Fourth Nat. Bank v. First Presbyterian Church

Decision Date30 January 1932
Docket Number30566.
PartiesFOURTH NAT. BANK v. FIRST PRESBYTERIAN CHURCH et al.
CourtKansas Supreme Court

Syllabus by the Court.

Contract between surviving husband and church corporation to furnish money for memorial to deceased wife held not in violation of separate wills and joint will of husband and wife and trust created thereby.

A husband and wife, owners of large estates of about equal value, each made individual wills, giving special devises and bequests to certain children and friends, and each giving the other spouse all the remainder of the property for use during life, with power to sell, exchange, and dispose of the property, but not by will, except certain assets that were named, and that the deed of conveyance of the survivor would transfer full fee and an absolute title to any of the property. A joint and mutual will was made at the same time by them in which they consented and agreed that each would abide by the individual wills, and that neither would make any will or codicil different from the wills than made, which joint and mutual will was to take effect on the death of both of them, and they then named a trustee to carry out the provisions of the wills. The wife died shortly afterwards whereupon the husband took possession of all the property and managed it and afterwards entered into a contract with a church corporation to erect a memorial to his deceased wife and set apart and deposited a considerable sum of money for that purpose. His action in contributing the money towards the erection of a memorial was challenged by legatees as a violation of the trust, arising from the joint and mutual will. Held, that the contract made for the erection and maintenance of the memorial was not a violation of the provisions of the wills, nor of the trust created, but is valid and enforceable.

Appeal from District Court, Sedgwick County, Division No. 1; J. E Alexander, Judge.

Action by the Fourth National Bank against the First Presbyterian Church, wherein certain parties intervene and certain defendants file cross-petitions. From orders overruling demurrers to the cross-petition, an appeal was taken.

Order reversed, with directions.

HARVEY HUTCHISON, and SLOAN, JJ., dissenting.

R. R. Vermilion, Earle W. Evans, Jos. G. Carey, W. F. Lilleston, George C. Spradling, Henry V. Gott, and George Stallwitz, all of Wichita, for appellants.

Chas. G. Yahkey, John L. Gleason, Kenneth K. Cox, N.C. Osborne, and J. Gregory Sears, Jr., all of Wichita, for appellees.

JOHNSTON C. J.

This action involves the validity of a contract made by Howard E. Case, now deceased, and the First Presbyterian Church of Wichita, in which Howard E. Case undertook during his lifetime to contribute and devote $100,000 of his money to pay one-half of the cost of a memorial for his deceased wife. The Fourth National Bank of Wichita was named as trustee to carry out the conditions of the contract. That bank filed its petition setting out certain wills and transactions between Howard E. Case and his wife, Sara B. Case, and in the disposition of property by the wills and transactions, and asking that certain heirs and beneficiaries under the wills should intervene and set forth their several rights and titles to the fund, and for a judgment construing the wills and determining the interests of all parties concerned, including the duties of the trustee in the premises. The parties came in and set up their several claims. The cross-petitions filed by defendants to whom devises and bequests were made, set up, among others things, that the contribution by Howard E. Case for a memorial to his deceased wife was invalid, demurrers to the cross-petitions were overruled, and from the rulings an appeal has been taken.

The controversy involves only questions of law arising on the pleadings. From the record, it appears that on May 2, 1928, each of the Cases made his and her separate wills, and at the same time their joint mutual and reciprocal will. In the individual wills bequests were made to children, relatives, and friends of each, and then a provision leaving to the surviving husband or wife the residue of their property each to the other, with full power of disposal during his or her life. Mrs. Case died March 25, 1930, and her will was at once probated. The residuary clause of her will devised and bequeathed her property to her husband as follows:

"I devise, bequeath and give to my husband, Howard E. Case, if he survives me, all of my property, real, personal and mixed of whatsoever kind and wherever located, with the right to use any part and all of the rents, profits and income there from as he sees fit for and during his natural life, but nevertheless subject to the charges and conditions as herein expressed. He to have the right to sell, exchange, lease and dispose of any part and all of said property, but not by will other than as in his joint will provided, except the stock which I hold in The Davidson-Case Lumber Company, a Kansas corporation having its principal office and place of business in Wichita, Kansas. His deed or conveyance to transfer the full fee and absolute title to any of said property.
"The rest, residue and remainder of my property and after the death of my said husband is to go as provided herein in the joint provisions made by my husband and myself to take effect after the death of each of us."

The individual will of Howard E. Case contained substantially like conditions as to the rights of Mrs. Case, if she survived him. In the joint and mutual will contemporaneously made, the provisions pertinent to this controversy were:

"We, Howard E. Case and Sara B. Case, and each of us, consenting to and agreeing with each other, and in consideration of the provisions heretofore and hereafter made and subject to the devises and bequests herein heretofore severally made and to take effect upon the death of the survivor of us, do will, devise and bequeath as follows," reciting the devises and bequests made by each to the other.

In another paragraph of the joint will it was stipulated:

"We, Howard E. Case and Sara B. Case, covenant each with the other to abide by each of our wills as herein made and to abide by the joint and mutual will as herein made, and covenant not to make any will or codicil different than this after the death of either one of us and do hereby consent to the making of this will and the will of the other and accept
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9 cases
  • Estate of Draper v. Bank of America, N.A.
    • United States
    • Kansas Supreme Court
    • April 17, 2009
    ...as involving `bad faith'"). This standard has been applied in Kansas in a related context. In Fourth Nat'l Bank v. First Presbyterian Church, 134 Kan. 643, 7 P.2d 81 (1932), the wife bequeathed certain property to her husband for use during his life and provided that on his death the remain......
  • Ohms v. Church of Nazarene, 6965
    • United States
    • Idaho Supreme Court
    • October 28, 1942
    ... ... N.E. 818); Rolls' Estate (Cal.), 226 P. 608; Fourth ... National Bank v. First Presbyterian Church, 7 P.2d ... ...
  • Hamilton v. Hamilton
    • United States
    • Texas Supreme Court
    • March 9, 1955
    ...of the Nazarene, 64 Idaho 262, 130 P.2d 679; National Life Ins. Co. v. Watson, 141 Kan. 903, 44 P.2d 269; Fourth National Bank v. First Presbyterian Church, 134 Kan. 643, 7 P.2d 81. We think the partition deeds had only the effect of dividing the property and otherwise conferred on the elde......
  • Tompkins' Estate, In re
    • United States
    • Kansas Supreme Court
    • November 6, 1965
    ...facts clearly distinguish the situation from that involving herein. In the case of The Fourth National Bank in Wichita v. The First Presbyterian Church, 134 Kan. 643, 7 P.2d 81, the question involved was the power of the survivor to contract for a memorial for his wife rather than a gift as......
  • Request a trial to view additional results

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