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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 itself to exclude the wife as an heir. A similar provision in Kistler v. Ernst, 60 Kan. 243, 56 Pac. 18, was held not to exclude the husband from his rights of inheritance. tuat case the language of the antenuptial agreement provided that the wife "shall have, hold, keep and retain all of the property which she now has or may hereafter acquire, whether real, personal, or mixed, and wheresoever situate, as her sole, exclusive and absolute property, for her separate use and benefit, free from all claims, rights and interest of her said intended husband, John Ernst, with the right on the part of the said Henrietta to, by gift, sale, devise, or will, dispose of the same to such persons as she may desire, the said John Ernst hereby consenting to such disposition of all such property in all respects as if the same should be by will devised by said Henrietta after such marriage and the consent of said John Ernst indorsed in writing thereon." In the present case the agreement, looking alone at the first provision, is that the property of each shall, after the marriage, be and remain the separate and distinct property of such owner, who is to have the right, at his or her option, to dispose of the same by will or otherwise; and neither shall have nor exercise any right, title, or interest in the property of the other. So far, the agreements are substantially alike. It is contended, however, that a construction must be given which would in some way alter the rights of the parties as they existed; that otherwise the agreement is rendered inoperative. The same contention was urged in Kistler v. Ernst, supra, where it was said in the opinion: "The contract seems to have followed the law and conferred no greater rights on either party than were vouchsafed by the statute, with these limitations: Any conveyance, gift, or sale of the property of one during coverture could not be challenged as being in fraud of the rights of the other. The antenuptial agreement worked an estoppel on both parties and silenced all complaint of one against alienation by the other, fraudulent or otherwise. It also gave to each the right to convey his or her real estate by separate deed and pass a merchantable title. It gave the power to bequeath and devise all the property of each by separate will. Thus the contract performed some service in respect to the property of both parties during coverture, and its terms, to the extent stated, modified and changed rights secured by the statute."

is an interest which may be, in connection with the husband, the subject of contract and bargain, and is by many of the authorities denominated a contingent but valuable interest. It has been decided by this court that the wife has an interest in the homestead occupied by herself and husband, although the title to the same be in the husband, and that it is such a present and existing estate that it will be protected by the courts. Helm v. Helm, 11 Kan. 19; Jenness v. Cutler, 12 Kan. 500."

The main question, however, is if the subsequent clause of the contract guarantying to the wife a sufficient support from the husband's property after his death, in the event she survived him, distinguishes this from Kistler v. Ernst, supra, and compels a different construction to be placed upon the agreement. Plaintiff in error contends that this clause is simply a further provision for the benefit of Mrs. Rouse, by which the husband agrees that, although he has the right without her consent to dispose by deed or will of all his property during her lifetime, he will not so far dispose of it as to prejudice her rights to have out of his estate a sufficient support for the remainder of her life in case she survives him. It is argued that without this provision he might have conveyed by deed or devise every dollar he possessed, and, dying before her, leave her without any means of support, and the contention is that this safeguard of the wife's right in any event to sufficient support has been employed by the trial court as a means to destroy her inheritance; that by a fair construction of both provisions there is no implication even that she is to be deprived of. her right to inherit from the husband. Manifestly, the court construed this clause, taken with the first, to constitute a substantive provision for the wife which excluded her from any other interest in his property after his death.

In Busenbark v. Busenbark, 33 Kan. 572, 576, 7 Pac. 245, 248, speaking of the interest which the wife has in the husband's real estate, it was said: "It is true that this interest in the real estate of the husband is inchoate and uncertain, yet, according to the authorities, it possesses the element of property. It is an interest and right of which sue can be divested only by her consent, or

In Hart, etc., v. Soward, 14 B. Mon. (Ky.) 301, the contract provided that the wife "shall hold and possess, for her own separate and exclusive use and benefit, all the estate, real, personal, and mixed now owned and possessed by her, and the future rents, issues, and profits thereof, free from the control or disposition of the said Alfred Soward; it being intended that the said Margaretta Gorsuch shall hold the said property as her separate estate, and in the same manner as if she were sole and unmarried, she hereby retaining authority and power to dispose of the same, in such manner as she may choose in her lifetime, by sale and conveyance, or by last will and testament." She died intestate, and the husband was given a husband's interest in all her property notwithstanding the agreement. It was said: "If this agreement contained any provisions on the subject of the right of succession to the property, after the death of the wife, this question

could not arise; but as it only secured to the wife the right to control and dispose of the property during the coverture as if she were unmarried, and as she made no disposition of it to take effect after her death, the agreement, having accomplished the object of its existence, and the purpose contemplated by the parties in its execution, became, by her death, inoperative, according to its own nature, and left her estate to the disposition of the law." It will be noticed that by the agreement in that case, the wife retained the power to dispose of her property "as she may choose in her lifetime." The words "in her lifetime" are not used in the agreement we are considering. nor was the same or similar language used in the agreement in Kistler v. Ernst, supra. Their absence is not important, for if either husband or wife desired to dispose of property by deed, gift, or devise it would necessarily be done during the lifetime of the grantor, though effect might not be given until after death.

As said by Justice Smith in Kistler v. Ernst: "There is no express agreement in the contract which excludes the husband from a right of inheritance on the death of the wife. She had the right to devise her property to whom she pleased, and the consent of her husband was given in advance. Under the position taken by plaintiff in error, a devise by will to the husband was necessary on the part of the wife should she have desired that he take her property at her death. The law obviated all necessity for a will in such a case, as we construe the contract. There is nothing in the con'ract that convinces us that Ernst, by the agree ment, surrendered or released his right of inheritance as the survivor of his wife. * The counsel for plaintiff in error. by a refinement of reasoning, seeks to read into the agreement provisions founded on implications and probabilities as to the intention of the parties which cannot be justified under the language of the instrument. The wife had the right of disposition, which she did not see fit to exercise. This failure to make disposition right have been induced by the affection she bore for her husband, knowing that upon her death the law would place her property in his hands as effectually as if a formal will had been made."

*

This contract is not free from doubt, but it is open to the construction contended for by plaintiff in error, and could well mean that by this subsequent provision nothing more was contemplated than to guaranty to the wife that, in case the husband saw fit to exercise the right to dispose of his entire estate, he would not do so without making ample provision for her support during the time she should survive him and remain his widow. It is by no means clear to us that the intention was that she should not inherit a wife's interest in all property of his which he did not see fit to dispose of separately by deed or will during his life.

We have frequently held that agreements of this character should be liberally construed to carry into effect the intention and purpose of the parties; nevertheless, their terms are not to be extended by mere implication to exclude the right of the survivor to take by inheritance. The reasons are manifest. If such be the intent of the parties, it can be readily expressed in appropriate language or in words from which the intention is necessarily implied. Nor are we impressed with the claim that the circumstances surrounding the parties to this agreement, at the time it was entered into, and the relations which existed between them, are of a nature from which a different purpose may be implied, or are such as to invoke a strained construction in favor of the heirs. It is true that at the time the agreement was made the husband possessed most of the land, and the wife brought but little in the way of property or means to the marriage, and was at the time past middle life. However, they lived together for more than 30 years, during which she doubtless contributed her share to his further accumulation of property. Moreover, he had three minor children at the time of this marriage, and the evidence warrants the inference that Jane Rouse became a mother to them. The circumstances, it will be observed, are not similar to a case where an old man, in his declining years, having property of his own, enters the marriage relation with a woman younger than himself, neither expecting that the relation will extend beyond a few years at most, and a contract is made which the circumstances assist in construing as intended to provide that the wife at his death shall take a certain compensation in lieu of any interest the law might give her in his estate.

The agreement might have provided that in case the wife survived the husband she should take no share in his estate by inheritance, but the provision that the husband should have the option to dispose of his property by will or otherwise cannot by implication be said to mean that, in the event he failed to exercise such option, the laws of inheritance should be set aside and the wife be left in the same situation as though he had exercised the option. Notwithstanding the contract, he could have devised all of his property to his wife. There was no will, no disposition by him in his lifetime, although she had agreed that he might make a will or other disposition. This is a contest between his heirs and the wife. The heirs are not mentioned in the agreement, and must take under the laws of descent, the same laws which gave her one-half of the husband's property where he dies intestate. The limitation of the husband's power of disposition in the subsequent clause cannot be extended by implication beyond the plain import of its terms.

While we are not prepared to say that an express provision must always appear in or

der to deprive the survivor of the rights of inheritance, there are authorities which go to that extent. See Stewart v. Stewart, 7 Johns. Ch. (N. Y.) 229, cited and relied upon in Kistler v. Ernst, supra. In that case Chancellor Kent said: "The court cannot take away the right of the husband to the personal estate of his wife, when it is not taken away by the settlement or by the exercise of the power of appointment under it. When the settlement makes no disposition of the property in the event of the wife's death, and provides only for her dominion over it during coverture, the right of the husband, as survivor, is a fixed and stable right, over which the court has no control, and of which he cannot be devested. The settlement cannot be extended by construction beyond the just and fair import of its provisions; and, clearly, the court cannot create a settlement, or a disposition of property, in violation of the jus mariti, when none has been made by the party." See, also, Jones & White v. Brown, 1 Md. Ch. 191; Talbot v. Calvert, 24 Pa. 327; Brown's Adm'r v. Brown, 25 Tenn. 127; Sutherland et al. v. Sutherland et al., 69 Ill. 481; Christy v. Marmon, 163 Ill. 225, 45 N. E. 150. In commenting upon an antenuptial agreement the Supreme Court of Iowa in Re Estate of Peet, 79 Iowa, 185, 188, 44 N. W. 354, 355, said: "It must be understood that contracts designed to divest the wife of the benefits of the statutes in her favor after the death of her husband *** must not be of doubtful interpretation, but specific and certain as to such intent."

It follows from what has been said that the judgment must be reversed, and remanded for further proceedings in accordance with these views. All the Justices concurring.

(77 Kan. 803)

MISSOURI PAC. RY. CO. v. TRAHERN. (Supreme Court of Kansas. July 5, 1907.) RAILROADS--ACCIDENTS AT CROSSINGS-CON

TRIBUTORY NEGLIGENCE.

Plaintiff, struck and injured at railroad crossing, held guilty of contributory negligence, barring recovery, though no signal was given. [Ed. Note. For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1080-1083.]

Error from District Court, Miami County; W. H. Sheldon, Judge.

Action by Matilda Trahern against the Missouri Pacific Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error. Reversed, with directions to enter judgment for defendant.

Waggener, Orr & Challis and A. Lane, for plaintiff in error. Frank M. Sheridan, for defendant in error.

PER CURIAM. Matilda Trahern was injured while attempting to cross the track of the plaintiff in error in front of a passenger train while it was running on a street through

the city of Le Roy. She settled with the company and released it from further liability, but afterwards commenced this suit in the district court of Miami county, where she recovered a judgment for $1,937.27. The company has brought the case here and asks that the judgment be reversed on account of the contributory negligence of the plaintiff, as shown by the special findings of fact found by the jury, and that a judgment be directed in its favor for costs.

The special findings, so far as they relate to the question of contributory negligence, read:

"Q. 41. What time of day was it when plaintiff was injured? A. About 4 o'clock, p. m.

"Q. 42. Was it daylight when said accident occurred? A. Yes.

"Q. 43. From which direction did plaintiff approach defendant's track? A. From the west, and a little north.

"Q. 44. From the point where plaintiff was injured for what distance north was defendant's track straight? A. About 3,000 feet."

"Q. 46. From which direction was defendant's train approaching? A. From north. "Q. 47. How far south of Fourth street crossing did the accident occur? A. About 60 feet.

"Q. 48. Just before attempting to cross said track, and when plaintiff was in a position of safety, did she look along said track, and in the direction from which said train was coming? A. Yes.

"Q. 49. Did she then discover said approaching train? A. Yes."

"Q. 52. At a distance of from 5 to 10 feet west of said railroad track, how far north along said track could plaintiff see, if she had looked? A. About 3,000 feet.

"Q. 53. When did plaintiff first discover the approach of said train? A. When she came out on walk.

"Q. 54. When plaintiff first discovered the approach of said train what did she do? A. Looked at the approaching train, and, thinking that she had ample time to cross the track without danger, started to cross."

"Q. 60. Just before plaintiff started over said track, did she know that said train was approaching from the north? A. Yes.

"Q. 61. For what length of time next preceding the date of the injury to the plaintiff had she resided near to said railroad track? A. About two or three years."

"Q. 64. Do you find from the evidence that previous to the date of said accident plaintiff had knowledge that freight and passenger trains passed to and fro over said track daily, and many times each day? A. Yes."

"Q. 66. Do you find from the evidence that plaintiff, at the time of said accident and just before she attempted to cross said track, was in possession of all her faculties of sight and hearing, and that they were in their normal condition? A. Yes.

"Q. 67. What was the distance between the west rail of said track and the west line of said street in front of plaintiff's house? A. About 28 feet."

"Q. 69. At any point between the west line of said street and the west rail of said track, if the plaintiff had looked, could she have seen said approaching train from the north? A. Yes."

"Q. 72. Just before plaintiff reached the west rail of said track, if she had listened, could she have heard said approaching train? A. Yes."

"Q. 74. How many feet did plaintiff walk on said street after she left her own premises until she reached the west rail of said track? A. About 30 or 40 feet."

"Q. 76. Do you find from the evidence that plaintiff saw said approaching train, and, thinking that she had ample time to cross over the track before it reached her, made an effort to do so? A. Yes.

"Q. 77. Just before plaintiff reached the west rail of said track, and when in a place of safety, how far was said approaching train from the point where she crossed the track? A. At or north of Fourth street."

"Q. 86. Do you find from the evidence that just before plaintiff was struck by the engine she turned her back to said approaching train? A. Partly. Evidence shows she was going in a southeasterly direction."

"Q. 90. How far would plaintiff have been required to step to have been out of danger? A. Two or three feet."

"Q. 94. When plaintiff stepped from a place of safety, and onto said track, how far was said engine from her? A. About 60 feet."

These findings are made almost wholly from the testimony of the plaintiff. They show that she was grossly negligent. She was familiar with the operation of trains at that place, knew that their speed was not uniform, she saw the train coming, realized that is was dangerously near, and hurried to get across safely. She knowingly and unnecessarily took the chance and lost. The negligence on the part of the company was not the cause of her injury. The failure to sound bell or whistle did not deceive or mislead her. The object of these alarms is to notify people of an approaching train. She already possessed all the information which they could have given. It is claimed that It is claimed that the train moved at a speed greater than allowed by the city ordinance, but it does not appear that the plaintiff knew of such regulation or that she relied upon the prescribed speed. On the contrary, it appears that she knew the speed of trains was not uniform. They sometimes moved slowly, and at times rapidly. She acted with a full understanding of the situation. People who thus defy danger must accept the consequences.

The judgment is reversed, with direction that judgment be entered for the plaintiff in error for costs.

91 P.-4

(76 Kan. 198)

BOMAN v. BANKERS' UNION OF THE WORLD.

(Supreme Court of Kansas. July 5, 1907.) INSURANCE - MUTUAL LIFE INSURANCE CHANGE OF BY-LAWS--EFFECT ON BENEFICIARY.

The defendant in error was incorporated as a mutual life insurance association and issued a joint certificate to Boman and wife, by the terms of which, and the by-laws which were made a part of the contract, the association agreed to pay the survivor, upon proof of the death of the other, an indemnity of $1,000, subject to certain deductions provided for by a bylaw then in force. Subsequently, the association passed a new by-law, which, if applicable to said certificate, would greatly reduce the indemnity. Neither Boman nor his wife had any notice or knowledge of the new by-law during her life, but they continued for many months after the new by-law was passed to pay the monthly assessments at the rate required at the time their certificate was issued, and the association received such payments without objection to their sufficiency. The wife died, and Boman made proof of the death and demanded the indemnity, and the association offered him the amount he would be entitled to under the new by-law, but less than one-third the amount to which he would be entitled under the former by-law.

Held, although Boman and wife may have agreed in the acceptance of the certificate to be bound by subsequently enacted by-laws, the association waived the enforcement of the new by-law, and is estopped from asserting it against Boman.

[Ed. Note. For cases in point, see Cent. Dig. vol. 28, Insurance, § 1855.]

(Syllabus by the Court.)

Error from District Court, Allen County; Oscar Foust, Judge.

Action by Alvin Boman against the Bankers' Union of the World. Judgment for defendant. Plaintiff brings error. Remanded. with instructions to modify judgment.

Ewing, Gard & Gard, for plaintiff in error. Austin & Hungate, for defendant in error.

SMITH, J. This action was commenced in the district court of Allen county by Boman to recover, as the surviving beneficiary, his wife having died, the indemnity on a joint policy of life insurance issued to them during her lifetime. The policy on its face purported to afford indemnity to the survivor in the sum of $1,000, payable 90 days after the receipt of proof of the death of the other spouse. It is specified in the policy that payment of all benefits under the policy should be governed by the provisions of the by-laws, but there is no agreement authorizing any change in the by-laws or any agreement to abide by abide by any subsequent change therein which would affect the amount of the indemnity.

The policy reads: "This certifies that Alvin Boman and Helena Boman having each complied with all of the requirements of the order, and in consideration of the payments of premiums and fees necessary to be paid in advance herein, are members of Jeddo Lodge No. 1073 of the Bankers' Union of the World

located at Humboldt in the state of Kansas and they are each entitled to all the rights, privileges and benefits of membership therein. That upon receipt by the supreme lodge at its office in the city of Omaha, Nebraska, of satisfactory proofs of the death of either of said members while in good standing in this order, and within ninety days after the receipt of such proofs, there will be paid to the surviving member, upon surrender and cancellation of this policy, the sum of one thousand dollars. The payment of all benefits under this policy shall be governed by the provisions of the laws pertaining to this class of policies, which provisions, together with the statements made by the insured in their application for membership and the statements certified by the insured to the medical examiner, are hereby made a part of this contract. This policy is issued to and accepted by both of said members upon the terms and subject to the conditions set forth in the constitution and by-laws of this union, and subject to the conditions and stipulations on the reverse side hereof, all of which are hereby made a part of this contract as fully as if they were recited at length over the signatures hereto affixed."

member whose death shall first occur, from which the joint rate was fixed.

It is contended that the following stipulation in the application for membership binds the members not only to comply with any by-laws which may be enacted, but also authorizes the corporation to change or reduce the benefit: "I agree that the maintenance of my membership in the Lodge of the Bankers' Union of the World and the compliance on my part with the constitution, by-laws, regulations and requirements which are now in force or may hereafter be enacted by the said Bankers' Union of the World, is the express condition upon which I am entitled to enjoy the rights, benefits and privileges of membership in the beneficiary department of this order." Certain it is that the by-laws were explicit on this subject. Division 9, section F, thereof reads: "Every certificate of insurance heretofore issued, or that may be hereafter issued shall be subject to, governed by and construed in accordance with the constitution and by-laws of this order or any amendments thereto that may be hereafter adopted, and all claims shall be settled in accordance with the various provisions thereof as the same may be in force at the time such claim arose." Also division 12, section B: "The Constitution may be altered or amended by the Supreme Lodge at any

tried to the court upon an agreed statement of facts. The policy and all the pertinent portions of the by-laws necessary to an understanding of such agreed statement are above set forth.

The only conditions or stipulations on the reverse side of the policy which can affect the questions here involved are: "Death Benefit. Within ninety days after receipt | regular or special meeting." The case was and approval of satisfactory proofs of the death of either of the said members, there shall be paid to the surviving member, if living, otherwise to the legal heirs of such surviving member, upon the surrender and cancellation of this policy, such balance, if any, of the amount payable under this policy, if such remains unpaid to the said member; payable at the supreme office at Omaha, Nebraska, upon the surrender and cancellation of this policy. Should either of said members die before having lived out their expectancy of life, based upon age at time of entry, according to the American Experience Tables of Mortality, there shall be deducted from the death benefit payable hereunder a sum equal to the amount of one payment (at the rate of the member whose death shall first occur, from which the joint rate was fixed) for each month of the unexpired period of such life expectancy with 4 per cent. on the unpaid balance of such sum. Accident and disability payments hereunder shall be subject to proportionate deductions. All deduction, as provided above, shall remain in the benefit fund until transferred to the reserve fund, in accordance with the constitution and by-laws of the order."

From which it will be seen that there is here no provision for a subsequent fixing of the amount of the deduction in case of the death of either of the assured before the expiration of his or her life expectancy; but the reduction is to be determined from the amount of one payment at the rate of the

The agreed statement of facts is as follows: "Agreed Statement of Facts. In addition to the facts admitted in the pleadings. and without waiving any such admissions, now, to wit: It is hereby stipulated and agreed that the following facts be and hereby are admitted herein: (1) That the defendant is now, and was at all times mentioned in plaintiff's petition, a fraternal beneficiary association organized and incorporated under the laws of the state of Nebraska, and authorized to, and doing business as such fraternal beneficiary association in the state of Kansas. (2) That on or about the 31st day of December, 1901, said defendant duly executed and delivered to said plaintiff and one Helena Boman, now deceased, who was at said time and thereafter the wife of plaintiff, a certain joint policy of insurance, as provided by the constitution and by-laws of the defendant in force at that time, granting therein benefits or indemnity in case of death of one of said parties to the surviving one the sum of $1.000.00; a copy of which policy is attached to plaintiff's petition, marked Exhibit A,' and which is referred to and made a part of this agreed statement of facts. (3) That prior to the execution and delivery of said policy, said plaintiff and said Helena Boman each separately made application for

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