Johnson v. Muller

• Court: Kansas Supreme Court
• Writing for the Court: THIELE, Justice.
• Citation: Johnson v. Muller, 149 Kan. 128, 86 P.2d 569 (Kan. 1939)
• Decision Date: 28 January 1939
• Docket Number: 34076.
• Parties: JOHNSON v. MULLER et al. [*]

86 P.2d 569

149 Kan. 128

JOHNSON v. MULLER et al. ^[*]

No. 34076.

Supreme Court of Kansas

January 28, 1939

Syllabus by the Court.

Where there is no ambiguity or uncertainty in the language of a will, there is no necessity for construction, and will should be enforced in accordance with its provisions.

Where construction of will is necessary, testator's intention must be gathered from all portions of the instrument and must prevail if consistent with rules of law.

To ascertain testator's intention and the extent and character of the bequests and devises, all provisions of will must be read and construed together, and one provision must not be given controlling significance by ignoring other provisions.

The rule that an unqualified and unlimited gift of the rents income or profits of realty is a gift of the land itself was rebutted in will devising income to testator's wife, by other provisions limiting the time to wife's life.

Where will provided that if there were certain failures of heirship, the shares involved should "revert to the residue of my estate," and another clause made a specific devise of the residue, the provisions were not void as against contention that the estate was not an entity which could take under the will.

Where testator named trustees and clearly prescribed powers and duties which made the taking of an estate necessary, without making a specific devise to trustees, an estate vested in trustees by implication.

The rule that the same person cannot be at the same time sole trustee and sole beneficiary, and that trust cannot exist where legal and beneficial interests are in the same person was inapplicable where several beneficiaries of testamentary trust were also the trustees, but their interests were not common to each other, each trustee was to look after interests of all beneficiaries, and there was specific provision for succession of trustees.

Life tenants could not maintain partition action against remaindermen.

1. Where construction of a will is necessary, the intention of the testator must be gathered from all portions of the instrument, and that intention must prevail if it is consistent with the rules of law.

2. To ascertain the intention of the testator and the extent and character of the bequests and devises of his will, all provisions of the will must be read and construed together and one provision must not be given controlling significance by ignoring other provisions of the will.

3. The rule that an unqualified and unlimited gift of the rents, income or profits of real estate is a gift of the land itself, is one of construction which may be rebutted by any clear expression in the will to the contrary.

4. Although there be no express devise to a person named as trustee, if it clearly appears from the nature of the duties to be performed that the taking of an estate is necessary, the intention of the testator will be presumed and an estate in the trustee will vest by implication.

5. The rule that the same person cannot be at the same time sole trustee and sole beneficiary of the same identical interest, and that a trust cannot exist where the legal and beneficial interests are in the same person, does not apply to a situation where several beneficiaries of a trust, whose interests therein are not common to each other, are also the trustees.

6. Following Love v. Blauw, 61 Kan. 496, 59 P. 1059, 48 L.R.A. 257, 78 Am.St. Rep. 334 and Bartram v. Kemp, 113 Kan. 246, 214 P. 96, it is held that holders only of life estates in real estate may not maintain an action in partition against the remaindermen.

Appeal from District Court, Saline County; Roy A. Smith, Judge.

Action by Leon Carl Johnson against Edith Celestine Muller, Leroy C. Muller and others, for construction of will and partition. From an adverse judgment, plaintiff and others appeal.

David Ritchie and C. L. Clark, both of Salina, for appellant Leon Carl Johnson.

Archie T. McDonald, of McPherson, for appellant Edith Celestine Muller.

Ralph Knittle, of Salina, for appellees.

THIELE Justice.

This was an action to construe a will and to partition the real estate therein devised.

Charles G. Johnson, a resident of Saline county, died January 20, 1932, leaving a last will and testament which was thereafter duly admitted to probate. Omitting its introductory parts, the will reads:

"I give and devise and bequeath all my estate, real, mixed and personal and whereas situated, as follows:

"First: I direct that out on my personal property all my just debts including the expenses of my last illness and burial be paid.

"Second: I direct that, after taxes and necessary maintenance on my farm are paid, all the income from my property, real, mixed and personal, be paid to my beloved wife, Florence Mary Johnson. In case this income be not sufficient for her

living expenses, then, and then only, there shall be added to such net income an amount from other cash on hand and from the sale of personal property to equal nine hundred dollars per year.

"Third: I direct that, after the death of my wife, after taxes and necessary maintenance, expenses on farm improvements are paid, the income from my property, real, mixed and personal be divided equally between my daughter, Edith Celestine Muller and my son, Leon Carl Johnson.

"Fourth: After the death of my daughter, her half of my estate shall go to her children, share and share alike. At her death, in case none of her children survive her, her share shall revert to the residue of my estate.

"Fifth: After the death of my son, his half of my estate shall go to his wife and children according to the law of descents and inheritances in the State of Kansas. In case he has no children his wife shall receive the income of his share until her death when his share shall revert to the residue of my estate.

"Sixth: The residue of my estate thus created shall go to my then surviving heirs according to the law of Descents and inheritances of the State of Kansas.

"Seventh: The trustees shall have all power and duties of owners for the operation, management and protection of my estate, real, mixed and personal, except they shall not be empowered to incur debt, negotiate a mortgage on or sell any of the farm land owned by me at the time of death during the life of my children; but they shall be empowered and have authority to divide my farm land equally between my daughter, Edith Celestine Muller, and my son, Leon Carl Johnson, or their heirs above specified.

"Eighth: As executor and trustees to carry out the provisions of this will, I appoint, my wife, Florence Mary Johnson, my daughter, Edith Celestine Muller, and my son, Leon Carl Johnson. In case of the death or disability of one of the above trustees, the two remaining shall have the power to fill the vacancy. In case they are unable to agree on a succession or in case two vacancies are to be filled at the same time, then the district judge shall have power to fill the vacancy."

The widow, Florence Mary Johnson, died intestate in October, 1937. When the action was commenced the plaintiff Carl Johnson was married to Lillian A. Johnson. They had no children. Edith Celestine Muller was married to Roy J. Muller. They had two children, LeRoy C. Muller aged ten years, and Barbara L. Muller aged two years.

The action was started by the son, Leon Carl Johnson, who made his wife, his sister and her husband and their children, defendants. We need not review the allegations of the petition setting up the will, its admission to probate, the relationship of the parties, etc., as there is no dispute with respect to any of them. Plaintiff's contention was that under a proper construction of the will, the widow was given a life estate in all of the property, and that he and his sister were given the remainder in fee free from the claims of every other person; that he was the owner of an undivided one-half interest in all of the property and that his sister had a like interest, and under appropriate allegations he prayed for partition accordingly. Edith Celestine Muller and her husband answered admitting the allegations of plaintiff's petition and prayed for like relief. Ralph C. Knittle was appointed guardian ad litem for the minors, LeRoy C. Muller and Barbara L. Muller, and answered on their behalf, the general effect of the answer being to present a claim that Florence Mary Johnson and Edith Celestine Muller held the legal title in trust, and that the minors had an undivided contingent remainder in the estate of the deceased, and that the real property was not subject to partition. Other pleadings need not be mentioned.

The matter was submitted to the trial court which found there was no dispute of fact and which concluded that Charles G Johnson, by his will, intended to establish a testamentary trust; and that if the words used by him were alone insufficient to expressly convey the title to the trustees named, then such a trust was created by reason of the nature of the duties to be performed by the trustees; that the title to the property was in Leon Carl Johnson and Edith Celestine Muller as trustees of the testamentary trust created by the will and not in fee simple, and that each of the minor defendants have an interest in the estate contingent upon his or her surviving their mother, and that if the plaintiff, Leon Carl Johnson, leave surviving child or children, they would have a like interest. The trial court also concluded that the possession of the real estate by Leon Carl Johnson and Edith Celestine Muller was in their capacities as trustees and not as individuals and that the real estate was not subject to partition at that time. Judgment was entered accordingly. The plaintiff and the defendant Edith...