Dees' Estate, In re

• Court: Kansas Supreme Court
• Writing for the Court: HALL
• Citation: Dees' Estate, In re, 308 P.2d 90, 180 Kan. 772 (Kan. 1957)
• Decision Date: 09 March 1957
• Docket Number: No. 40401,40401
• Parties: In re ESTATE of Maude E. DEES, Deceased. Paul K. MARSH and Mary Abraham, Appellants, v. Rufus R. MARSH, Individually and as Executor of the Last Will and Testament of Maude E. Dees, Deceased, Appellee.

Page 90

308 P.2d 90

180 Kan. 772

In re ESTATE of Maude E. DEES, Deceased Paul K. MARSH and Mary Abraham, Appellants, v. Rufus R. MARSH, Individually and as Executor of the Last Will and Testament of Maude E. Dees, Deceased, Appellee.

No. 40401.

Supreme Court of Kansas.

March 9, 1957.

Syllabus by the Court

1. Where a will devises real property in fee simple followed by a limitation against selling, mortgaging or otherwise conveying or alienating said property with a reversion for violation thereof, and such limitation violates the rule against perpetuities or the rule of unlawful restraint of alienation, under decided legal principles, the limitation fails and the devisee takes the full estate devised in this case a fee simple absolute.

2. The general rule is that where an attempted ultimate executory interest fails in its inception because of the rule against perpetuities the prior interest becomes indefeasible.

3. The common-law rule against perpetuities is in force in this state.

4. The common-law rule against restraints on alienation is in force in this state provided, however, some restrictions have been declared effective where a grantor or testator provides an effective barrier to enforce the restriction; otherwise, the cases follow the general rule.

5. Where one provision of a will is invalid because it violates the rule against perpetuities, and the testamentary scheme of the testator can be determined and carried out regardless of the void provision, that provision will be stricken out and the testamentary plan given effect.

6. The cardinal rule in the construction of wills is that the intention of the testator must be ascertained if possible and must be given effect if it is not contrary to an established rule of positive law or in violation of public policy.

7. The privilege of construing a will is not a privilege of reconstructing it. In construing wills, courts have no authority to reform them or to excise from them important provisions which have a bearing on the testator's intention.

Lawrence E. Christenson, Winfield, argued the case, and Marion P. Mathews and W. R. Mathews, Winfield, were with him on the briefs, for appellants.

George Templar, Arkansas City, argued the cause, and Earle N. Wright and Ted M. Templar, Arkansas City, were with him on the briefs, for appellee.

HALL, Justice.

This is an appeal from a judgment construing a will. The case was tried by the district court on appeal from a judgment of the probate court.

The matter was submitted on an agreed statement of facts. The salient facts to understand the issues of the case are as follows:

Maude E. Dees, a widow, died testate. She was childless and was survived by Paul K. Marsh, a brother, petitioner and appellant herein; Rufus R. Marsh, a brother, respondent and appellee herein; Mary Abraham, a niece and child of Eliza Marsh Brown, a deceased sister, petitioner and appellant herein. She was also survived by three nephews, sons of deceased sisters, who do not appear in the case.

At the time of her death she owned a small amount of personal property and her home in Arkansas City, Cowley County, Kansas.

The last will and testament of Maude E. Dees was admitted to probate on December 10, 1954, and pursuant to the provisions thereof, Rufus R. Marsh was named executor. On October 17, 1955, Rufus R. Marsh filed his petition, as executor of the estate, for final settlement and for construction of the will of testatrix claiming that the provisions of Item III of the will are repugnant to the devise in fee simple to Rufus R. Marsh of the real estate described in Item II and therefore unenforceable, and that the provision for the reversion of title is void for the reason it violates the rule against perpetuities and that the title of Rufus R. Marsh is in fact an unencumbered, unrestricted complete fee-simple title.

Respondents (petitioners and appellants here), Paul K. Marsh and Mary Abraham, filed written defenses complaining the will should be construed and that Rufus R. Marsh should have no more than a life estate, and, in the alternative, because of the contradictory terms of the will, the property should pass under the law of descent and distribution.

The probate court entered its order construing the will of the testatrix and determined that the title should be assigned to Rufus R. Marsh, his heirs and assigns, in fee simple without any conditions or restrictions.

An appeal was taken by Paul K. Marsh and Mary Abraham to the district court from the order of the probate court.

The disputed paragraphs of the will are as follows:

'II.

'I devise and bequeath my property at 206-212 North Second Street, described:

Lots Seventeen (17), Eighteen (18), Nineteen (19), Twenty (20) and Twenty-one (21) in Block 127,

Arkansas City, Cowley County, Kansas,

to Rufus R. Marsh, to have and to hold the same in fee simple, said bequest and devise being subject, nevertheless to the provision of Item III herein.

'III.

'I further direct that if said Rufus R. Marsh, or his heirs, should sell or mortgage, or attempt to sell or mortgage, or otherwise convey said property, that their interest in said real estate shall be forfeited and the same shall at once revert and be distributed to my heirs at law then living.'

The district court affirmed the order of the probate court and remanded the matter to the probate court to be closed in accordance with the findings of fact and conclusions of law of the district court.

Those findings and conclusions pertinent to this appeal are as follows:

1. As a matter of law Item III of the will of Maude E. Dees, deceased, dated June 14, 1950, is void for being in violation of the rule against perpetuities which requires that no future interest in property can lawfully be created which does not necessarily vest within 21 years after some life or lives presently being.

2. The attempt to perpetually restrain the alienation of real estate devised in fee simple is void as being repugnant to and inconsistent with the granting of a fee-simple title.

3. Rufus R. Marsh, under the terms of Item II of the will, received an unrestricted fee-simple title in and to the real estate therein described with all the incidents of a fee-simple title, including the full power to sell, mortgage or otherwise convey or devise said real property at any time.

In support of his theory that Rufus R. Marsh should have no more than a life estate with remainder to the heirs at law of Maude E. Dees, respondents and appellants contend that a reading of the entire will makes obvious testatrix' intention that the only persons she wanted to enjoy the unrestricted title to the real estate in question were her heirs at law and that she desired Rufus R. Marsh only be able to enjoy the use of it. They further contend that the intention and purpose of the testatrix should be gleaned from the four corners of the will and that the limitations though void should not be deleted from the will and discarded. They contend that it would be a new and harsh rule to cut off those persons whom the testatrix gave the remainder merely because the use by Rufus R. Marsh and his heirs in perpetuity is void.

In support of their position they cite Bullock v. Wiltberger, 92 Kan. 900, Syl. 2, 142 P. 950; Markham v. Waterman, 105 Kan. 93, 181 P. 621; Bierer v. Bierer, 121 Kan. 57, 245 P. 1039; Johnson v. Muller, 149 Kan. 128, 86 P.2d 569; Jones v. Petrie, 156 Kan. 241, at page 243, 132 P.2d 396; In re Estate of Ellertson, 157 Kan. 492, at page 496, 142 P.2d 724; McEwen v. Enoch, 167 Kan. 119, 204 P.2d 736; and In re Estate of Johnson, 175 Kan. 82, 259 P.2d 176.

These authorities do not prove their point.

Appellants agree that the limitation in Item III of the will violates the rule against perpetuities. The limitation here is an executory devise and a future interest which does not vest within the required 21 years after some life or lives presently in being. This is the common-law rule and is in force in this state.

The rule has been sustained in many cases. The following authority will suffice. Lasnier v. Martin, 102 Kan. 551, Syl. 2, 171 P. 645:

'The rule against perpetuities is that no future interest in property can lawfully be created which does not necessarily vest within 21 years after some life or lives presently in being, excluding from such computation of years the incipient life of infants in ventre sa mere.'

See, also, In re Estate of Davis, 171 Kan. 605, 611, 237 P.2d 396; and Tiffany, Real Property, p. 344 (Two volumes in One Ed.).

In Beverlin v. First National Bank, 151 Kan. 307, 98 P.2d 200, 203, 155 A.L.R. 688, our court said:

'The rule against perpetuities, as stated by Gray, Perpetuities [3d. ed.], Section 201, is as follows: 'No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.' The common-law rule, as stated by Gray, is in force in this state.' See, also, Keeler v. Lauer, 73 Kan. 388, 85 P. 541; and Klingman v. Gilbert, 90 Kan. 545, 135 P. 682.

The limitation in Item III is not only void because it violates the rule against perpetuities, it is also void because of an unlawful restraint on the alienation of property. Appellants Marsh and Abraham also concede this.

The general rule relating to restraint on the alienation of property is discussed in 41 Am.Jur., Perpetuities & Restraints On Alienation, p. 108, Sec. 66, it is declared:

'The general rule is that one of the incidents of ownership of property is the right to convey it, and the law will not permit the rights of ownership to be fettered by the imposition of restraints by grantors or testators who seek to convey or dispose of their property and at the same time maintain control over its alienation or use. Furthermore, the law seeks to encourage the ready alienation of property of all kinds and to discourage restraints upon alienation which would have the effect of withdrawing such...