Freshour's Estate, In re

• Court: Kansas Supreme Court
• Writing for the Court: SCHROEDER
• Citation: Freshour's Estate, In re, 345 P.2d 689, 185 Kan. 434 (Kan. 1959)
• Decision Date: 07 November 1959
• Docket Number: No. 41439,41439
• Parties: , 81 A.L.R.2d 806 In the Matter of ESTATE of Stanton E. FRESHOUR, Deceased. Lisle C. FRESHOUR and Esther Gatewood, Appellees, v. George KING, Executor of the Last Will and Testament of Stanton E. Freshour, Deceased, et al., Appellants.

Page 689

345 P.2d 689

185 Kan. 434, 81 A.L.R.2d 806

In the Matter of ESTATE of Stanton E. FRESHOUR, Deceased Lisle C. FRESHOUR and Esther Gatewood, Appellees, v. George KING, Executor of the Last Will and Testament of Stanton E. Freshour, Deceased, et al., Appellants.

No. 41439.

Supreme Court of Kansas.

Nov. 7, 1959.

Rehearing Denied Dec. 21, 1959.

Syllabus by the Court.

1. A testator by his will left property to the Bishop of the Diocese of Salina 'for the benefit of the Parish of Saint Joseph's Catholic Church, Hays, Kansas,' and also to the Trustees of the First Methodist Church, Hays, Kansas, 'for the benefit of the members of the First Methodist Church, Hays, Kansas.' In an attack upon the validity of these provisions in the will by the heirs, it is held the provisions of the will were not ambiguous, and upon interpretation of the language used in every part of the will valid charitable trusts were created for the benefit of the two church organizations.

2. A rule for the construction of wills, to which all other rules are subordinate, is that the intention of the testator, as garnered from all parts of the will is to be given effect, and that doubtful or inaccurate expressions in the will shall not override the obvious intention of the testator.

3. In determining the force and effect to be given the terms of a will, the court's first duty is to survey the instrument in its entirety and ascertain whether its language is so indefinite and uncertain as to require the employment of rules of judicial construction. Where, from an analysis of the entire instrument, no ambiguity or uncertainty is to be found in its language, the intention of the testator being clearly and unequivocally expressed, there is no occasion to employ rules of judicial construction and the will must be enforced in accordance with its terms and provisions.

4. There is no policy in this state to keep any class of propery in a favored channel of inheritance as against a will, and when there is a will the presumption is against intestacy.

5. It is essential to a valid charitable gift that it be for a purpose recognized in law as charitable. To constitute a charitable use or purpose, it must be a public as distinguished from a private one. It must be for the public use or benefit, and it must be for the benefit of an indefinite number of persons. However, this does not prevent the donor from selecting some particular class of the public and limiting his benefaction to that class, provided the class is composed of an indefinite number of persons rather than certain designated and named individuals.

6. Included among the purposes which are charitable are the advancement of education and the advancement of religion.

7. A charitable trust can be created although there is no definite or definitely ascertainable beneficiary designated, and a charitable trust is not invalid although by the terms of the trust it is to continue for an indefinite or unlimited period. As long as the property given in trust vests in the trustee immediately or within the period prescribed by the rule against perpetuities, trusts for charitable uses are not obnoxious to the rule although they may continue forever and beneficial interests may arise under them at a remote time.

8. Once a devise or bequest is determined to constitute a charitable trust, courts look with liberality on the instrument creating it for the purpose of carrying out the intention of the donor. Technical rules of construction, which have often prevented conveyances or bequests from taking effect, are disregarded.

9. When it is ascertained that the donor intended to create a public charity it will not be allowed to fail because the trustee is indefinite or uncertain or incapable of taking.

10. As the term 'church' imports an organization for religious purposes, a gift to a church or a church society by name, without declaration or restriction as to the use to be made of the subject matter of the gift, must be deemed to be a gift for the promotion of the purposes for which the church was organized.

F. F. Wasinger, Hays, argued the cause and was on the brief for appellant, George King, Executor.

Henry F. Herrman, Hays, argued the cause and was on the brief for appellant, Frederick W. Freking, Bishop of Diocese of Salina.

Norman W. Jeter, Hays, argued the cause and was on the brief for appellants, Trustees of First Methodist Church of Hays.

Oscar Ostrum, Russell, argued the cause, and J. Eugene Balloun, Russell, was with him on the brief for appellees.

SCHROEDER, Justice.

In this action the heirs of a testator challenge the validity of the trust provisions in the testator's will.

The question presented is whether certain devises and bequests in the testator's will establish charitable trusts or private trusts.

The decedent, Stanton E. Freshour, died testate on the 23rd day of April, 1953, at Hays, Kansas, and was survived by his two children. He was a resident of Ellis County, Kansas, and at the time of his death owned considerable real estate in Ellis County. His last will and testament was dated February 6, 1952, and was admitted to probate in the probate court of Ellis County on the 11th day of June, 1953. It was there established that the decedent was of legal age and sound mind and not under any restraint at the time he executed his last will and testament.

By the terms of the will the decedent devised to his daughter, Esther Gatewood, appellee, real estate which was appraised at $2,500. He also devised to his son, Lisle C. Freshour, appellee, real estate which was appraised at $8,000.

Omitting formal provisions of the will and the above devises to his children, the will provided:

'Fourth: Unto Bishop Frank A. Thill or his successor as Bishop of the Diocese of Salina, I give, bequeath and devise the following described real estate situate in Ellis County, Kansas, to be held, used, or disposed of for the benefit of the Parish of Saint Joseph's Catholic Church, Hays, Kansas, to-wit:

'The South Half (S/2) of Section Twenty-one (21) in Township Fourteen (14) South, Range Twenty (20) West of the 6th P.M.

'Fifth: Unto the trustees of the First Methodist Church, Hays, Kansas, I give, bequeath and devise the following described real estate situate in Ellis County, Kansas, to be held, used, or disposed of for the benefit of the members of the First Methodist Church, Hays, Kansas, to-wit:

'The North Half (N/2) of Section Thirty-five (35) in Township Fourteen (14), South, Range Twenty (20) West of the 6th P.M.

'Sixth: Unto Bishop Frank A. Thill or his successor as Bishop of the Diocese of Salina, I give, bequeath and devise the following described real estate situate in Ellis County, Kansas, to be held, used, or disposed of for the benefit of the Parish of Saint Joseph's Catholic Church, Hays, Kansas, to-wit:

'The East Half of the Southeast Quarter (SE/4) of Section Twenty-six (26) in Township Fourteen (14) South, Range Twenty (20), West of the 6th P.M.

'Seventh: Unto the Trustees of the First Methodist Church, Hays, Kansas, I give, bequeath and devise the following described real estate situate in Ellis County, Kansas, to be held, used, or disposed of for the benefit of the members of the First Methodist Church, Hays, Kansas, to-wit:

'The West Half of the South East Quarter (SE/4) of Section Twenty-six (26) in Township Fourteen (14) South, Range Twenty (20), West of the 6th P.M.

Eighth: All the rest, residue and remainder of my estate, personal, real or mixed, wheresoever situate, I give, devise and bequeath as follows:

'(a) One Third part thereof to my children, Lisle C. Freshour and Ester Gatewood, share and share alike.

'(b) One third thereof to Bishop Frank A. Thill or his successor as Bishop of the Diocese of Salina, to he held, used, or disposed of for the benefit of the Parish of Saint Joseph's Catholic Church, Hays, Kansas.

'(c) The remaining one third part thereof to the Trustees of the First Methodist Church, Hays, Kansas, to be held, used, or disposed of for the benefit of the members of the First Methodist Church, Hays, Kansas.' (Emphasis added.)

The appraised value of the farm lands devised to the Trustees of the First Methodist Church totaled $36,800, and the farm lands devised to the Bishop of the Diocese of Salina for the Parish of Saint Joseph's Catholic Church were appraised at $20,800.

The heirs of the testator, appellees herein, attacked the trust provisions of the above will in the probate court, contending they were void, by answering the executor's petition for final settlement.

The probate court held valid charitable trusts were created by the provisions of the testator's will and ordered distribution in accordance with the terms of the will. The district court on appeal held the trust provisions created private trusts and as such were against the rule of perpetuities, among other things, and by reason thereof void. It is from the order of the district court that the appellants have taken their appeal to this court.

The parties concede that the testator intended by the controversial provisions of the will heretofore quoted to create trusts. The issue is whether the trusts created were valid charitable trusts or private trusts.

It is not disputed that the Trustees of the First Methodist Church of Hays, Kansas, are the governing body of that church and hold title to all real estate owned by the church; further, that the Bishop of the Diocese of Salina is the proper official to hold real estate title for Saint Joseph's Catholic Church of Hays, Kansas. Bishop Frank A. Thill, named in the testator's will, died on May 21, 1957, after the death of the testator, and this action was revived in the name of his successor, Bishop Frederick William, Freking.

For reasons hereafter stated we think the decision of the probate court was correct.

The trial court found the First Methodist Church of Hays, Kansas, to be a religious corporation, and the Saint...