent provision nothing other disposition. This is a contest between more was contemplated than to guaranty to his heirs and the wife. The heirs are not the wife that, in case the husband saw fit mentioned in the agreement, and must take to exercise the right to dispose of his en- under the laws of descent, the same laws tire estat., he would not do so without mak- which gave her one-half of the husband's ing ample provision for her support during property where he dies intestate. The limitathe time she should survive him and remain tion of the husband's power of disposition in his widow. It is by no means clear to us the subsequent clause cannot be extended by that the intention was that she should not in- implication beyond the plain import of its herit a wife's interest in all property of his terms. which he did not see fit to dispose of sepa- While we are not prepared to say that an rately by deed or will during his life.

express provision must always appear in order to deprive the survivor of the rights of the city of Le Roy. She settled with the cominheritance, there are authorities which go pany and released it from further liability, to that extent. See Stewart v. Stewart, 7 but afterwards commenced this suit in the Johns. Ch. (N. Y.) 229, cited and relied up- district court of Miami county, where she reon in Kistler v. Ernst, supra. In that case covered a judgment for $1,937.27. The comChancellor Kent said: "The court cannot pany has brought the case here and asks that take away the right of the husband to the the judgment be reversed on account of the personal estate of his wife, when it is not contributory negligence of the plaintiff, as taken away by the settlement or by the exer- shown by the special findings of fact found cise of the power of appointment under it. by the jury, and that a judgment be directed When the settlement makes no disposition of in its favor for costs. the property in the event of the wife's death, The special findings, so far as they relate and provides only for her dominion over it to the question of contributory negligence, during coverture, the right of the husband, read: as survivor, is a fixed and stable right, over "Q. 41. What time of day was it when which the court has no control, and of which plaintiff was injured?

plaintiff was injured ? A. About 4 o'clock, he cannot be devested. The settlement can- p. m. not be extended by construction beyond the "Q. 42. Was it daylight when said accident just and fair import of its provisions; and, occurred? A. Yes, clearly, the court cannot create a settlement, "Q. 43. From which direction did plaintiff or a disposition of property, in violation of approach defendant's track? A. From the the jus mariti, when none has been made by west, and a little north. the party.” See, also, Jones & White v. "Q. 44. From the point where plaintiff was Brown, 1 Md. Ch. 191; Talbot v. Calvert, 24 injured for what distance north was defendPa. 327; Brown's Adm'r v. Brown, 25 Tenn. ant's track straight? A. About 3,000 feet.” 127; Sutherland et al. v. Sutherland et al., "Q. 46. From which direction was defend69 Ill. 431; Christy v. Marmon, 163 Ill. 223, ant's train approaching? A. From north. 45 N. E. 150. In commenting upon an ante- "Q. 47. How far south of Fourth street nuptial agreement the Supreme Court of crossing did the accident occur? A. About Iowa in Re Estate of Peet, 79 Iowa, 185, 188, 60 feet. 44 N. W. 354, 355, said: "It must be under- "Q. 48. Just before attempting to cross said stood that contracts designed to divest the track, and when plaintiff was in a position wife of the benefits of the statutes in her of safety, did she look along said track, and favor after the death of her husband * * * in the direction from which said train was must not be of doubtful interpretation, but coming? A. Yes. specific and certain as to such intent."

"Q. 49. Did she then discover said apIt follows from what has been said that proaching train? A. Yes." the judgment must be reversed, and remand- "Q. 52. At a distance of from 5 to 10 feet ed for further proceedings in accordance with west of said railroad track, how far north these views. All the Justices concurring. along said track could plaintiff see, if she

had looked? A. About 3,000 feet.

"Q. 53. When did plaintiff first discover (77 Kan. 803)

the approach of said train? A. When she MISSOURI PAC. RY. CO. v. TRAHERN. came out on walk. (Supreme Court of Kansas. July 5, 1907.)

"Q. 51. When plaintiff first discovered the


approach of said train what did she do? TRIBUTORY NEGLIGENCE.

Looked at the approaching train, and, thinkPlaintiff, struck and injured at railroad ing that she had ample time to cross the crossing, held guilty of contributory negligence, track without danger, started to cross." barring recovery, though no signal was given.

"Q. 60. Just before plaintiff started over [Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Railroads, 88 1080-1083.]

said track, did she know that said train was

approaching from the north? A. Yes. Error from District Court, Miami County;

"Q. 61. For what length of time next preW. H. Sheldon, Judge.

ceding the date of the injury to the plaintiff Action by Matilda Trahern against the

had she resided near to said railroad track? Missouri Pacific Railway Company for per

A. About two or three years." sonal injuries. From a judgment for plain

"Q. 61. Do you find from the evidence that tiff, defendant brings error. Reversed, with

previous to the date of said accident plaintiff directions to enter judgment for defendant.

had knowledge that freight and passenger Waggener, Orr & Challis and A. Lane, for trains passed to and fro over said track daily, plaintiff in error. Frank M. Sheridan, for and many times each day? A. Yes." defendant in error.

"Q. 66. Do you find from the evidence that

plaintiff, at the time of said accident and just PER CURIAM. Matilda Trabern was in- before she attempted to cross said track, was jured while attempting to cross the track of in possession of all her faculties of sight and the plaintiff in error in front of a passenger hearing, and that they were in their normal train while it was running on a street through condition? A. Yes.

"Q. 67. What was the distance between the

(76 Kan. 198) west rail of said track and the west line of BOMAN V. BANKERS' UNION OF THE said street in front of plaintiff's house? A.

WORLD. About 28 feet."

(Supreme Court of Kansas. July 5, 1907.) "Q. 69. At any point between the west INSURANCE – MUTUAL LIFE INSURANCE line of said street and the west rail of said CHANGE OF BY-LAWS--EFFECT ON BENEFItrack, if the plaintiff had looked, could she


The defendant in error was incorporated have seen said approaching train from the

as a mutual life insurance association and isnorth? A. Yes."

sued a joint certificate to Boman and wife, by "Q. 72. Just before plaintiff reached the

the terms of which, and the by-laws which were

made a part of the contract, the association west rail of said track, if she had listened,

agreed to pay the survivor, upon proof of the could she have heard said approaching train? death of the other, an indemnity of $1,000, subA. Yes."

ject to certain deductions provided for by a by

law then in force. Subsequently, the associa"Q. 71. How many feet did plaintiff walk

tion passed a new by-law, which, if applicable on said street after she left her own premises to said certificate, would greatly reduce the until she reached the west rail of said track? indemnity. Neither Boman nor his wife had A. About 30 or 40 feet."

any notice or knowledge of the new by-law dur

ing her life, but they continued for many "Q. 76. Do you find from the evidence

months after the new by-law was passed to that plaintiff saw said approaching train, and, pay the monthly assessments at the rate rethinking that she had ample time to cross

quired at the time their certificate was issued, over the track before it reached her, made an

and the association received such payments

without objection to their sufficiency. The wife effort to do so? A. Yes.

died, and Boman made proof of the death and "Q. 77. Just before plaintiff reached the demanded the indemnity, and the association west rail of said track, and when in a place

offered him the amount he would be entitled to

under the new by-law, but less than one-third of safety, how far was said approaching train

the amount to which he would be entitled under from the point where she crossed the track? the former by-law. A. At or north of Fourth street."

Held, although Boman and wife may have

agreed in the acceptance of the certificate to be "Q. 86. Do you find from the evidence that

bound by subsequently enacted by-laws, the asjust before plaintiff was struck by the engine sociation waived the enforcement of the new she turned her back to said approaching by-law, and is estopped from asserting it against

Boman, train? A. Partly. Evidence shows she was

[Ed. Note.-.For cases in point, see Cent, Dig. going in a southeasterly direction."

vol. 28, Insurance, & 1835.] "Q. 90. How far would plaintiff have been

(Syllabus by the Court.) required to step to have been out of danger? A. Two or three feet."

Error from District Court, Allen County ; "Q. 91. When plaintiff stepped from a place

Oscar Foust, Judge. of safety, and onto said track, how far was

Action by Alvin Boman against the Banksaid engine from her? A. About 60 feet." ers' Union of the World. Judgment for deThese findings are made almost wholly

fendant. Plaintiff brings error. Remanded, from the testimony of the plaintiff. They

with instructions to modify judgment. show that she was grossly negligent. She Ewing, Gard & Gard, for plaintiff in error. was familiar with the operation of trains at Austin & Hungate, for defendant in error. that place, knew that their speed was not uniform, she saw the train coming, realized SMITH, J. This action was commenced in that is was dangerously near, and hurried the district court of Allen county by Boman to get across safely. She knowingly and un- to recover, as the surviving beneficiary. his necessarily took the chance and lost. The wife having died, the indemnity on a joint negligence on the part of the company was policy of life insurance issued to them durnot the cause of her injury. The failure to ing her lifetime. The policy on its face pursound bell or whistle did not deceive or mis- | ported to afford indemnity to the survivor lead her. The object of these alarms is to in the sum of $1.000, payable 90 days after notify people of an approaching train. She the receipt of proof of the death of the other already possessed all the information which spouse. It is specified in the policy that paythey could have given. It is claimed that ment of all benefits under the policy should the train moved at a speed greater than al- be governed by the provisions of the by-laws, lowed by the city ordinance, but it does not but there is no agreement authorizing any appear that the plaintiff knew of such regula- change in the by-laws or any agreement to tion or that she relied upon the prescribed abide by any

abide by any subsequent change therein speed. On the contrary, it appears that she which would affect the amount of the inknew the speed of trains was not uniform. demnity. They sometimes mored slowly, and at times The policy reads: “This certifies that Alrapidly. She acted with a full understanding vin Boman and IIelena Boman having each of the situation. People who thus defy dan- complied with all of the requirements of the ger must accept the consequences.

order, and in consideration of the payments The judgment is reversed, with direction of premiums and fees necessary to be paid in that judgment be entered for the plaintiff in advance herein, are members of Jeudo Lodge error for costs,

No. 1073 of the Bankers' Union of the World 91 P.-4

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located at Humboldt in the state of Kansas member whose death shall first occur, from and they are each entitled to all the rights, which the joint rate was fixed. privileges and benefits of membership there- It is contended that the following stipulain. That upon receipt by the supreme lodge | tion in the application for membership binds at its office in the city of Omaha, Nebraska, the members not only to comply with any of satisfactory proofs of the death of either by-laws which may be enacted, but also auof said members while in good standing in thorizes the corporation to change or reduce this order, and within ninety days after the the benefit: “I agree that the maintenance receipt of such proofs, there will be paid to of my membership in the Lodge of the Bankthe surviving member, upon surrender and ers' Union of the World and the compliance cancellation of this policy, the sum of one on my part with the constitution, by-laws, thousand dollars. The payment of all bene- regulations and requirements which are now fits under this policy shall be governed by in force or may hereafter be enacted by the the provisions of the laws pertaining to this said Bankers' Union of the World, is the exclass of policies, which provisions, together ! press condition upon which I am entitled with the statements made by the insured in to enjoy the rights, benefits and privileges their application for membership and the of membership in the beneficiary department statements certified by the insured to the of this order." Certain it is that the by-laws medical examiner, are hereby made a part were explicit on this subject. Division 9, of this contract. This policy is issued to section F, thereof reads: "Every certificate and accepted by both of said members upon of insurance heretofore issued, or that may the terms and subject to the conditions set be hereafter issued shall be subject to, govforth in the constitution and by-laws of this erned by and construed in accordance with union, and subject to the conditions and stip- the constitution and by-laws of this order or ulations on the reverse side hereof, all of any amendments thereto that may be herewhich are hereby made a part of this con- after adopted, and all claims shall be settled tract as fully as if they were recited at in accordance with the various provisions length over the signatures hereto affixed.” thereof as the same may be in force at the

The only conditions or stipulations on the time such claim arose." Also division 12, reverse side of the policy which can affect section B: “The Constitution may be alterel the questions here involved are: "Death or amended by the Supreme Lodge at any Benefit. Within ninety days after receipt | regular or special meeting.” The case was and approval of satisfactory proofs of the tried to the court upon an agreed statement death of either of the said members, there of facts. The policy and all the pertinent shall be paid to the surviving member, if portions of the by-laws necessary to an unliving, otherwise to the legal heirs of such derstanding of such agreed statement are surviving member, upon the surrender and above set forth. cancellation of this policy, such balance, if The agreed statement of facts is as folany, of the amount payable under this policy, lows: "Agreed Statement of Facts. In adlif such remains unpaid to the said member; dition to the facts admitted in the pleadings, payable at the supreme office at Omaha, Ne- and without waiving any such admissions, braski, upon the surrender and cancellation now, to wit: It is hereby stipulated and of this policy. Should either of said members agreed that the following facts be and hereby clie before having liverl out their expectancy are admitted herein: (1) That the defendant of life, based upon age at time of entry, ac- is now, and was at all times mentioned in cording to the American Experience Tables plaintiff's petition, a fraternal beneficiary asof Mortality, there shall be deducted from sociation organized and incorporated under the death benefit payable hereunder a sum the laws of the state of Nebraska, and author equal to the amount of one payment (at the ized to, and doing business as such fraternal rate of the member whose death shall first

beneficiary association in the state of KanO('('ur, from which the joint rate was fixell)

Sils. (2) That on or about the 31st day of for each month of the unexpired period of December, 1901, said defendant duly executsuch life expectancy with 4 per cent. on the ed and delivered to said plaintiff and one unpaid balance of such sum. Accident and


IIelena Boman, now deceased, who was at disability payments hereunder shall be sub- said time and thereafter the wife of plaintiff, ject to proportionate deductions. All deluc- a certain joint policy of insurance, as protion, as provided above, shall remain in the

vided by the constitution and by-laws of the benefit fund until transferred to the reserve defendant in force at that time, granting fund, in accordance with the constitution and therein benefits or indemnity in case of by-laws of the order."

death of one of said parties to the surviving From which it will be seen that there is one the sum of $1.000.00; a copy of which here no provision for a subsequent fixing of policy is attached to plaintiff's petition, markthe amount of the cleduction in case of the ed 'Exhibit A' and which is referred to audi death of either of the assured before the made a part of this agreed statement of facts. expiration of his or her life expectancy; but (3) That prior to the execution and delivery the reduction is to be determined from the of said policy, said plaintiff and said lfelena amount of one payment at the rate of the Boman each separately made application for

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