Harvey v. Harvey

• Court: Kansas Supreme Court
• Writing for the Court: PRAGER; FATZER
• Citation: Harvey v. Harvey, 524 P.2d 1187, 215 Kan. 472 (Kan. 1974)
• Decision Date: 17 July 1974
• Docket Number: No. 47400,47400
• Parties: Verl HARVEY, Appellant, v. Bob HARVEY et al., Defendants, and Cheri L. Richards et al., Appellees.

Page 1187

524 P.2d 1187

215 Kan. 472

Verl HARVEY, Appellant, v. Bob HARVEY et al., Defendants and Cheri L. Richards et al., Appellees.

No. 47400.

Supreme Court of Kansas.

July 17, 1974.

Syllabus by the Court

1. Where an issue involving the validity of certain provisions of a will is not raised and determined in the probate court during the administration of the estate, the issue may be determined later in a declaratory judgment action in the district court after the estate has been closed. Such an issue does not become res judicata solely by reason of the entry of a judgment of final settlement in probate court.

2. The rule against restraints on alienation is a distinct and separate rule of property law which is to be distinguished from the rule against perpetuities. Although both rules have the same fundamental purpose of keeping property freely alienable, the rule again perpetuities is concerned solely with the vesting of future interests in property.

3. Where one provision of a will is invalid because it violates the rule against restraints on alienation, and the testamentary scheme of the testatrix can be determined and carried out regardless of the void provision, that provision will be stricken out and the testamentary plan given effect.

John D. Clark, of Alkire, Clausing, Coldsnow & Wilkinson, Wichita, argued the cause, and was on the brief for appellant.

Donald L. Martin, of Flood, Martin, Coffelt & Flood, Ellis, and William Wagner, of Deines & Wagner, WaKeeney, argued the cause, and Ernest J. Deines, of Deines & Wagner, WaKeeney, was with them on the briefs for appellees.

PRAGER, Justice:

This is an action for a declaratory judgment in which the plaintiff-appellant, Verl Harvey, seeks to have certain portions of his mother's will declared to be invalid. The facts have been stipulated and essentially are as follows: Lulu Harvey, the testatrix, died on August 4, 1956. She was survived by five children and fifteen grandchildren. Since her death several additional grandchildren have been born. Lulu Harvey's will was admitted to probate in the probate court of Trego county on September 14, 1956. A judgment of final settlement was entered in the estate on April 1, 1958. It is clear from the record that the issues raised in this declaratory judgment action were not raised and determined by the probate court.

The portions of the will which are in controversy here involve five separate devised to one of Mrs. Harvey's five children devised to one of Mrs. Harvey's five children for life with a remainder interest to those children of the life tenant who are living at the time of the life tenant's death. These specific devises were designated in the will as Items 1, 2, 3, 4 and 5. In Item 6 of the will Mrs. Harvey devised all of the rest, residue and remainder of her property to her five children, John Harvey, Verl Harvey, Bob Harvey, Betty Lou Peavler and Juanita Dodson share and share alike. In Item 7 of the will the testatrix appointed her son, John Harvey, as executor.

At the outset we should examine the specific provisions of the will which are in contest. They are Items 1, 2, 3, 4 and 5. The language used in each of the five items is essentially the same. Since the appellant, Verl Harvey, is concerned primarily with Item 2 of the will, we will examine that provisions without setting forth in full the other items mentioned. Item 2 of Lulu Harvey's will provides as follows:

'ITEM 2: I hereby give and devise the North Half (N/2) of Section ten (10), Township four (4) south, Range sixty-two (62) west of the sixth principal meridian in Arapahoe County, Colorado, to my son, Verl Harvey, for the term of his natural life. This devise is made voluntarily for the use and benefit of the said Verl Harvey and no one else, and it is made upon the express condition that the same shall not be subject to attachment, execution, garnishment or any other legal process, or voluntary sale, mortgage or alienation or disposal of any kind, and if he shall attempt to mortgage, sell, alienate or otherwise dispose of the same, or if any creditor shall attempt in violation of this provision of my will to subject such property to the payment of any of his debts or obligations, then the property to devised in this paragraph of my last will and testament shall immediately become null and void and such property shall thereupon pass to and become the property of the children of the said Verl Harvey then living, provided, However, that no such child shall then mortgage or sell his or her interest in said real property prior to attaining the age of 25 years; in the event any such child shall violate this provision against alienation then immediately upon such violation his or her interest in and to such property shall immediately pass to and become the property of the remaining children then living of the said Verl Harvey, share and share alike in fee simple.

'Upon the death of my son Verl Harvey still owning the life estate devised to him in the paragraph immediately preceding in Item 2 of my last will and testament, then upon the death of my son Verl Harvey said real estate shall go to and become the property of the children of Verl Harvey who are living at the time of his death provided however, that no such child shall mortgage or sell, or attempt to mortgage of sell his or her interest in said real property prior to attaining the age of 25 years; in the event any such child shall violate this provision against alienation then immediately upon such violation his or her interest in and to such property shall immediately pass to and become the property of the remaining children then living of the said Verl Harvey, share and share alike.' (Emphasis supplied.)

The controversy here is between Verl Harvey, Lulu's son, on the one hand and his brothers and sisters and all of Lulu Harvey's grandchildren on the other. In his petition and throughout the proceedings it has been the position of the plaintiff-appellant, Verl Harvey, that Items 1 through 5 of Lulu Harvey's will are invalid because each of them violates the rule against perpetuities and the rule against unlawful restraints against alienation. Verl Harvey maintains that Items 1 through 5 are void in their entirely and therefore the real estate devised under each of the items falls into the residual estate and passes under the residuary clause of the will to the five children of Lulu Harvey in fee simple share and share alike as provided under Item 6 of the will.

The case was presented on the stipulated facts to the trial court who made the following findings of fact and conclusions of law:

'No. 1

'The written stipulations signed and filed by counsel are accepted as findings of the court.

'No. 2

'The order of final settlement in the Probate Court of Trego County, Kansas, in the estate of Lulu Harvey, deceased, dated April 1, 1958, did not interpret the will of the decedent.

'No. 3

'The provisions in Items 1, 2, 3, 4, and 5 of said will restraining alienation of real estate to be held by the contingent class of remaindermen (living children of life tenant at death of life tenant) until such remaindermen reach the age of 25, violate the rule against perpetuities as an illegal restraint on alienation because at the time of the life tenant's death, the remainder interest would vest, but the power to alienate possibly could not vest during a life in being (that of the life tenant) plus 21 years.

'No. 4

'Stated another way, under the terms of the will the remainder interests in fee simple would vest at death of the respective life tenants, but the will added provisions against alienation of the remainder interests which extended beyond 21 years after the death of the life tenant, the life in being at the time of the testator's death, thus violating the common law rule against alienation. This common law rule against alienation is related to and part of the rule against perpetuities. Such provisions of the will restraining alienation are illegal and void and against public policy.

'No. 5

'Without such illegal restraint on alienation the devise to the contingent remaindermen in Items 1, 2, 3, 4, and 5 of the will would be complete and valid and would not violate the rule against perpetuities. The devises are expressly in fee simple. The illegal restraint on alienation is against public policy and should be declared void. The desire of the testator in expressly making the devices to such remaindermen in fee simple should be carried out, but the provisions for illegal restraint on alienation and which are also inconsistent with fee simple title should be excised from the will as void.

'No. 6

'After the excising of such illegal provisions in the will, Items 1, 2, 3, 4, and 5 are valid.

'No. 7

'Judgment should be entered on all the foregoing findings and all should be made part of the Court's judgment.

'Judgment is so entered. All restraints on alienation of property to be held by remaindermen as set out it Items 1, 2, 3, 4, and 5 of the will of Lulu Harvey, deceased, are ordered excised, and with such excising, what remains of such Items 1, 2, 3, 4, and 5 are adjudged valid. Costs are taxed to the plaintiff.'

On September 11, 1973, the district court entered judgment on its findings of fact and conclusions of law. In essence the district court found that there was an illegal restraint on alienation under each of the five items and that such invalid restraint on alienation should be excised under each of the five provisions. After excising the invalid provisions restricting alienation, the trial court held the remainder of the will valid. On September 19, 1973, the plaintiff filed a motion to amend the rulings and judgment of the court. The plaintiff, Verl Harvey, did not question that portion of the judgment of the trial court which found that the restraints on alienation were unreasonable and therefore invalid. He urged that the court should have nullified Items 1 through...