Meyer v. Rogers

• Decision Date: 07 June 1952
• Docket Number: No. 38415,38415
• Parties: MEYER v. ROGERS et al.
• Court: Kansas Supreme Court

Page 1169

244 P.2d 1169

173 Kan. 124

MEYER v. ROGERS et al.

No. 38415.

Supreme Court of Kansas.

June 7, 1952.

Rehearing Denied July 2, 1952.

Syllabus by the Court.

In an action by an alleged recognized illegitimate daughter of a deceased beneficiary of a trust created by the will and codicil of a nonresident decedent for a determination of her rights under the terms of the trust and for an accounting of the rents and profits from the Kansas real estate owned by the trust estate, the record is examined and it is held: Insofar as the Kansas real estate is concerned the determination of all questions involved is governed by the law of this state. Further held: (1) The finding that plaintiff is the recognized illegitimate child of the deceased beneficiary of the trust is supported by substantial competent evidence; (2) plaintiff is not barred from bringing the action by laches or any statute of limitations; (3) the action is not a 'will contest'; (4) the judgment of the district court of Gray County, Kansas, in 1945, that the will and codicil do not violate the rule against perpetuities, is res judicata on the question; and (5) plaintiff is a 'child' of her deceased father within the meaning of the will and codicil and as such is entitled (all as more fully set out in the opinion) to an accounting of the rents and profits from the Kansas real estate.

W. C. Gould, of Dodge City (R. R. Mitchell, of Dodge City, and Hal M. Stone, of Bloomington, Ill., on the briefs), for appellants.

W. A. Kahrs and Keith L. Wallis, both of Wichita (Robert H. Nelson and Clarence N. Holeman, both of Wichita, and Chesterman C. Linley, of Cimarron, and E. C. Minner, of Dodge City, on the briefs), for appellee.

PRICE, Justice.

This was an action brought under the declaratory judgment act by Mildred Meyer, appellee (hereinafter referred to as plaintiff), the alleged recognized illegitimate daughter of one Vesper Warner (hereinafter referred to as Vesper), to determine her rights as a beneficiary of and for an accounting of her alleged interest in the rents and profits from real estate situated in Kansas which is a part of a trust estate created by the provisions of a last will and testament and codicil thereto of Clifton H. Moore (hereinafter referred to as the testator) who died a resident of DeWitt County, Illinois.

Appellants (hereinafter referred to as defendants) are the surviving beneficiaries of the trust, together with the acting trustees thereof. None of them ever lived in Kansas.

Another phase of litigation involving this trust estate has been before this court previously and will be found in the opinion of In re Estate of Moore, 161 Kan. 603, 170 P.2d 838, and on rehearing at 163 Kan. 147, 181 P.2d 299. Whatever was said in those opinions which throws light on the historical factual background of the matter now before us is by reference incorporated herein. The instant action was commenced on June 12, 1947.

The testator, a resident of Illinois, executed his last will and testament in 1888. At that time he had two children, Arthur Moore and Winifred Moore Warner. After making a number of bequests to friends and relatives, item twelve of the will provided:

'I give, grant, devise, and bequeath to my Executors all my real estate, personal estate, and mixed estate of every nature and kind whatsoever, which I may possess and which has not been heretofore disposed of in fee, but in trust for the purposes heretofore named, and hereinafter named, and for no other or different purpose. * * * the sum remaining is to be equally divided yearly and paid along as the same comes in equally to my son, Arthur Moore, and to my daughter, Winifred Moore Warner, subject to the legacies and annuities hereinbefore named. At the death of my son, without issue him surviving the share given to him, less the six hundred dollars per year which is to be paid to his wife, Nellie during her natural life is to be paid to my daughter. Should my daughter depart this life before my son, her share of the rents, interest, and increase of my Estate is to be paid to and for the benefit of her children, and at the death of my son and daughter, then the whole of said rents, interest, and increase are, less taxes and improvements and expenses, to be paid to the children of my said son and daughter, or the survivor of them, per stirpes and not per capita, but while they are minors, only enough shall be paid to each to educate them, but subject to the annuities hereinbefore named after the death of the last one of my grandchildren, said rents, interest, and increase of my Estate is to be paid to their children and their descendants per stirpes and not per capita for the term of twenty years, but while they are minors only enough is to be paid to properly care for and educate them at the end of which said twenty years, all of said real estate is to be sold at such terms and in such manner as shall be deemed by my Executors, or their successors, be deemed best, and the money arising from sale be divided according to rights of my said heirs, or if said Executors deem it best, they may fairly divide said lands between my said heirs according to their rights per stirpes, continuing the payment of the annuities herein until the death of each annuitant. * * *'

The daughter Winifred died in 1894, survived by her husband Vespasian and five children--three sons and two daughters--among them being Vesper, the alleged father of plaintiff.

Shortly after the death of his daughter Winifred the testator executed a codicil to his will which, among other things, provided:

'Whereas since the making of my Last Will and Testament, dated September 28, 1888, my dearly beloved daughter, Mrs. Winifred Moore Warner, has departed this life, leaving her surviving three (3) sons and two (2) daughters. It is my will and I do hereby direct my said Executors to hold all my real, personal, and mixed property in said will named (subject to the specific division and annuities named in said will) in trust and for the benefit of my son Arthur Moore, and the children of my daughter one-half part to and for the benefit of my son Arthur Moore, rents and interest to be paid to or kept by him as it accrues, the other one-half part is to be paid to the sons and daughters in person of my daughter in equal part, share and share alike, only if any of them are minors, only enough of said rents, interest, and accumulation are to be paid to them, as may be sufficient to feed, clothe, and educate such minors. Should any of said five children depart this life leaving children or a child, then the share of such deceased is to be paid to such child or children, or survivors per stirpes and not per capita, until the arrival of the time when my whole estate is to be divided as set forth in my said will.'

The testator died on April 29, 1901, survived by his wife Rose, his son Arthur, and his five grandchildren who were the children of his prior deceased daughter Winifred. The will and codicil were duly admitted to probate in DeWitt County, Illinois. We are not concerned with the rights, if any, of the testator's widow in the estate. She died in 1907. Arthur, the son, died in November, 1901, without issue or the issue of any prior deceased issue. His wife survived him by serveral years, but we are in no way concerned with her rights, if any, under the will and codicil.

It will thus be seen that upon the death of Arthur the immediate beneficiaries of the trust created were the five living children of Winifred, they being grandchildren of the testator.

Included in the trust estate were in excess of 12,000 acres of real estate situated in Gray County, Kansas. The will and codicil were duly recorded in the probate court of that county some time between November 9, 1905, and April 9, 1906. The land in Gray County has been held intact, is still a part of the estate, and has been operated over the years by the trustees acting under the jurisdiction of the Illinois court.

Prior to the trial of this action the parties entered into certain stipulations at a pretrial conference. Among them were that plaintiff is an illegitimate child; that she was born on January 24, 1902; that no children were born as the result of the marriage of Vesper and Ella May Johnston which occurred on May 29, 1901; that all proceeds of the trust estate in Gray County have been paid to the trustees, to the exclusion of plaintiff, and that she has received nothing from the estate.

At the conclusion of the trial the court made extensive conclusions of fact and of law. A number of the former are recitals of formal matters heretofore referred to and will not be repeated.

Among other things, and concerning which there is no dispute, the court found that of the five grandchildren of the testator (they being the children of his prior deceased daughter Winifred), Clifton M. Warner, Mary Frances Crist and Winifred Warner Rogers are living, and that the other two, John Warner II and Vesper, are deceased, the latter having died on April 10, 1912, intestate, leaving surviving him his widow, Ella May Johnston Warner, she having died since the filing of the action. We are not concerned with what rights, if any, she may have had under the will and codicil.

The court further found that plaintiff was the illegitimate daughter of Goldendine Baker (hereinafter referred to as Goldie) and Vesper; that Vesper recognized plaintiff as his child, and that such recognition was general and notorious as contemplated by G.S.1935, 22-122, and G.S.1949, 59-501.

As conclusions of law the court held, among other things, that the will and codicil violate the rule against perpetuities in that the attempt to vest an estate in the great-grandchildren of the testator was too remote; that the finding and judgment of the district court of Gray County rendered in November, 1945, in another proceeding, to the effect that the will and codicil did not violate the rule against...