Commercial Nat. Bank of Kansas City v. Martin

• Decision Date: 13 June 1959
• Docket Number: No. 41452,41452
• Citation: 185 Kan. 116,340 P.2d 899
• Parties: COMMERCIAL NATIONAL BANK OF KANSAS CITY, Kansas, a Corporation, Appellee, v. D. R. MARTIN et al., Defendants; Violet L. DeVore and Violet L. DeVore, Executrix of the Estate of Howard R. DeVore, Deceased, Appellant.
• Court: Kansas Supreme Court

Page 899

340 P.2d 899

185 Kan. 116

COMMERCIAL NATIONAL BANK OF KANSAS CITY, Kansas, a Corporation, Appellee, v. D. R. MARTIN et al., Defendants;

Violet L. DeVore and Violet L. DeVore, Executrix of the

Estate of Howard R. DeVore, Deceased, Appellant.

No. 41452.

Supreme Court of Kansas.

June 13, 1959.

Syllabus by the Court

Record in an action to quiet title to real estate is examined, and it is held: (1) The provisions of the will in question, as more fully set forth in the opinion, did not violate the rule against perpetuities (following In re Estate of Woods, 181 Kan. 271, 311 P.2d 359), and (2) the district court had jurisdiction to hear and determine the case (following Hildenbrand v. Brand, 183 Kan. 414, 327 P.2d 887).

Robert A. Anderson and Richard C. Byrd, Ottawa argued the cause, and Joseph W. Morris, Tulsa, Okl., was with them on the briefs, for appellant.

William S. Bowers, Ottawa, argued the cause, and B. F. Bowers, Ottawa, was with him on the brief, for appellee.

WERTZ, Justice.

This was an action brought in the district court by The Commercial National Bank of Kansas City, Kansas (appellee), against Violet L. DeVore (appellant) and other defendants not material herein to quiet title to three quarter sections of land situated in Franklin county. From a judgment in favor of appellee, defendant Violet L. DeVore appeals.

The facts are as follows: W. M. DeVore, a long-time resident of Williamsburg, Franklin county, died testate June 4, 1931, leaving as his sole survivors a son, Howard R. DeVore (age, fifty-seven) and a granddaughter, Margaret Fogle (age, twenty). He was a farmer, cattleman and president of the Williamsburg State Bank. His will and codicil were admitted to probate in Franklin county July 22, 1931; the estate was fully administered, and final settlement of the estate and discharge of the administrator with the will annexed was ordered July 17, 1934. No appeals were taken from that order, and the will was not construed.

At the time of his death W. M. DeVore owned the three quarter sections of land which are the subject matter of this action. In paragraph 11 of his will, W. M. DeVore devised the above-mentioned real property to his son, Howard, for life, and upon the death of Howard to the Kansas Trust Company in trust. The trustee was directed to sell the land, invest the proceeds in securities and pay the income therefrom to a certain named school district in Franklin county (Williamsburg) at semiannual periods to be used by that school district to maintain a course in vocational agriculture. The will provided that if the named school district should cease to exist and a new one should be created, then the income was to be paid to the new school district for the same purpose, and further that if the named school district ceased to exist and no other school district was created, or if the named school district or its successor 'shall fail for a period of one school year to maintain a course in vocational agriculture in said school, then this trust shall cease and terminate, and the principal of said trust fund shall be by said trustee paid to my heirs at law according to the laws of descent and distribution of the state of Kansas.' It is undisputed that the appellee is the legal successor to the trustee named in the will--the Kansas Trust Company--and the trial court so found.

Following the death of his father in 1931, Howard took possession of the land in question and remained in possession thereof until his death. During this period the appellee, as trustee under the will of W. M. DeVore, kept a watchful eye on the property and on at least one occasion contacted Howard with reference to the payment of taxes.

A few months prior to his death, Howard was married to the appellant. He died testate May 17, 1956, leaving as his sole survivors his wife (appellant) and his daughter, Margaret Fogle. Administration of his estate was begun nearly a year later and his will was admitted to probate in Franklin county April 3, 1957. Appellant was appointed executrix of the estate. Howard's will devised and bequeathed all his property, real and personal, to her as his surviving spouse.

On May 17, 1957, the appellee filed its petition in the Franklin county probate court, alleging ownership, as trustee, of the land in question and claiming title by virtue of the will of W. M. DeVore, and asked that letters of appointment as testamentary trustee be granted. Notice was given to all interested parties as provided by law, including notice to appellant individually and as executrix of the estate of Howard R. DeVore. Appellant, individually and as executrix of Howard's estate, filed exceptions and motions to the petition, and it was amended. On May 24, 1957, the probate court appointed the appellee as special trustee under the will of W. M. DeVore and stated that the trustee should not have power or authority to sell the land in question or to make any distribution of the income from the trust res until the dispute over ownership of the land was settled. On the same day, appellee filed its sworn 'inventory of trust estate,' stating that as trustee it was the legal owner, in trust, of the three quarter sections of land.

Upon motion of appellee, the probate court, June 11, 1957, issued an order authorizing the appellee, as testamentary trustee, to file a suit in the proper court for a declaratory judgment interpreting the will and codicil of W. M. DeVore to quiet title to the land in question. Appellant did not appeal from that order. Pursuant to that order, appellee filed this action in the district court of Franklin county for that purpose.

On May 31, 1957, appellant, as executrix of the estate of Howard R. DeVore, filed her inventory and appraisement in that estate and listed therein, as an asset, the three quarter sections of land in question.

Issues were joined in the district court action and the case proceeded to trial.

The trial court made findings of fact substantially in accord with those heretofore related, and concluded as a matter of law as follows:

'1. This action is brought for the purpose of quieting title and interpretting the provisions of Item 11 of the will of W. M. DeVore, Deceased, and the District Court has jurisdiction to determine all issues raised by the pleadings.

'2. From the words of the last will and testament and codicil thereto, its language, provisions and all parts thereof, and from the nature and extent of the testator's property and the various devises and bequeaths and dispositions made of his property by said last will and testament, the Court concludes that it was the intention of the testator to create and that he did create in his son, Howard R. DeVore, a life estate, and no further interest other than a life estate, in the North Half and the Southeast Quarter of Section 7, Township 18, Range 18, Franklin County, Kansas, and that said life estate terminated upon May 17, 1956, the date of the death of said Howard R. DeVore.

'3. The fee title to the North Half and the Southeast Quarter of Section 7 is vested in the plaintiff to be held in trust for the benefit of the Williamsburg Rural High School District all in accordance with and subject to the limitations of Item 11 of the will of W. M. DeVore, deceased.

'4. Item 11 of the will also creates in the heirs of W. M. DeVore, Deceased, a possibility of reverter should the School District ever cease or fail for one year to maintain a course in vocational agriculture. Upon the happening of that possible event the trust fund should be by the trustee paid to the testator's heir to be then determined.

'5. The public charitable trust and the possibility of reverter to the heirs are both valid and neither violates the rule against perpetuities.'

The court entered judgment in accordance therewith, quieting title to the land in question in the appellee, from which judgment this appeal was perfected.

The first question presented is whether the provisions contained in paragraph 11 of the W. M. DeVore will violate the rule against perpetuities. Appellant contends that the devise in trust for the benefit of the school district does, in fact, violate the rule and is, therefore, null and void because: (1) title to the three quarter sections of land devised in trust never actually vests in the trustee within the period of the rule for the reason that the trustee and beneficiary are limited to the spending of the income from the corpus and no express authority is given to the trustee to dip into the principal of the trust, and (2) paragraph 11 of the will indicates the primary intention of the testator was to devise the fee in the land to his heirs at law at a date so remote that it violates the rule. Appellee, on the other hand, contends that upon the death of the testator, W. M. DeVore, it acquired a vested remainder interest in the land, subject to Howard's life estate and to defeasance upon the happening of certain events specified in the will, and, therefore, appellee now has the complete title to the land in trust for the benefit of the school district.

At the outset it may be stated that a devise in trust for educational purposes, such as the one involved herein, creates a public charitable trust (Trustees of Washburn College v. O'Hara, 75 Kan. 700, 704, 90 P. 234; In re Estate of Porter, 164 Kan. 92, Syl. 3, 187 P.2d 520; 14 C.J.S. Charities § 15a, pp. 444-445), and it may be limited to a particular educational purpose or use (14 C.J.S. Charities § 15b, pp. 445-446). Such trusts are favorites of the law which must be upheld whenever possible, and once it has been determined a will contains language creating the trust, other language to be found therein which is susceptible of more than one...