Parsons v. Smith

• Decision Date: 15 July 1959
• Citation: 376 P.2d 899,190 Kan. 569
• Parties: Henry C. PARSONS, Appellee, v. Leah SMITH, Trustee under a Trust Agreement dated
• Court: Kansas Supreme Court

Page 899

376 P.2d 899

190 Kan. 569

Henry C. PARSONS, Appellee, v. Leah SMITH, Trustee under a Trust Agreement dated July 15 1959, and Executed by Edith A. Golden, Norman Anthony and N. H. Anthony, Jr., Appellants.

No. 42940.

Supreme Court of Kansas.

Dec. 8, 1962.

Syllabus by the Court.

The record in an action requiring construction of a will, determination of the validity of a trust agreement, and the propriety of court orders overruling a demurrer to the amended petition and denying a motion for allowance of attorney fees and costs, is examined and, under the particular facts, conditions and circumstances set forth at length in the opinion, and for reasons therein cited, it is held:

1. The will in question gave the testator's wife a life estate in his property with the qualified power of disposition of such property for her personal use and benefit during her lifetime but that qualified power did not include the right to gratuitously dispose of such property by a trust agreement, or otherwise, for purposes foreign to the wife's personal needs and requirements.

2. The trust agreement executed by the wife attempted to dispose of the deceased husband's property in violation of the qualified powers granted her by the terms of the will and was invalid.

3. The action of the trial court in overruling the defendants' demurrer to the amended petition, which is conceded to have been submitted upon the construction that should be given to the involved will, was proper and is upheld.

4. The action of the trial court in overruling the defendant trustee's motion for allowance of attorney fees and costs was improper and is reversed.

R. C. Woodward, El Dorado, argued the cause, and H. Pauline Woodward, El Dorado, was with him on the briefs, for appellants.

L. J. Bond, El Dorado, argued the cause, and Robert M. Bond, El Dorado, was with him on the briefs, for appellee.

PARKER, Chief Justice.

Plaintiff, Henry C. Parsons, brought this action against the defendants, Leah Smith, Trustee, and Norman Anthony and N. H. Anthony, Jr., as beneficiaries of the trust, to set aside the trust and decree that plaintiff was the owner of all the trust property, with its accumulations and substitutions, under and by virtue of the will of D. B. Golden, deceased.

During the course of the proceedings the defendants' general demurrer to plaintiff's amended petition was overruled and the defendants have appealed from that ruling.

Following the overruling of the demurrer, defendant Leah Smith, Trustee, filed a motion asking the district court to invade the trust funds in her hands for the purpose of paying attorneys to defend the case and for costs incurred by her in the action. This application was denied by the court on the basis it had no discretionary power to make such allowances. Thereupon defendant Smith perfected an appeal from that ruling.

The appeals in question have been filed, docketed, and presented in this court as one appeal and will be disposed of in that manner.

Since all questions involved on appellate review stem from the trial court's ruling on a general demurrer to the amended petition, the well-pleaded allegations of which must be accepted as true, there can be no dispute between the parties as to the controlling facts of this case, to which we now direct our attention.

An examination of the petition, and the Exhibits attached thereto, discloses:

That D. B. Golden died testate January 18, 1954, leaving a last will and testament which, so far as its testamentary directives are concerned, contains three paragraphs. The first paragraph of such will directs payment of all the testator's just debts. The third paragraph requests the appointment of his wife, Edith A. Golden, as executrix. The second paragraph, which is conceded by the parties to contain the provisions giving rise to the all-decisive issues involved in this case, reads:

'I give, devise and bequeath all of the property which I may own at the time of my death, including real, personal and mixed, wheresoever situated, to my wife Edith A. Golden and it is my wish that she shall have full power and authority to sell, mortgage, lease, transfer or otherwise dispose of any of said property and to use all or any part thereof during her life time, but if any of the property herein given, devised and bequeathed to my said wife shall remain at the time of her death said remainder I give, devise and bequeath to my nephew Henry C. Parsons, of Williamsport, Pennsylvania.'

That D. B. Golden's estate was probated, and closed, and that thereafter Edith A. Golden, his widow, entered into possession of all the property of her deceased husband.

That on July 15, 1959, some two years before her death, Edith A. Golden executed and delivered a trust agreement which conveyed property, admittedly acquired under the will of her deceased husband, to Leah Smith, Trustee. Under the terms of the trust agreement the trustee was given title to all the trust property with full power to sell, convey, convert and reinvest such property and to pay the net income therefrom, and, in the exercise of her discretion, if it became necessary invade the principal, for the support of Edith during her lifetime. Further provisions provided that upon Edith's death the trustee was to pay the net income received from the property to Edith's brother, Norman Anthony, during his lifetime; and directed that on his death the trust was to terminate and one-half of the trust property was to be delivered to appellee Parsons, a nephew of D. B. Golden, and one-half to appellant Norman [N. H.] Anthony, Jr., a nephew of Edith. It is admitted that no valuable consideration was paid to Edith by either the trustee or the beneficiaries for execution and delivery of the trust agreement.

The appellant Leah Smith took possession of the trust property, delivered to her as trustee under the terms and provisions of the trust, and was discharging the duties imposed on her in that capacity at the time the litigation herein involved was commenced.

The parties agree the paramount question involved on appellate review is whether the trust conveyance is valid and the record in the court below discloses such question was submitted by them to that court upon the construction that should be given the will of D. B. Golden, particularly the second paragraph thereof. Moreover, the record presented in this court reveals that under the issues raised by the petition and demurrer submission of the cause on that basis was proper. Therefore, based upon our own independent examination of the record before us, as well as the record in the court below, we are convinced and hold, notwithstanding some quibbling between the parties on the point, that fundamentally this case not only involves but requires an interpretation and construction of the will of D. B. Golden, deceased.

As we understand their respective contentions with regard to the force and effect to be given the will appellants, on the one hand, contend the language of that instrument is so clear and unambiguous as to compel a conclusion Edith A. Golden took a life estate, with unqualified power of disposition during her lifetime, in the property devised to her by her deceased husband, hence she had full power and authority to dispose of such property under the involved trust agreement. On the other hand appellee contends that such will, in clear and unequivocal terms, gave Edith A. Golden a life estate in the property so devised with a qualified power of disposition of title, which power did not extend to disposition of such property by her for purposes other than her own use and benefit.

The rule of this jurisdiction is that when the language used in the making of a will is clear and unambiguous a construction of that instrument is unnecessary and it must be enforced in accord with its terms and provisions. See, e. g., In re Estate of Reynolds, 173 Kan. 102, 244 P.2d 234; In re Estate of Hauck, 173 Kan. 116, 223 P.2d 707. In a summary way it may be said that, under this rule, where a court, either trial or appellate, is called upon to determine the import to be given the terms of a will its first duty is to survey the instrument in its entirety and ascertain if there is occasion for employing rules of judicial construction in determining its force and effect.

We have examined the pertinent portions of D. B. Golden's will, i. e., the second paragraph thereof which has been heretofore quoted at length, and it may be stated that, after a careful analysis of its terms and provisions, we are unwilling to say its terms and provisions, standing alone, are so clear and definite as to warrant the construction which either the appellants or the appellee seek to place upon them.

Having determined there is ambiguity in the terms of the will it necessarily follows such instrument is subject to construction under the rules which are well-established...