Meador v. Manlove

• Decision Date: 08 April 1916
• Docket Number: 20062
• Citation: 97 Kan. 706,156 P. 731
• Parties: MEADOR ET AL. v. MANLOVE ET AL.
• Court: Kansas Supreme Court

156 P. 731

97 Kan. 706

MEADOR ET AL. v. MANLOVE ET AL.

No. 20062

Supreme Court of Kansas

April 8, 1916

Syllabus

Where a court of general jurisdiction has secured jurisdiction of the parties who hold the legal titles to land in another state, it may render a judgment to impress a trust as to such land and order the trustees to execute a conveyance thereof and the possible difficulties which may attend the enforcement of its judgment do not in any wise abridge its jurisdiction.

Where defendants who have been summoned personally and defendants who have been summoned by publication service join in a pleading or motion raising questions of law and questions of fact involved in the general issue of a cause, a general appearance is thereby entered by all the defendants.

Where a husband and wife agree to make wills of all their respective properties in each other’s favor upon condition that the survivor of the two shall make a new will after the death of the first bequeathing the property received by such a will to the heirs of the deceased spouse, the heirs intended to be benefited thereby are the next of kin who would take under the statute of descents and distributions.

Neither the statute of frauds nor the statute of trusts and powers is a bar to the enforcement of an oral agreement to make a will when it has been fully performed by one of the parties following the rule announced in Gemmel v. Fletcher, 76 Kan. 577, 92 P. 713, 93 P. 339, and Smith v. Cameron, 92 Kan. 652, 141 P. 596, 52 L. R. A. (N. S.) 1057.

There is no disqualification of witnesses in this state merely because such witnesses are directly or indirectly interested in the outcome of a lawsuit, but their interest may be shown as affecting their credibility. Code Civ. Proc. § 317 (Gen. St. 1909, § 5911).

Rule followed that the trial court’s findings of fact, when based upon sufficient, though disputed or conflicting, testimony, will not be disturbed on appeal.

Where a judgment is not traceable to a variance between the pleading and the proof, and that variance is not brought to the attention of the trial court, the variance cannot be made the basis of reversible error on appeal.

A husband and wife without children made an oral agreement to make wills of all their property in each other’s favor upon condition that when one of them died the surviving spouse would make a new will bequeathing the property received by such a will to the heirs of the deceased spouse. In accordance with this agreement both made such wills. The wife died first. Thereafter the husband, in violation of the agreement, made a will bequeathing all his property to his own kindred, including what he had received by his wife’s will, and cutting off entirely the heirs of the wife, her parents. Held, that those who took title to the husband’s property under the will made in breach of the agreement did so as trustees for the benefit of the wife’s parents, and, where the parents died during the progress of the litigation pertaining to the enforcement of such trust, the trustees will be decreed to hold the title of the property as a constructive trust for the benefit of the heirs and legal representatives of the wife’s parents.

Appeal from District Court, Linn County.

Action by George C. Meador and others, revived in the name of Eugene B. Meador, as executor, against Orlando Manlove and others, as executors, revived in the name of L. R. Sellers, as administrator, and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

L. A. Jarman, of Rushville, Ill., and Jno. A. Hall, of Pleasanton, for appellants.

John O. Morse, of Mound City, and W. P. Dillard, of Ft. Scott, for appellees.

OPINION

DAWSON, J.

This is an appeal from a judgment of the district court of Linn county, and in which it was decreed that certain beneficiaries of the will of David C. Manlove hold title to 40 acres of Illinois land in trust for the plaintiffs, and directing them to convey this land to plaintiffs, and in which it was also decreed that certain moneys and bank shares were held by David C. Manlove’s executor in trust for the plaintiffs and directing the transfer and delivery thereof to the plaintiffs.

An abridged statement of the facts is as follows: In 1896, David C. Manlove, a bachelor, of Prescott, Kan., married Emma C. Price, a widow, of Macomb, Ill. Each was possessed of considerable property, and they had no children. Some time during the earlier years of their married life they made an oral agreement that they would make wills conveying all their property to each other, and that after one of them had died the other would make a new will bequeathing to the heirs of the first that estate which would come to the second by the will of the one dying first. Thus, if David died first, Emma would take all by his will, but in turn would bequeath the property received from him to his heirs. On the other hand, if Emma died first, David would take all by her will, but he would bequeath to Emma’s heirs the property received by him through Emma’s will.

Accordingly on September 11, 1899, David made a will bequeathing all his property to Emma; and on March 20, 1900, Emma made a will bequeathing all her property to David. Emma died on July 30, 1911, and her will was probated. David qualified as executor and took possession of the property as beneficiary. On June 3, 1912, David made a new will after Emma’s death, which wholly ignored the oral contract with his wife. He bequeathed his entire estate, including what he had acquired by his wife’s will, to his own relatives, excepting one item to a personal friend. David died on August 11, 1912. The original plaintiffs were the parents of Emma. They have died, and the action is prosecuted by their executor and their heirs and beneficiaries. The defendants are the sole surviving executor of the will of David and the beneficiaries of David’s will.

The trial court made findings of fact and conclusions of law and gave judgment for the plaintiffs. The defendants present a formidable assignment of errors, and support it with a brief of 159 pages and a reply brief of 14 pages. These briefs display a comprehensive research and review of authorities, and an industry which is marvellous, but space and time will only permit us to discuss the principal points which must control this appeal. These we will note as nearly as convenient in the order of their presentation.

1. Did the district court of Linn county, Kan., have jurisdiction to render a decree declaring a trust in relation to the Illinois land and directing defendants to convey it to the plaintiffs? If the court had jurisdiction of the defendants, it seems settled by the authorities that it did have such jurisdiction. Fall v. Fall, 75 Neb. 104, 120, 106 N.W. 412, 113 N.W. 175, 121 Am. St. Rep. 767, affirmed in Fall v. Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65, 23 L. R. A. (N. S.) 924, 17 Ann. Cas. 853. See, also, notes in 69 L. R. A. 678 et seq., and 27 L. R. A. (N. S.) 420, 421. In Manley v. Carter, 7 Kan.App. 86, 52 P. 915, in which Massie v. Watts, 6 Cranch, 148, 3 L.Ed. 181, and Phelps v. McDonald, 99 U.S. 308, 25 L.Ed. 473, are cited, it was held that a court of equity having jurisdiction of the parties may render a judgment to enforce a trust as to land not within its territorial jurisdiction. We will not now concern ourselves as to how the district court may be able to enforce its decree nor what may be the status of the title to the land in Illinois if the decree directing its conveyance to plaintiffs is not obeyed. 7 R. C. L. 1062. The defendants’ only claim to the title to the land in Illinois is based on the will of a citizen of Kansas, a will made in Kansas, and its terms modified by a Kansas court of competent jurisdiction; for such is virtually the effect of the judgment under review.

Since the court had personal jurisdiction of Orlando Manlove both personally and as executor, and later, upon Orlando’s decease, it had personal jurisdiction of his executor and his heirs, no great difficulty is likely to arise in making the court’s decree effective so far as relates to Orlando’s undivided one-third interest in the Illinois land, whatever obstacles may arise in giving effect to the decree so far as the title is held in trust by the two nonresidents, Dora Rexroat and Louisa Crandall. But we will not wrong these defendants by assuming that they will be recalcitrant, nor that they will attempt to hold as their own that which has been lawfully decreed to belong to others.

2. Did the district court have jurisdiction of the parties? This question only relates to the appearances of the nonresident defendants, as personal service of summons was obtained on the others. Service by publication was made as to the nonresidents. This was challenged by a motion which was filed by all the defendants, residents and nonresidents, in which the defendants (all of them) moved the court--

"for an order quashing the service of summons by publication upon such of these defendants as are shown to be nonresidents of the state of Kansas by the records herein, so far as this action in any way relates to real estate not situated within the state of Kansas, and as to any personal action for damages or otherwise against them. And these defendants in support of this motion show to the court that Emma C. Manlove did not at the time of her death own any real estate whatever within the state of Kansas, but that the said Emma C. Manlove did at the time of her death own certain real estate in the state of Illinois, described in the affidavit herein filed by C. E. Crandall. These defendants show to the court that this court has not jurisdiction to render any judgment relating to the said Illinois land."

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