In re Smith's Estate

• Decision Date: 07 December 1946
• Docket Number: 36680.
• Parties: In re SMITH'S ESTATE. v. ALUMNI ASS'N OF THE KANSAS STATE AGRICULTURAL COLLEGE et al. DRESSLER et al.
• Court: Kansas Supreme Court

174 P.2d 1012

162 Kan. 215

In re SMITH'S ESTATE.

DRESSLER et al. v. ALUMNI ASS'N OF THE KANSAS STATE AGRICULTURAL COLLEGE et al.

No. 36680.

Supreme Court of Kansas

December 7, 1946

Appeal from District Court, Rice County; Robert Garvin, Judge.

Proceeding in the matter of the Estate of Maggie Z. Smith, deceased wherein Sam Dral, executor of the estate of Maggie Z. Smith deceased, filed a supplementary report in which he asked the Probate Court to determine effects of a contract he had discovered among the papers of deceased. On motion of an interested party the matter was transferred to the District Court. In that court the Alumni Association of the Kansas State College, of Manhattan, Kansas, filed what amounted to a petition for specific performance of the contract, and issues were joined by the answer of Claude Dressler and others, some of the legatees and devisees named in will of Maggie Z Smith, deceased. From a decree directing specific performance, Claude Dressler and others appeal.

Reversed with directions.

Syllabus by the Court

1. In an action for specific performance of a contract to convey real estate, the contract is examined and it is held to be testamentary in character.

2. Under circumstances such as those described in paragraph one of this syllabus, the contract was not drawn in conformity with the statutes relating to wills, and will not be enforced after the death of the grantor.

3. Under circumstances such as those described in paragraph one of this syllabus, where grantors in the contract deposited deeds to the land in question with an escrow holder, and retained control over them, and had a right to withdraw them any time before the death of grantor, held, these deeds did not pass any interest in the real estate.

Donald C. Martindell, of Hutchinson, (William D. P. Carey, Wesley E. Brown, Edwin B. Brabets, and Lee Hornbaker, all of Hutchinson, and Bronce Jackson, of Lyons, on the brief), for appellants.

L. E. Quinlan, of Lyons, and Hal E. Harlan, of Manhattan, A. M. Johnston, of Manhattan, on the brief), for appellee Alumni Association of the Kansas State Agricultural College.

No appearance made for appellee Sam Deal, executor.

SMITH Justice.

This action originated in the probate court when the executor of an estate filed a supplementary report in which he asked the probate court to determine the effect of a contract he had discovered amongst the papers of Maggie Z. Smith, deceased. On motion of an interested party the matter was transferred to the district court. In that court the Alumni Association of The Kansas State College, of Manhattan, Kan., filed what amounted to a petition for specific performance of the contract. Issues were joined by the answer of some of the legatees and devisees of Maggie's will, the cause tried and judgment entered decreeing specific performance as prayed for by the association. The legatees and devisees have appealed.

The essential facts are admitted. Maggie Z. Smith was the only child of Caleb R. Davis and Mrs. Davis, pioneer citizens of Rice county. She was their only heir and inherited the land in question from them. She was the wife of John S. Smith, who died in 1934. She died July 3, 1945. She and her husband had no children.

On January 10, 1929, Maggie and her husband entered into the contract with the Alumni Association, which is the subject of this action. That contract provided in the first paragraph as follows:

'In consideration of the stipulation and agreements hereinafter enumerated to be performed by the party of the second part, the parties of the first part agree to give to the party of the second part such property and (or) such sums of money as they shall see fit at such times as they shall see fit including the following described real estate in Rice County, Kansas, to wit:'

After a description of the real estate the contract provided as follows:

'* * * deeds to which have been executed in favor of said party of the second part and placed in escrow with the Citizens State Bank of Little River, Kansas, said deeds to be delivered to the duly elected and qualified president of the said Alumni Association of the Kansas State Agricultural College by said bank immediately upon the death of Maggie Z. Smith, one of the parties of the first part, provided that the parties of the first part or either of them shall have the right to withdraw said deed or deeds from escrow at any time that they may see fit during the lifetime of said Maggie Z. Smith, and said Citizens State Bank is hereby instructed to deliver said deed or deeds to Maggie Z. Smith in the event that at any time she may demand it.

'The party of the second part hereby agrees that such sums of money and the proceeds from the sale of such property as may be transferred to it by the parties of the first part shall be managed, loaned and expended in its discretion to aid worthy students in obtaining education at the Kansas State Agricultural College.

'The party of the second part further agrees that, for the aforementioned purpose, it will organize and maintain, in such form as to it in the exercise of its discretion may seem from time to time necessary or desirable, an organization to be known and administered as and in the name of the C. R. Davis Memorial Fund.'

The deeds to which reference is made in the above-mentioned contract were found after Maggie's death in the hands of an officer of the bank named as escrow holder. These deeds, three in number, were in an envelope along with the contract. They were duly executed by Maggie and her husband, but the name of the grantee was not written in at the place provided. The record discloses that sometime subsequent to the execution of the contract and deeds Maggie sold and gave a warranty deed to eighty acres of the real estate in question. No question is raised about her right to do this. Only 580 acres are involved here.

Maggie died testate. She made her will on January 20, 1938, subsequent to the execution of the contract and deeds, to which reference has been made. Besides some specific bequests she provided that the residue should go to eleven named persons. Appellants are those persons. The land with which we are concerned was not mentioned in this will. There is no dispute about the above facts.

In the district court the alumni association filed a petition. It alleged that Maggie inherited the property from her father, a pioneer farmer, and that prior to January 16, 1929, Maggie and her husband had planned to establish an endowment fund in memory of Maggie's father; that shortly before that date they called the officers of the association to their house and told them they desired to establish such a fund and they would establish it provided the association would create and maintain it in the name of 'The C. R. Davis Memorial Fund;' that all parties did enter into the contract already mentioned; that on the date the contract was executed Maggie and her husband performed it by executing warranty deeds to the land in question with the petitioner named as grantee and placing them in a bank with instructions to comply with the contract; that as provided in the contract Maggie did remove from the bank one deed covering a described eighty acres and selected the property contracted to be conveyed by leaving the remaining deeds in the bank; that in compliance with the terms of the contract petitioner had made the necessary preparations and was ready, willing and able to perform all the conditions of the contract.

The petition prayed for specific performance of the contract and that the association be adjudged to be the absolute owner in fee simple of the land and that the escrow holder be ordered to forthwith deliver to petitioner all the deeds.

The legatees and devisees named in the will filed a motion for judgment on the pleadings in which they set out various legal reasons why the petitioner should not have the relief asked. This motion was denied.

The devisees then filed an answer. In this answer they admitted that Maggie and her husband made the contract and signed the deeds; that they owned the land and that subsequent to the execution of the deeds and contract Maggie had conveyed eighty acres of the land to a third party.

They denied that either Maggie or her husband had performed the contract, or had contracted by the terms to convey any land to the association or that they ever made any selection of property or that Maggie ever removed any deed from the escrow holder. They also denied that the association had authority under its charter to enter into such a contract.

The answer then alleged that the contract showed on its face that the association had no interest in the property; the instrument contained no words of conveyance; there was no delivery of the deeds and the grantors retained full control over them until the death of Maggie; that from the time of their signature until the day of Maggie's death, Maggie or her husband retained full control over the property described in them by way of executing oil leases and...