Johnson County Nat. Bank & Trust Co. v. Bach
| Decision Date | 28 April 1956 |
| Citation | 189 Kan. 291,369 P.2d 231 |
| Parties | The JOHNSON COUNTY NATIONAL BANK AND TRUST COMPANY, as trustee under that certain trust indenture dated |
| Court | Kansas Supreme Court |
Syllabus by the Court
The term 'remarriage' used in a trust indenture, entered into between the parties to a divorce action as the principal consideration of a property settlement agreement and accepted by the wife in lieu of alimony, and providing for reduced income to the wife in the event of her remarriage, is construed and held to require, as a fulfillment of the condition, a marriage giving rise to a valid marriage status, and not a void marriage ceremony (bigamous), subsequently declared void by a decree of annulment, all as more particularly set forth in the opinion.
H. Thomas Payne, Olathe, and George L. Gisler, Kansas City, Mo., argued the cause, Howard E. Payne, W. C. Jones and Robert P. Anderson, Olathe, were with them on the briefs for the appellant.
Alvin D. Shapiro, Kansas City, Mo., argued the cause, John W. Breyfogle, Jr., Olathe, and Dick H. Woods, Kansas City, Mo., were with him on the briefs for appellee, The Johnson County Nat. Bank & Trust Co.
Rice Lardner, Olathe, argued the cause and was on the briefs as guardian ad litem for Barbara Kathryn Bach Taff, Stephen Bach, Thomas Bach, Nancy Lynne Bach, and the unknown heirs and issue, etc., appellees.
This is an appeal from a declaratory judgment entered by the court below construing a trust agreement, wherein the parties to a divorce action made a property settlement which provided for reduced income to the wife upon remarriage, and holding a subsequent bigamous marriage by the wife, later declared void by a decree of annulment, to be a remarriage under the terms of the trust agreement.
The question is whether the wife remarried within the meaning of that term as used in the trust instrument. This depends primarily upon a construction of the agreement; that is, the intention of the parties as expressed therein.
The trust instrument, which is the subject of the declaratory judgment action, was entered into as the principal consideration of a property settlement agreement in a divorce action between Mary Kathryn Bach (defendant-appellant) and George W. Bach (defendant and one of the appellees) as the settlors, in 1956. A divorce was granted to the wife, and she accepted the provisions of the trust in lieu of alimony in the divorce action. Both the husband and the wife contributed jointly to the corpus of the trust estate.
The Johnson County National Bank and Trust Company of Johnson County, Kansas, (plaintiff and one of the appellees) was a party to the agreement as the trustee, and simultaneously with the execution of the agreement certain property, described in the schedule attached thereto, was irrevocably delivered to the trustee, the corpus and all income therefrom to be held, administered and distributed as therein provided.
Among the provisions of the trust, dated April 28, 1956, were the following:
(a) 'The trustee shall pay, at convenient intervals but not less frequently than quarter annually, all of the net income derived from the trust estate to MARY KATHRYN BACH until her death if she does not remarry, or until her remarriage if she should remarry.' (Emphasis added.)
(b) In the event Mrs. Bach remarried the trust was to be divided into shares. She was to continue to receive during her lifetime the income from three-fifths of the trust estate set apart as her share, and the balance of the estate was to be divided into four equal shares for the benefit of the settlors' four children. The trust for each child was to continue until such child became thirty-five years of age.
(c) Upon the death of Mrs. Bach her share, whether three-fifths or the entire corpus, is to be distributed to the four children or their issue.
(d) The trust was so drawn that neither the income nor the corpus of the trust could ever revert to George W. Bach or to his estate.
(e) The trustee is authorized and empowered to invade the corpus of the trust to the extent it deems necessary, if the trustee should conclude that further funds, in addition to the net income derived from the trust, are needed for the comfortable maintenance and support of Mrs. Bach while she is entitled to all of the net income. or for the comfortable maintenance, support or education of the children; provided, however, that the trustee is not authorized to invade the corpus for the benefit of the children without the prior written consent of Mrs. Bach. It further provided that any sums so paid or used should not be deemed advancements upon any payments of income.
The record discloses that George W. Bach has taken care of their four children since the time of the divorce decree, and that the oldest girl is now married, having gone through college. All of the children except one have gone to private high schools.
On July 2, 1958, the appellant (Mrs. Bach) and one Charles Edward Emerson were parties to a marriage ceremony in Cheyenne, Wyoming. Appellant, believing that she was actually married to Emerson, notified the trustee that she had married. Subsequent thereto it was ascertained that Emerson had a wife then living from whom he was not divorced, and that he had no legal capacity to marry the appellant. Upon learning this fact the appellant instituted an annulment action in the Superior Court of the State of Arizona, and on the 28th day of May, 1959, that court entered a decree declaring the purported marriage of July 2, 1958, 'null, void and of no effect whatsoever in law or equity.' It ordered the purported marriage 'annulled, set aside, held at naught, and declared void ab initio.' In its decree the Superior Court of Arizona declared further that the appellant and Charles Edward Emerson were not and never had been husband and wife.
The appellant thereupon notified the trustee of the annulment. In the meantime the trustee had divided the trust estate into shares, but had not then, and has not now, distributed any of the income to the children. The trustee, nevertheless, refused to pay the appellant the entire income from the trust estate. The petition for declaratory judgment was thereafter filed by the appellee trust company to determine the rights of the appellant, the other beneficiaries, and the duties and obligations of the trustee.
(The overall earning power of the trust from January 1, 1958, to the date of the hearing, Sepember 1, 1960, was $12,581.26.)
The trial court held, notwithstanding the annulment of the purported marriage and the lack of capacity of one of the parties to enter into the marriage relationship, the purported marriage constituted a 'remarriage' under the terms of the trust instrument; that the trustee had rightfully divided the corpus of the trust estate; and that the appellants was entitled only to three-fifths of the income from the trust following the void marriage ceremony.
While the trustee does not claim that it has changed its position to its detriment by reason of the purported remarriage, it does contend that the division of the assets in the trust estate was more than a bookkeeping transaction. In making the division the corpus was split into five parts, each of which had a separate account code number; new securities and new certificates were obtained and each of the five shares received separate income tax treatment.
The appellant contends the word 'remarriage' or 'remarry' as used in the trust instrument can only mean another marriage; that is, a new status acquired as the result of a contract. Such status, it is urged, can be acquired only through a legally valid contract. Here, it is said, no such status was acquired because the contract was legally void--one of the parties lacking capacity to marry, and the absolute prohibition of the law against such bigamous marriage. It is argued that it would be inconceivable that the appellant, as one of the settlors of the trust, intended that her right to income from the trust would be diminished by a marriage ceremony not only declared void in the eyes of the law, but to which criminal penalties would attach had it not been for her lack of knowledge that Emerson had a wife from whom he had not been divorced.
We note the situation presented by the instant case is unlike any of the cases to which we have been cited by either of the parties. Here the sole provision for the support of the wife was income from a trust estate irrevocably established--a trust estate to which the wife had made a substantial contribution of her own property. Clearly, there is no manifestation by the trust instrument, or the conduct of the parties, that any attempt was being made by the settlors to bargain away the duty of the father to provide for the support of their four children.
The interest of the children in any income from the trust estate during the life of the appellant is wholly contingent upon the happening of a specified event. As to this right the children are contingent donee beneficiaries. This interest in the trust is to be distinguished from the remainder over to the children after the death of the appellant.
Under Kansas law a marriage where one of the parties at the time has a husband or wife living is void, absolutely and in all its aspects. It requires no judgment of divorce or of nullity to render it void. It is void inherently and from the beginning. The innocent party may, however, maintain an action in equity to have such colorable marriage...
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Peters v. Peters, 55911
...agreement or decree is involved by ascertaining the intention of the parties and the court. See, e.g., Johnson County Nat. Bank & Trust Co. v. Bach, 189 Kan. 291, 369 P.2d 231 (1962); Cecil v. Cecil, 11 Utah 2d 155, 356 P.2d 279 (1960); cf. Dodd v. Dodd, 210 Kan. 50, 499 P.2d 518 We adopted......
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...the marriage relation void ab initio, or from the beginning. 240 Kan. at 189, 726 P.2d 1344 (quoting Johnson County National Bank & Trust Co. v. Bach , 189 Kan. 291, 296, 369 P.2d 231 [1962] ). The judgment of annulment gives the voidable marriage the same effect as a void marriage. Even th......
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...177, 236 N.E.2d 199 (1968). Contra, DeWall v. Rhoderick, 258 Iowa 433, 138 N.W.2d 124 (1965); Cf. Johnson County National Bank & Trust Co. v. Bach, 189 Kan. 291, 369 P.2d 231 (1962). But the plaintiff has called to our attention to case since the overruled decision in Sleicher, which holds ......
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Joye v. Yon, 3335.
...enter into the status of matrimony." Broadus v. Broadus, 361 So.2d 582, 585 (Ala.Civ.App.1978); Johnson County Nat'l Bank & Trust Co. v. Bach, 189 Kan. 291, 369 P.2d 231, 237 (1962). Thus, the supported spouse must legally enter into another marriage before she may be deemed remarried. See ......
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