The Advocate and news., 1898-01-19
Opinion.
Per Curiam.
AFFIRMED.

scent from him. He left q will disposing
of part Of his estate, but died intestate
as to the land in question, and without
widow or issue. His mother, Rosetta She'll
house SaXton, survived him She was alive
In December 1891, and on the 18th of that
month joined with the other plaintiffs in
the filing of an amended petition in the
case. 1t is said in the brief Of counsel
that she died subsequent to the institu-
ton Of the suit. Her husband being dead
she became, upon the death OF her son
Albe M, his sole heir. In the will Of Albe
Nj. SaXton, provision was made for the
payment to his mother of legacy of 800
per month for her maintenance during
life, but the gift was accompanied by
an express declaration in the will, that
1t should be in full of all claims she might
have in his estate, and that she should not
inherit any part Of his estate by right of
descent or otherwise. The plaintiffs in
error in their brief, In speaking of the
deceased and the provision made by him
for his mother, say:
His aged mother, Rosetta ShellhOuse
SaXton, survived him, but was fully pro-
Vided for in his will and barred from in
heritlng. any further part as heir"
The defendants in error in their brief, do
not controVert the statement of fact thus
made,or the legal conclusion of the plaintim
in error as to the lack of interest Of Ro-
setta Shellhouse SaXton in the estate of
her deceased son. In fact, the defendants
in error, who were plaintiffs in the court
below, as already stated, joined her as
a party with them, and made the above
quoted averment of her exclusion by will
from the estate Of her son. The case Is
presented to us in argument by both sides.
as though Rosetta Shellhouse Saxton had
died prior to the death of her son, and
indeed, the plaintiff in error epitomizes
the statement of the controversy in the
following language:
"a. and B. are husband and wife, and
have born to them three children, c., d:
and e., and then die; Q. marries F. and
dies without issue; e. then marries
r. and second wife die, d. then dies un-
married and intestate, leaving property
to descend to his legal heirs under the
laws Of Kansas. Query: Does q. inherit
the whole Of DIS property, or does G.
inherit through his father F.. the share
that would have gone to c. had she sur
vived ID. p
In this illustration A. and B., said to
have died first, represent Rosetta She'll
house SaXtOn and her husband, ana D.,
said to have afterwards died, represents
Abe M. Saxton, their son, from whom
do not raise the legal question which coun-
sci for both sides have presented and dis
cussed The land in suit did not pass
collateral kins-people and their heirs. 1t
passed to his mother notwithstanding the
terms of his will, and all the parties must
Cldlm LnEOuSu uGI. OCCllOll ~ VI Jul SNoN-
ute of descents declares IF the intestate
leave no issue the whole of his estate
shall go to his wife If he leave no wife
or issue all his estate shall go to his par
ents" And section q declares that If
one Of the parents be dead, the whole OF
the estate shall go to the survivor The
law thus casts the descent, and 1t can
be DETECTED along no other line, except
sition The will Of Albe M. SaXton con-
tanned no terms Of disposition contrary
TO the rule of statutory descent. 1t Is
true that after providing the legacy Tor
his mothers maintenance, he declared:
'I will that the same shall be in full
Of all claims she may have in my estate. estate.
and that she shall not inherit any further
part of my estate in line OF succession
or otherwise"
But such declaration must be regarded
as nugatory unless the estate which the
law gives to the parent is in terms dis
posed to someone else. the VIII doeS not
provide that the estate from which II
seeks to exclude the mother shall go to
any specifically named person It does NOT
provide that It shall M go to those Tera AVN %np
Albe NJ SaXton left no heirs except MS
mother. She was the sole inheritor OF
his property in this State: II erect is 70
be given to that provision of the Will
(which undertakes to exclude her from the
Inheritance, who then is entitled to the
property? None of the parties are enti-
tied to 1t under the Will, because 10 uOlS
of them was it devised. None Of them are
entitled to 1t under the statute, because
the statute gives it to them only through
Rosetta ShellhOuse SaXton and upon her
death Effect may be given, probably to
terms Of exclusion of one or more per-
sons who stand in equal rights with others
under the statute of descents. For instance,
If the father of Albe NJ Saxton had been
living, 1t might be that the exclusion of
his mother would have operated to vest
the estate wholly in his father In such
fastened itself upon one qualified by the
statute to hold it, and to cast it upon his
death down the line of succession. What
might be the rights of the wife In such
case, in the event she outlived her hus-
band is not even conjectured. The sup
positions case is used for the purpose Of
illustration only. 1t is not possible, how
Shn1ihnnsn So Yfnn in This case whn ia