In re Porter's Estate

• Decision Date: 06 December 1947
• Docket Number: 36943.
• Citation: 164 Kan. 92,187 P.2d 520
• Parties: In re PORTER'S ESTATE. v. JOHNSON. HARKRADER
• Court: Kansas Supreme Court

187 P.2d 520

164 Kan. 92

In re PORTER'S ESTATE.

HARKRADER v. JOHNSON.

No. 36943.

Supreme Court of Kansas

December 6, 1947

Appeal from District Court, Pratt County; Clark A. Wallace, Judge.

Appeal from District Court, Pratt County; Clark A. Wallace, Judge.

Proceeding in the matter of the estate of Laura E. Porter, deceased. From an order of the probate court admitting the will of deceased to probate, Elsie Sherwood Johnson appealed to the district court. The appeal was opposed by W. F. Harkrader executor. The district court admitted the will to probate and Elsie Sherwood Johnson appeals.

Syllabus by the Court.

1. One who, by the will of a testatrix, is made a trustee of the major portion of her estate and whose only personal pecuniary interest therein is possible compensation for services rendered in his fiduciary capacity is not the 'principal beneficiary' in the will, within the meaning of that term as found in G. S. 1945 Supp. 59-605.

2. The use of the word 'deserving' in the designation of beneficiaries as a class when employed by a testatrix in an attempt to create a public charitable trust does not result in such an indefiniteness and uncertainty of beneficiaries as to defeat the trust.

3. In the absence of other provisions resulting in its nullification, a will devising property to trustees for the creation of The Laura E. Porter Educational Fund to be used to aid deserving men students graduating from a designated school in the completion of their education at some University to be designated by such trustees, creates a valid public charitable trust.

4. The new Kansas Probate Code, Chapter 59, Article 2, 1945 Supp not only specifically confers jurisdiction upon the probate courts to administer trusts but makes ample provision for their supervision, direction and control.

5. The fact a will creating a charitable trust contains provisions excusing the trustees from giving bond, from accounting to any person, corporation or court and confirms any distribution made by the trustees under and by virtue of the trust agreement does not make such will void on the ground it ousts all courts from jurisdiction over the trust estate and therefore violates public policy for the reason, that notwithstanding the power and discretion so granted by the testatrix, the trustees are subject to the direction and control of the probate court having authority to admit the will to probate and, under the provisions of the probate code, that tribunal has full power to prevent mismanagement of the estate and correct any abuses of the trust.

6. In construing a will courts must (a) arrive at the intention of the testator from an examination of the whole instrument, if consistent with rules of law, giving every single provision thereof a practicable operative effect, (b) uphold it if possible, (c) avoid any interpretation resulting in intestacy when possible, (d) give supreme importance to the intention of the testator and, (e) when the language found in such instrument is clearly and unequivocally expressed determine the intent and purpose of the testator without resort to rules of judicial construction applicable to the interpretation of an instrument which is uncertain, indefinite and ambiguous in its terms.

7. Charitable trusts are favorites of the law, they must be upheld whenever possible and, once it has been determined that the provisions of a will create a trust estate those provisions, and others to be found in the instrument, must be liberally construed for the purpose of carrying out the intention of the donor.

8. The provisions of a will such as is described in paragraphs 3 and 5 of this syllabus examined, and held, the words 'The foregoing provisions shall be construed as expressing only my wishes and desires in the matter and not as a condition or limitation which might affect the validity of the bequest,' to be found therein, do not nullify or destroy the charitable trust created by other provisions of such will.

A. L. Moffat, of Kinsley (William B. Hess, of Pratt, of the brief), for appellant.

B. V. Hampton, of Pratt (R. F. Crick, of Pratt, on the brief), for appellee.

PARKER Justice.

This is a case wherein the probate court, and later on appeal the district court, of Pratt county admitted a will to probate in its entirety. The appeal challenges the action of the district court in holding that paragraph 8 of the will created a valid and definite trust which was entitled to probate as a part of such instrument.

The facts are not in dispute and those essential to a proper understanding of the issues can be briefly stated.

Laura E. Porter, a resident of Pratt county, died testate on the 21st day of December, 1945. Thereafter, her will was presented for, and in due time admitted to, probate by the probate court, without contest. Elsie Sherwood Johnson, a niece and devisee, then appealed to the district court from the order probating the will. There she filed an answer wherein she objected to the probate of paragraph 8 of such instrument, charging that its provisions were wholly insufficient to create a legal public charitable trust and claiming that on that account and for sundry other reasons the devise contemplated by its terms was void. The trial court rejected all claims of invalidity as made and admitted the will to probate in toto. This appeal followed.

Paragraph 8, which is the only portion of the will in controversy, reads:

'All the rest and residue of my estate, whether real, personal or mixed, I give, devise and bequeath, except such as is specifically disposed of by this will or any codicil, unto W. F. Harkrader, B. V. Hampton and J. R. Campbell, of Pratt, Kansas, as joint trustees, to be held in trust for the purposes hereinafter stated.

'The title, possession and control of all the resit and residue of my estate shall be vested in my said trustees and said trustees shall have power, if they deem it advisable, and are hereby authorized to sell, assign, mortgage and convey the said properties, either together or in parcels, at private sale or public auction, upon such terms and conditions as they, the trustees, shall think fit; to collect all accounts and debts to my estate and to issue and deliver valid receipts therefore; to execute and deliver agricultural or gas, oil and mineral leases on any or all lands belonging to my trust estate; to sell and convey any real estate or any interest therein including short term royalties and to execute, issue and deliver all necessary and proper deeds, assurances and instruments as may be necessary and required to accomplish the above stated purposes. Said property heretofore stated are to be held in trust for the creation of a fund to be known as 'The Laura E. Porter Educational Fund'. This fund is to be used to aid deserving men students graduating from the Pratt Junior College, either by gifts or loans, to complete their education at some University which is approved by my trustees. This fund, or any part thereof, may be invested and the income used as gift scholarships; or bother (sic) principal and interest may form a loan or gift fund; the fund to be used for the stated purpose in either way, under the prevailing conditions, which may be deemed by the trustees of the Educational Fund to be most beneficial and wise. If the Pratt Junior College should cease to exist, this aid shall be given to young men graduating from the Pratt High School. The foregoing provisions shall be construed as expressing only my wishes and desires in the matter and not as a condition or limitation which might affect the validity of the bequest.

'It is my further desire that the trustees W. F. Harkrader, B. V. Hampton, and J. R. Campbell, not be required to give bond for the faithful execution of this trust and that their acts in administering the trust shall not be accountable to any person or corporation or to any Court and I do hereby confirm any distribution that said trustees make under and by virtue of this trust agreement.

'My said trustees are expected to handle this estate as in their judgment will be to the best interest and advantage of this trust and the beneficiaries selected. Should any of my said trustees die or become otherwise disable or disqualified to acet (sic) in this capacity, before this trust shall be completed, then the surviving trustees shall immediately select a suitable successor-in-trust to replace the one so deceased or disqualified, and my successor-in-trust so selected shall have the same power and authority as my said original trustees.'

It is conceded by all parties that the principal issues raised by the appeal involve the validity of the trust attempted to be created by the provisions of the paragraph heretofore quoted. In fact appellant states the only questions involved are: 1. Whether the testatrix in such paragraph created a mandatory or nonmandatory public charitable trust and 2, whether because of certain provisions thereof the devise was void. From an examination of appellant's brief it is apparent she places more reliance upon the first question than she does on the second. For that reason we shall treat contentions advanced in support of her second question before making disposition of the principal issue.

The first ground relied on for reversal of the trial court's judgment, to which we shall give attention, is that B. V. Hampton, conceded under the evidence to have prepared the will and to have been the legal adviser of the testatrix on the date of its execution, was its principal beneficiary and that therefore paragraph 8 was void by virtue of the provisions of G.S.1945 Supp. 59-605. Conceding, that unless it affirmatively appears a testator had read or knew the contents of his will and had independent...