Mathews v. Savage

• Court: Kansas Supreme Court
• Citation: Mathews v. Savage, 407 P.2d 559, 195 Kan. 501 (Kan. 1965)
• Decision Date: 06 November 1965
• Docket Number: No. 44198,44198
• Parties: W. R. MATHEWS, Administrator, (Substituted for Ernest E. Savage, Deceased,) and Doris Bloomfield Goldsmith, Appellants, v. Mayme B. SAVAGE, Jack Savage and Grace M. Helt, Appellees.

Page 559

407 P.2d 559

195 Kan. 501

W. R. MATHEWS, Administrator, (Substituted for Ernest E Savage, Deceased,) and Doris Bloomfield Goldsmith Appellants, v. Mayme B. SAVAGE, Jack Savage and Grace M. Helt, Appellees.

No. 44198.

Supreme Court of Kansas.

Nov. 6, 1965.

Syllabus by the Court

1. A fundamental essential of any trust is a separation of the legal estate from the equitable estate and the beneficial enjoyment.

2. 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 sole beneficial interests are in the same person is recognized in this state.

3. 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. (Following Johnson v. Muller, 149 Kan. 128, 86 P.2d 569.)

4. Arriving at the intentions of the testator from all portions of the will set forth in the opinion, it is held: The testator intended his named trustee to take and hold the real estate in question and perform the duties which the will imposed on him.

5. This court is committed to the rule of favoring vested rather than contingent remainders and no remainder will be construed to be contingent which may, consistently with the words used and the intention expressed, be deemed vested.

6. Where a testator devised all of his real estate to his son and daughter upon their making a cash payment to a granddaughter, there was no devise over and there was nothing to indicate that the testator contemplated failure of the devise, it is held: The payment provided for in the will was not a condition precedent to the vesting of the title but was a charge against the devised real estate. (Following Votapka v. Votapka, 136 Kan. 224, 14 P.2d 732.)

W. R. Mathews, Winfield, argued the cause, and Lawrence E. Christenson and Marion P. Mathews, Winfield, were with him on the briefs for appellants.

Harry O. Janicke and Robert L. Bishop, Winfield, argued the cause, and John A. Herlocker, Winfield, was with them on the briefs for appellees.

HATCHER, Commissioner.

This appeal stems from a controversy over the validity of testamentary devises which were to take effect following the expiraction of certain life estates.

It should be noted at the outset of this opinion that the appellants have challenged the right of the appellees to be heard in the court below and also their right to be heard on appeal because of alleged procedural errors, delays and acquiescence. We have not ignored the procedural questions raised but, after careful consideration, have reached the conclusion that the best interest of the litigants will be served if we proceed immediately with a consideration of the appeal on the merits.

George W. Savage died on October 17, 1936, leaving a will dated July 10, 1935. The will made provision for the payment of his just debts and funderal expenses; gave all of his personal property to his wife, Mary Jane Savage; gave his wife a life estate in all of his real estate, and provided further:

'4. After the death of my wife, it is my will that the income from all of said real estate, after the payment of taxes and necessary upkeep and expenses of the property from the date of the death of my said wife until the date of the death of my son, Ernest E. Savage, be divided share and share alike between my sons, Ernest E. Savage, and Roy W. Savage, and my daughter, Grace M. Helt. And I hereby appoint my son, Roy W. Savage, as Trustee with authority to collect the rents and profits from said real estate during said time and pay the taxes and other necessary expenses incident to the handling of said property and divide the proceeds among said parties as aforesaid.

'5. After the death of my said son, Ernest E. Savage, it is my will and I hereby give, devise and bequeath all the remainder of my said property to my son, Roy W. Savage, and my daughter, Grace M. Helt, share and share alike, upon their paying to my granddaughter, Doris Bloomfield, the sum of Fifteen Hundred Dollars, ($1500.00), and I hereby give and bequeath to my said granddaughter the said sum of be paid by my son, Roy W. Savage, and my daughter, Grace M. Helt, within a year after the death of my said son Ernest E. Savage, and upon making said payment the full title to my said real estate shall vest in my said son, Roy W. Savage, and my daughter, Grace M. Helt.'

The will was admitted to probate on January 9, 1937. The administration was closed March 4, by an order which directed that the appointment of a trustee be held in abeyance during the life tenancy of the widow.

Following the life estate of the widow, the court appointed Roy W. Savage trustee. He filed his reports, gave notice thereof, disbursed the funds and paid expenses on the property out of the income from the property until his death. Thereafter, his widow, Mayme B. Savage, under direction of the court acted as trustee. Following the death of Roy W. Savage his heirs filed their action to determine the descent of Roy's property, which they claimed included a one-half interest in the holdings listed in the will of George W. Savage. Plaintiffs, appellants herein, on the 16th day of February, 1962, filed an action for construction of the will of George W. Savage under the Declaratory Judgment Act. (G.S.1949, 60-3127.)

The plaintiffs alleged in their petition the insufficiency of paragraph 4 of the will to devise the real estate to the trustee and to carry out the purposes of the alleged trust, and further alleged that paragraph 5 of the will created a condition precedent and failed to vest the title in defendants in violation of the rules against perpetuities. The prayer of the petition requested that paragraphs 4 and 5 of the will be declared void and that the real estate be assigned to the heirs of the testator under the law of descent and distribution.

The trial court found that the language in paragraph 4 of the will was sufficiently specific to constitute a legal devise of the real estate to the trustee; that under the language of the will the remainder interests of Roy W. Savage and Grace M. Helt became vested at the time of the death of the testator, and that the devise to Roy and Grace was not void as violating the rule against perpetuities merely because it was conditioned upon the payment of $1,500.00 to Doris, the granddaughter.

Judgment was rendered for defendants and plaintiffs have appealed.

Although immaterial to the determination of the issues before us, it is noted that Ernest E. Savage died on October 5, 1965, and the administrator of his estate, W. R. Mathews, was substituted as one of the appellants.

It would appear that for the purpose of determining this controversy the thirteen points upon which appellants rely for reversal may be reduced to two simple questions:

1. Is the language of paragraph 4 of the will sufficient to create a valid trust?

2. Did the language of paragraph 5 of the will create a vested remainder in Roy W. Savage and Grace M. Helt?

The appellant contends that the language of paragraph 4 of the will did not create a legal devise of the real estate to the trustee but merely created a bailee or agent.

We cannot agree. The language of the will, after designating the beneficiaries of the income from the real estate, definitely appointed 'my son, Roy W. Savage, as Trustee' and gave him authority over the rents and profits such as is usually held by a trustee. Under paragraph 5 of the will the trust terminates on the death of Ernest E. Savage.

The appellant calls our attention to the rule announced in 54 Am.Jur., Trusts, § 34, p. 45, which reads:

'It is essential to the creation of an express trust that the settlor presently and unequivocally make a disposition of property by which he divests himself of the full legal and equitable ownership thereof. * * *'

We have no quarred with the rule as above announced, however, its application is doubtful where the trust is not to take effect until after the death of the settlor.

A fundamental essential of any trust is a separation of the legal estate from the equitable estate and the beneficial...