The opinion of the court was delivered by
Wells, J.:There are no formal assignments of error in plaintiff in error’s brief, and the main question for our consideration is, Do the findings of fact sustain the judgment rendered by the court below? Of this general question there are three subdivisions : (1) Is the action of the probate court res judicata as to the rights of the parties under the will? (2) Are the findings of the district court res judicata as to the rights of the parties to the land? (3) If the doctrine of res judicata does not apply in either of the foregoing cases, did the court below properly construe and apply the law applicable to the facts found? These questions we will consider in the order stated..
Paragraph 7245, General Statutes of 1889 (Gen. Stat.'1897, ch. 110, §41), provides that if any provision be made for the widow in the will of her husband, and she shall not have consented thereto in writing, the probate judge shall cite her to appear and elect whether she will take under the will or under the law. This is the only provision that authorizes the citation of the widow to appear and make *348her election, and that is only in case she shall not have consented in writing to the provisions of the will. In this case she did consent to the will in writing, and the probate court had no jurisdiction to make the citation it did make. The will was probated as a whole, including the consent, and if the widow desired to contest the validity of the consent she could do so under paragraph 7224, General Statutes of 1889 (Gen. Stat. 1897, ch. 110, §20). The rights of the devisees could not be disposed of in the expiarte and summary manner attempted in this case.
A more difficult question arises over the ejectment proceedings in the district court. In that case both' parties appeared and contested the issues involved. In Hentig v. Redden, 46 Kan. 231, 26 Pac. 701, the supreme court held : “ Where a judgment is rendered in this state for the plaintiff in an action in the nature of ejectment, the title which he recovers is thereby established as against the defendant.” And ordinarily the title established by an action in ejectment is res judicata and binding on the parties in all litigation, and this applies to all questions necessarily involved in the suit. The-pleadings in the ejectment case are not in the record and we cannot tell exactly what were the issues therein, but the judgment was for the defendant, the pláintiff in error here, and-was just what it should have been if his present contention is sustained. In other words, the plaintiff in error claims that the court rendered the proper judgment in the ejectment case but on the wrong theory, while the defendant in error claims that the theory on which the judgment was rendered is res judicata and settles the rights of the parties to the land in question. After considerable hesitation and investigation, we conclude that the proceedings in ejectment settled the question as to whether the plaintiff in that case was the owner' *349of the whole title to the land in question and entitled to the possession thereof as claimed by the widow, but there was no issue as to what, if any, interest the respective parties may have had therein as tenants thereof in common, and the findings of the court on the subject were outside of the issues in the case and are not res judicata.
This leaves for consideration the question, Did the court below properly construe and apply the law applicable to the facts found? Paragraph 7239, General Statutes of 1889, does not require that the consent of the wife be executed in the presence of two subscribing witnesses, but simply in the presence of two witnesses ; and if the consent in this case was executed in the presence of two witnesses, then it is binding on her, and cannot after the death of her husband be repudiated and avoided.
It appears from the findings of fact in this case that the decedent left at the time of his death $500 worth of personal property and 200 acres of land besides that in this controversy. The 200 acres of land lie partly in Geary county and partly in Riley county, and the value of it does not appear in the findings.
Under paragraph 7275, General Statutes of 1889, Charles Neuber had a right to dispose of one-half of his property by will, and by the phrase “ one-lialf of his property,” we think is meant or included the right to dispose of the whole of certain specific property to the value of one-half his estate. Therefore, if the con • sent of his wife to the will should be found to be void, the wife would only be entitled to such part of the devised property as, added to the property undevised, would equal in value one-half of the whole estate.
The judgment of the court below will be reversed, and a new trial directed to be had in accordance with the views herein expressed. -