Jennings v. Jennings
| Decision Date | 03 March 1973 |
| Docket Number | No. 46771,46771 |
| Citation | 507 P.2d 241,211 Kan. 515 |
| Parties | John P. JENNINGS et al., Appellees, v. Mae N. JENNINGS, Appellant, and The National Investment Company, Inc., Defendant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. When an action is submitted to the trial court on pleadings, deposition, and documentary evidence it is the duty of this court on appeal to determine what facts the evidence established, substantially as we would in an original action.
2. A trust arising out of a written agreement is an express trust as distinguished from a trust implied in fact.
3. An express trust implies the cooperation of three persons: (1) A settlor, or a person who creates or establishes a trust; (2) a trustee, or person who takes and holds legal title to the trust property for the benefit of another; and (3) a cestuique trust, or the person for whose benefit a trust is created.
4. An express trust has three requisite features; namely: (1) An explicit declaration and intention to create a trust; (2) the transfer of lawful and definite property made by a person capable of making a transfer thereof; and (3) a requirement to hold as trustee for benefit of a cestui que trust with directions as to the manner in which the trust funds are to be applied.
5. The use of formal and technical language such as 'trustee, trust, or beneficiary,' is not a prerequisite to creation of a trust.
6. The failure to transfer property to a named trustee does not prevent a trust relationship if the transfer places the property under the control of named persons who are determined to be trustees by a reasonable construction of an agreement.
7. An agreement which provides the income of a corporation will be distributed in accord with the ownership of stock as it existed prior to the execution of a trust instrument does not affect the validity of the trust as long as the trustees are charged with additional and binding trust directions.
8. The period of time limited for commencement of an action against a trustee for repudiation of a trust does not begin until the beneficiary has knowledge of the repudiation or is apprised of facts which prudently should put him on inquiry.
9. A trustee who repudiates a trust agreement commits an act which necessarily encompasses fraud. 10. An annual report of a corporation filed with the secretary of state is not constructive notice of its contents to the beneficiary of a trust until a showing is made the beneficiary has some reason to believe the trustee of the stock of the corporation is acting contrary to the trust agreement, disapproving language in Manka v. Martin Metal Mfg. Co., 153 Kan. 811, 113 P.2d 1041.
11. It is the duty of courts to reconcile various provisions of a statute in order to make them consistent, harmonious and sensible if that can be done without doing violence to plain provisions therein contained.
12. K.S.A. 60-513 is construed and it is held: The ten-year limitation period contained therein is not applicable to actions based on fraud.
13. When a statute fixes a limitation period for a claim asserted in a court of law, a court of equity will be analogy follow statutory limits when the claim is raised in an equitable proceeding rather than applying the doctrine of laches.
J. D. Lysaught, of Weeks, Thomas, Lysaught, Bingham & Johnston, Chartered, Kansas City, argued the cause, and David K. Fromme, Kansas City, was with him on the brief for appellant.
John F. Steineger, of Steinger & Reid, Kansas City, and Howard A. Crawford, of Lathrop, Koontz, Righter, Clagett, Parker & Norquist, Kansas City, Mo., argued the cause, and William K. Waugh, III, of Lathrop, Koontz, Righter, Clagett, Parker & Norquist, Kansas City, Mo., was with them on the brief for appellees.
This is an appeal from a summary judgment in favor of plaintiffs. The trial court found an agreement dated July 7, 1943, created a valid and enforceable trust on all the issued and outstanding stock of the National Investment Company and required the defendant, Mae N. Jennings, to transfer and deliver to the plaintiffs, John P. Jennings, Lucile Jennings Gille, and Laura Jennings Houseworth, as trustees, all shares of stock in said corporation in her name individually and as joint tenant with A. H. Jennings, Jr., her deceased husband who had in his lifetime as trustee assigned to her said stock in violation of the terms of the trust. The appeal questions the trial court's construction of the 1943 agreement and the failure of the trial court to find the action was barred by the statute of limitations.
Each member of the family is a party to this action except those shown as deceased in the following diagram of the family tree of the Jennings family:
A. H. Jennings, Sr. _ Laura S. Jennings
(died 1932) (died 1930)
_
Frank H. Jennings A. H. (Harry) Jennings, Jr.
(died 2/19/53) (died 6/12/69)
Lucile Pollock Jennings Mae N. Jennings
Married in 1917 Married June 13, 1946
_
John P. Jennings
Lucile Jennings Gille
On July 7, 1943, A. H. Jennings, Jr., Frank H. Jennings and Lucile Pollock Jennings executed an agreement which in part provided:
'A. H. Jennings, Jr. and Frank H. Jennings are brothers. In 1923 the parties hereto, together with Mary E. Jennings, the wife of A. H. Jennings, Jr., and A. H. Jennings, Sr. and Laura S. Jennings, his wife, and father and mother of A. H. Jennings, Jr. and Frank H. Jennings, organized The National Investment Company, a corporation, which was organized and is existing under and by virtue of the laws of the State of Kansas.
'The corporation was organized principally for the purpose of consolidating and managing real estate then owned by the above named father and sons as individuals, and for the purpose of acquiring, holding and developing additional real estate, and it was the desire and intention of the incorporators that the ownership of the stock of the corporation should, insofar as possible, be and remain in the Jennings family.
* * *
* * *
'At the present time the stock of such corporation is owned as follows:
'A. H. Jennings, Jr., 500 shares (One share of which has been issued to Thomas M. Van Cleave to qualify him as a director of the corporation);
'Frank H. Jennings 467 shares;
'Lucile Pollock Jennings 33 shares.
'The primary reason for the making of this agreement is to carry out the purpose and intent of the incorporators of said corporation that the ownership of the stock of said corporation should remain in members of the Jennings family who are direct blood descendants of A. H. Jennings, Sr. and Laura S. Jennings.
'It is, therefore, agreed by the parties as follows:
'1. Lucile Pollock Jennings hereby agrees to and does endorse and transfer 32 of the 33 shares of stock now owned by her to Frank H. Jennings, her husband, thereby making A. H. Jennings, Jr., and Frank H. Jennings, brothers, equal owners of all the stock of the corporation less two qualifying shares, one of which is outstanding in the name of Thomas M. Van Cleave, and the other being retained by and outstanding in Lucile Pollock Jennings.
* * *
* * *
'3. Should either A. H. Jennings, Jr., or Frank H. Jennings die leaving a widow but no children surviving and be survived by the other, the title to and ownership of all the stock of said corporation owned by the one so dying shall immediately vest in the survivor of them, but the widow of the one so dying shall be entitled to and shall receive so long as she lives and remains unmarried, but no longer, the same amount of annual income from such corporation as the survivor of them, or his heirs, receives and is paid either in the form of salary or dividends.
'4. Should either A. H. Jenmngs, Jr., or Frank H. Jennings die and be survived by a child or children of his own blood and by the other, the title to and ownership of the stock of the corporation of the one so dying shall vest in his child or children. But if the party so dying leave a widow, such child or children shall receive no income from such stock as long as such widow livs and remains unmarried, but such widow during such period shall receive the same amount of annual income as the survivor of them receives from such corporation either in the form of salary or dividends. On the death or remarriage of such widow the child or children owning such stock shall receive and be paid the same annual income as the survivor of A. H. Jennings, Jr. or Frank H. Jennings, but such survivor shall have and keep control and management of such corporation without interference from either the widow or child or children of the one first dying.
'5. Should A. H. Jennings, Jr. or Frank H. Jennings die leaving a child or children of his own blood surviving him, and should the survivor then die without leaving and child or children of his own blood surviving him, the title to and ownership of the stock of said corporation owned by the survivor shall then vest in the child or children of the own who first died, so that such child or children shall then become and be vested with complete ownership of all the stock of such corporation; provided, that if the survivor of them is survived by a widow, such widow shall, so long as she lives and remains unmarried, receive and be paid the same amount of annual income of such corporation as is received and paid to the widow or children of the one who died first. But if such survivor of them is not survived by a widow, or should such widow die or remarry, and the widow of the one who died first be then living and not remarried, then the widow of the one who first died shall, so long as she lives and remains unmarried, receive all the income from such corporation.
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