Ghormley v. Kleeden

Decision Date11 April 1942
Docket Number35526.
Citation155 Kan. 319,124 P.2d 467
PartiesGHORMLEY et al. v. KLEEDEN et al.
CourtKansas Supreme Court

Syllabus by the Court.

In determining interests of testator's children under will testator's intention would control.

Testator's intention is to be ascertained by reading will as an entirety.

A vested remainder may be subject to complete defeasance.

If conditional element is incorporated into description of gift to remainderman, then the remainder is a "contingent remainder"; but if, after words giving a vested interest, a clause is added divesting it, the remainder is a "vested remainder".

A title need not be bad in fact to be a "nonmerchantable title" or "unmarketable title", but it is sufficient to render it so if an ordinarily prudent man with knowledge of the facts and aware of legal questions involved would not accept it in ordinary course of business.

Where will devised realty to testator's wife for life, with remainder at wife's death to testator's six children and contained further provisions for disposition of share of any of children in event they should die before wife remainder to children was a "vested remainder" but liable to be divested, and, hence, title tendered by widow and children pursuant to contract to execute oil and gas leases was an "unmarketable title" and would not support an action for specific performance of the contract.

1. In an action for the specific performance of a contract to execute oil and gas leases, the record is examined and held that under the will set forth in the opinion the plaintiffs did not acquire an indefeasible estate in fee simple in the premises and therefore the title tendered by lessors to the lessee was not a marketable title.

2. A title need not be bad in fact in order to be nonmerchantable or unmarketable. It is sufficient to render it so if an ordinarily prudent man with knowledge of the facts and aware of the legal questions involved would not accept it in the ordinary course of business.

Appeal from District Court, Reno County; Franklin B. Hettinger, Judge.

Action by John Ray Ghormley and others against Mark Kleeden and others, for specific performance of a contract to execute oil and gas leases. From a judgment for plaintiff, the defendants appeal.

Reversed and remanded with directions.

Walter F. Jones, Harold R. Branine, C. E. Chalfant, and J. Richards Hunter, all of Hutchinson, for appellants.

Charles M. Williams, Donald C. Martindell, W. D. P. Carey, Wesley E. Brown, and Edwin B. Brabets, all of Hutchinson, for appellees.

ALLEN Justice.

On May 8, 1941, the plaintiffs agreed to execute four oil and gas leases on 320 acres of land in Reno county, to the defendant Mark Kleeden. The leases were to be executed and placed in escrow to be delivered to Kleeden when contracts for drilling on the land had been procured by Kleeden. The defendant Kleeden agreed to accept the leases and to drill a test well when he was furnished an abstract showing plaintiffs had a good and merchantable title to the land. Defendant Kleeden declined to accept the leases tendered by plaintiffs on the ground the plaintiffs did not have a good merchantable title. Thereupon the plaintiffs filed the present action praying for specific performance of the contract. This appeal is from a judgment for plaintiffs.

The plaintiffs claim under the will of William Ray Ghormley who died March 7, 1909. The will provided:

"Second: I give, devise and bequeath unto my beloved wife, Sarah H. Ghormley, to have and to hold during the term of her natural life and enjoy the use, rents and profits thereof, the following described real estate, lying and situate in the County of Reno, in the State of Kansas, to-wit: (description of land) and it is my will that at the death of my said wife the above described real estate shall go to and become the property of my beloved children, viz: Carrie Jane Flagg, nee Ghormley, my daughter; my son, D. W. Ghormley; my daughter, Hattie E. Hamilton, nee Ghormley; my son, Charles E. Ghormley; my daughter, Jessie Pearl Murphy, nee Ghormley; and my son, John Ray Ghormley, share and share alike.
"And should I survive my said wife, then at my death the above described real estate shall go to my said children, share and share alike.
"Should any of my said children die before the deceased of my said wife, then at her death, the share which would have gone to such deceased child, shall go to the children of such deceased child and if there are no children and the deceased child leave a wife or husband then one half of such share shall go to said surviving wife or husband, and the other half to the brothers and sisters of such deceased child share and share alike. And should I survive my said wife, then at my death, if any of my children shall have died leaving children, then the children of such deceased child shall take such deceased child's share, share and share alike; and should such deceased child die leaving no children but leaving a wife or husband, such wife or husband shall take one half of said deceased child's share and the other half thereof shall go to the brothers and sisters of such deceased child, share and share alike; and in case any of my said children shall die before the decease of my said wife or prior to my decease and leave no wife or husband or children, then the entire share of such deceased child shall go to the surviving brothers and sisters of such deceased child."

At his death the testator left surviving his widow Sarah H. Ghormley and his six children mentioned in his will. They are the plaintiffs in this action.

Plaintiffs contend the remainder to the children was indefeasibly vested, and therefore the lease executed by the widow and the children would pass a merchantable title. Plaintiffs cite and rely on Bunting v. Speek, 41 Kan. 424, 21 P. 288, 3 L.R.A. 690; McLean v. Stanley, 134 Kan. 234, 5 P.2d 839; Stevenson v. Stevenson, 102 Kan. 80, 169 P. 552; Anderson v. Wise, 144 Kan. 612, 62 P.2d 805; and Faris v. Nickel, 152 Kan. 652, 107 P.2d 721.

On behalf of defendant Kleeden it is asserted that the interest owned by the children "is a contingent interest, or at best a vested interest subject to divestiture-- which in either event makes the title offered by appellees unmarketable." In support of these contentions our attention is directed to Williams v. Bricker, 83 Kan. 53, 109 P. 998, 30 L.R.A.,N.S., 343; Bullock v Wiltberger, 92 Kan. 900, 142 P. 950; Purl v. Purl, 108...

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7 cases
  • Central Carolina Bank & Trust Co. v. Bass, 768
    • United States
    • North Carolina Supreme Court
    • August 27, 1965
    ...Ill. 442, 6 N.E. 504; Pointer v. Lucas, 131 Ind.App. 10, 169 N.E.2d 196; Heilman v. Heilman, 129 Ind. 59, 28 N.E. 310; Ghormley v. Kleeden, 155 Kan. 319, 124 P.2d 467; Abbott v. Danforth, 135 Me. 172, 192 A. 544; Roberts v. Roberts, 102 Md. 131, 62 A. 161, 1 L.R.A. (N.S.) 782; Robertson v. ......
  • In re Will of Keys
    • United States
    • Kansas Court of Appeals
    • October 3, 2008
    ...Rosebud had a contrary intent. While it is true that "a vested remainder may be subject to complete defeasance," Ghormley v. Kleeden, 155 Kan. 319, 321-22, 124 P.2d 467 (1942), nothing in the Will suggests that the interests of the remainder beneficiaries were defeasible after termination o......
  • Darby v. Keeran
    • United States
    • Kansas Supreme Court
    • January 20, 1973
    ...was later approved in Ayers v. Graff, 153 Kan. 209, 109 P.2d 202; Barrett v. McMannis, 153 Kan. 420, 110 P.2d 774; and Ghormley v. Kleeden, 155 Kan. 319, 124 P.2d 467. We view the title requirements made by the plaintiffs' attorney as being reasonable and legally justified. The federal tax ......
  • Singleton v. Gordon, 2254
    • United States
    • Wyoming Supreme Court
    • December 21, 1943
    ... ... 489, 6 N.W.2d 788; Bailey v ... Stedronsky, 57 Ohio App. 265, 13 N.E.2d 588; ... Blanchard v. Blanchard, 83 Mass. 223; Ghormley ... v. Kleeden, 155 Kan. 319, 124 P.2d 467; 26 C. J. S. [60 ... Wyo. 35] 407. The interest of the surviving heirs was ... contingent depending on ... ...
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