Loomis' Estate, In re
| Decision Date | 08 March 1969 |
| Docket Number | No. 45255,45255 |
| Parties | In the Matter of the ESTATE of Nellie LOOMIS, Deceased. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A testamentary charitable trust is created only if the testator properly manifests an intention to create such a trust. No particular form of words is necessary for the manifestation of intention to create a charitable trust but such a trust is not created unless the testator manifests an intention to impose enforceable duties.
2. Manifestation of intention to create a testamentary charitable trust means the external expression of intention in writing as distinguished from undisclosed intention or oral instructions or directions given to the named executor or trustee appointed by the will.
3. A testator may by will devise and bequeath property to a corporation to be formed after his death if it is therein provided that such corporation shall be so formed and the gift is otherwise valid as, for example, in the case of a valid gift for charitable purposes and uses.
4. The power to dispose of property by will is limited to the extent that the disposition therein provided must be to some person or persons or legal entity in existence either at the time of the death of the testator or when the gift would vest under the will.
5. A will speaks from the time of the testator's death unless it plainly shows a contrary intention, and is to be construed as operating according to conditions then existing.
6. The capacity of a devisee or legatee to take a present vested interest is to be judged as of the time of the death of the testator and must exist at that time in order for the gift to be valid.
7. A testatrix devised the residue and remainder of her estate to the proposed Nellie Loomis Memorial Home for the Aged, a nonexistent entity having no capacity to take the property at the time of the testatrix' death. The will did not direct that a corporation be created after her death to establish the home and administer the gift for the purpose intended, nor did it impose enforceable duties upon any person or legal entity with capacity to take the property and administer the gift for charitable purpose. It is held that extrinsic evidence of oral direction by the testatrix to the named executor after she executed her will, to prepare plans for the building of the home, and to incorporate the named home after her death, was inadmissible as bearing upon the construction of the will and of the testatrix' intention to create a testamentary charitable gift.
Lawrence P. Andra, Wichita, for appellants, Ernest A. Warden, Wichita, on the brief.
Ronald D. Albright, Anthony, for appellee, Martha McKenna, Kingman, and Robert H. Nelson, Wichita, on the brief.
This case arises out of the construction of the will of Nellie Loomis and for direction as to the distribution of the residue of her estate devised by the third paragraph of her will to the 'proposed Nellie Loomis Memorial Home for the Aged, Cheney, Kansas.' The district court entered judgment that the third paragraph of the will constituted a valid bequest and devise. The appellants are the decedent's heirs at law. The appellee is the executor named in the decedent's will.
The will was admitted to probate in Sedgwick County on February 19, 1964, and omitting the attestation clause and signatures, reads:
'I, Nellie Loomis, of Milton, Kansas, do hereby make, publish and declare this my last will and testament in manner and form following:
'IN WITNESS WHEREOF I have hereunto subscribed my name in the presence of Mary Bomholt and Jennie Casley both of Cheney, Kansas, whom I have requested to become attesting witnesses hereto this 28th day of September, 1962.
'/s/ Nellie Loomis'
The merits of the appeal depend upon the validity of the appellant's contention that the third paragraph of the will contained no indication at all that a trust was to be created, and since there was no person or legal entity in existence with capacity to take the property at the time of the decedent's death, the devise was void, and the property descended to the decedent's heirs at law.
The parties stipulated that at the date of the testatrix' death the proposed Nellie Loomis Memorial Home for the Aged was not in existence. Because of the nature of the gift, that is, to the proposed Nellie Loomis Memorial Home for the Aged 'to have and to hold the same forever,' neither the executor nor anyone else may establish such a home at any future time. The executor is obligated to administer the estate in conformity with law, and paragraph three directs he distribute the residue to a nonexistent entity. Under those circumstances, is the residuary clause valid?
The appellee contends the devise contained in paragraph three created a valid charitable trust based upon evidence admitted in the district court, over the appellants' objection, of oral direction by the testatrix to the named executor after she had executed her will, to prepare plans for the building of a home for the aged which she approved in her lifetime and to incorporate the Nellie Loomis Memorial Home for the Aged after her death, which, he asserts, delineated the charitable purpose of the gift and the organization proposed to administer it.
A charitable trust is created by a will only if the settlor properly manifests therein an intention to create a charitable trust, but such a trust is not created unless the settlor manifests an intention to impose enforceable duties. (2 Restatement of the Law, Trusts, § 351, p. 1099.) The trust for a charitable object must be to some person, body or association of persons having a legal existence and with capacity to take and administer the trust, and for some definite and lawful object. (Ratto v. Nashville Trust Co., 178 Tenn. 457, 159 S.W.2d 88, 141 A.L.R. 341.)
It has been held that a devise of the residue of an estate to a corporation to be created after the...
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