First Trust Co. of Wichita v. Varney

• Decision Date: 08 June 1935
• Docket Number: 32315.
• Citation: 142 Kan. 93,45 P.2d 582
• Parties: FIRST TRUST CO. OF WICHITA v. VARNEY.
• Court: Kansas Supreme Court

45 P.2d 582

142 Kan. 93

FIRST TRUST CO. OF WICHITA v. VARNEY.

No. 32315.

Supreme Court of Kansas

June 8, 1935

Syllabus by the Court.

Will providing for certain monthly payments to legatee for life held to disclose testatrix' intention that payments should be made from corpus of trust fund when income of fund was insufficient to make payments.

Under will directing monthly payments to be made to legatee for life, in absence of contrary provision, payments should start at testatrix' death.

Where will directed payment of $75 monthly to legatee for life proposed settlement whereby trustee agreed to pay to legatee lump sum sufficient to purchase annuity of $75 per month for man of legatee's age held improper, since such settlement would thwart testatrix' intention.

1. In an action for the construction of a will, the provisions of the will are examined and it is held it was the intention of the testator that certain monthly payments to a legatee provided for should be made from the corpus of a trust fund when the income of the fund was insufficient to make them.

2. Where a will directs certain payments to be made to a legatee for life, in the absence of a provision to the contrary, the payments should start at the death of the testator.

3. A will directed certain monthly payments to be made to a legatee for life. Held that it was not necessary to the carrying out of the intention of the testator that a settlement of the monthly payments should be made whereby a lump sum would be paid the legatee, and such a settlement is disapproved.

Appeal from District Court, Sedgwick County, Division No. 1; Ross McCormick, Judge.

Action by the First Trust Company of Wichita, trustee of the estate of Gracie Varney, deceased, against Dr. Franklin Varney. Judgment for defendant, and plaintiff appeals.

Judgment affirmed in part and reversed in part.

M. P Shearer, of Wichita, for appellant.

H. L Kelly, of Peoria, Ill. (Opal E. Kelly, of Peoria, Ill., of counsel), for appellee.

SMITH Justice.

This is an action whereby the plaintiff asks a construction of a will. Judgment was for defendant. Plaintiff appeals.

The facts are admitted. Gracie Varney died testate on June 8 1933. The portions of her will with which we are concerned are as follows:

"Item Eight: All the rest, residue and remainder of my estate, real, personal, and mixed, of which I may die possessed, or to which I may be entitled, and estates in reversion, remainder or expectancy, I hereby give, devise and bequeath to The First Trust Company of Wichita, Kansas, as trustee in Trust, and vest in said Trust Company the title thereto, including all of my interest in the following described real property in Sedgwick County, Kansas *** being the same property leased by me to the Kansas National Bank of Wichita, Kansas, for a period of ninety-eight (98) years, from March 1, 1918, at a monthly rental of One Hundred and Seventy-five ($175.00) Dollars per month, which lease has been assigned to The First National Bank in Wichita, Kansas, and upon which property the said, The First National Bank in Wichita, has erected a portion of its building together with all my rights in and to the said property, and the said lease, and a contract of sale, whereby I have agreed to sell and convey said real property to the First National Bank in Wichita, Kansas, for Forty Thousand ($40,000.00) Dollars, subject to said lease, which shall merge at my demise in a deed, when duly delivered by The Fourth National Bank in Wichita, Kansas (the escrow holder) to The First National Bank in Wichita, Kansas, upon completion of the payment of the consideration of Forty Thousand ($40,000.00) Dollars; giving and granting unto the said, The First Trust Company of Wichita, Kansas, its successors and assigns, the full right, power and authority to collect all of the rentals from the said premises that may be due and payable under the said lease, and the balance of the said consideration of Forty Thousand ($40,000.000) Dollars, which may be due and payable, and to invest said monies in safe and conservative securities (either Bonds of a City of the First Class of the State of Kansas, or Bonds of the Government of the United States of America, or Bonds secured by First Mortgages on land in Kansas), and dispose of all of the net income of the said money, as hereinafter set out; the said devise and bequest herein made being in trust for the purposes hereinafter named:

"A. I hereby expressly will and ordain that said Trustee shall pay unto Dr. Franklin T. Varney of Nauvoo, Illinois, the sum of Seventy-five ($75.00) Dollars per month during his life time.

"B. I, the said Testatrix, having in mind the worthy and needy poor of the City of Wichita, and being moved by a spirit of broad philanthropy and good will, do, hereby create this trust, to be known and called The Varney Charitable Fund for the worthy and needy poor of Wichita, and the net income of said money shall be used for the benefit of said worthy and needy poor of the City of Wichita, as the said City is now constituted, or may hereafter be bounded, from time to time, and this trust is made for such worthy and needy poor without regard to age, sex, race, color or creed, for all time, subject to the above bequest to Dr. Franklin T. Varney."

At the time of the death of Mrs. Varney, she was making her home with Dr. and Mrs. Franklin T. Varney in Illinois. At that time the estate consisted principally of a tract of real property in Wichita. This tract was under lease to the First National Bank in Wichita for a period of ninety-eight years from March 1, 1918, at a net monthly rental of $175. About three years prior to her death, Mrs. Varney entered into a contract for the sale of this real property to the First National Bank of Wichita, Kan., for $40,000, a part of which was paid in cash, a part to be paid in monthly payments, and the balance to be paid to her estate...