Pizel v. Pizel, 52965

• Decision Date: 01 April 1982
• Docket Number: No. 52965,52965
• Citation: 643 P.2d 1094,7 Kan.App.2d 388
• Parties: Vernon PIZEL, et al., Appellees, v. Allen D. PIZEL, et al., Appellants.
• Court: Kansas Court of Appeals

Page 1094

643 P.2d 1094

7 Kan.App.2d 388

Vernon PIZEL, et al., Appellees, v. Allen D. PIZEL, et al., Appellants.

No. 52965.

Court of Appeals of Kansas.

April 1, 1982.

Review Denied June 28, 1982.

Syllabus by the Court

1. The mere fact that both parties to a lawsuit move for summary judgment does not, in and of itself, compel the court to grant summary judgment. If material questions of fact actually remain in dispute, summary judgment must not be granted.

2. An express trust implies the cooperation of three persons: (1) A settlor, or a person who creates or establishes a trust; (2) a trustee, or person who takes and holds legal title to the trust property for the benefit of another; and (3) a cestui que trust, or the person for whose benefit a trust is created.

3. The essential elements of an express trust are (1) an explicit declaration and intention to create a trust, (2) definite property or subject matter of the trust, and (3) the acceptance and handling of the subject matter by the trustee as a trust.

4. The issue of trust intent cannot be resolved solely from a self-serving declaration in the trust instrument, but instead must be viewed and decided in light of all the attending facts and circumstances in the case.

5. Where the grantor in a deed deposits it with a third person, to receive and hold the same for delivery to the grantee after the death of the grantor, with a declared or manifest intention to place it beyond the custody and control of grantor and thereby to give it effect as a present conveyance, it is a sufficient delivery, and in such a case title is deemed to vest at once in the grantee with only the enjoyment of the property being postponed.

6. The record is examined, and under the particular facts and circumstances detailed in this opinion, it is held : the grantor's attempts to create a revocable inter vivos trust were insufficient as a matter of law; no valid trust ever existed. The property which was to be the trust res passed, at the grantor's death, not pursuant to the failed trust, but under the residuary clause of the grantor's will.

B. E. Pete Whalen and Jerry D. Fairbanks of Whalen & Fairbanks, P. A., Goodland, for appellants.

Randall W. Weller of Jones, Weller & Elliott, Hill City, for appellees.

Before ABBOTT, P. J., and SWINEHART and MEYER, JJ.

MEYER, Judge:

This is an appeal from a summary judgment for plaintiffs (appellees), quieting title to real property in favor of appellees, as takers under a will, as against defendants (appellants), who claimed the subject real estate as beneficiaries under a purported trust.

Charles Pizel was a lifelong resident of Sherman County, Kansas; he died in that county on April 24, 1979. He was never married and had no children; his only heirs at law were nephews and nieces. At his death, Charles Pizel had accumulated a sizeable estate.

Charles Pizel evidently undertook to plan his estate, at least partially, in the spring of 1962, with the advice and assistance of Eugene P. Zuspann, an attorney in Goodland, Kansas. On May 23, 1962, Charles Pizel executed a document entitled "Charles Pizel Revocable Trust". That document provided that Charles Pizel was the settlor; the trustees were Charles Pizel, Wilfred J. Pizel and Allen D. Pizel. Wilfred J. Pizel and Allen D. Pizel were nephews of Charles Pizel. It purported to establish a trust-the res being 1,760 acres of real property in Sherman County, Kansas.

Also, on that same day, May 23, 1962, Charles Pizel executed a deed wherein the 1,760 acres of real estate described above were listed, and this deed purported to convey to Charles Pizel, Wilfred J. Pizel, and Allen D. Pizel as trustees of the "Charles Pizel Revocable Trust", as grantees, from Charles Pizel, a single person, as grantor and settlor of the "Charles Pizel Revocable Trust". The said deed and trust agreement remained in the hands of the attorneys representing the said Charles Pizel until the date of his death; neither were filed with the local register of deeds until after Charles Pizel's death.

On May 23, 1962, Charles Pizel also executed his Last Will and Testament. Under Article V of this will, he devised and bequeathed all his personal property and realty not otherwise disposed of in the will to all of his nieces and nephews, except Wilfred J. Pizel and Allen D. Pizel, who had received certain personal property under other articles in the will. Charles Pizel, at the time of making the will and codicil, owned no real estate other than the 1,760 acres described in the trust instrument; the trust is neither mentioned nor referred to in the will.

On June 10, 1975, Charles Pizel signed a document along with Wilfred J. Pizel, Allen D. Pizel and Herbert Pizel entitled "First Amendment to the Charles Pizel Revocable Trust". That document basically provided that Herbert Pizel should be added as a trustee, along with Allen D. Pizel and Wilfred J. Pizel. In effect, the said Charles Pizel removed himself as a trustee and appointed Herbert Pizel in his stead as trustee by this 1975 amendment. In other words, according to the document, Charles Pizel was to be a beneficiary only and was no longer to be a trustee in any manner. There were no other basic changes from the original trust agreement except those changes necessary to include Herbert, and except that upon the death of Charles Pizel, the amended trust provided for a separation into three separate trusts.

On that same day, Charles Pizel executed a new deed containing the same 1,760 acres described in the trust instrument, which purported to convey the said real estate to "Wilfred J. Pizel, Allen D. Pizel, and Herbert Pizel, Trustees of the 'Charles Pizel Revocable Trust'." This deed was signed by Charles Pizel, individually as grantor, but was not signed by Allen D. Pizel and Wilfred J. Pizel (two of the original trustees). This deed and the "First Amendment to the Charles Pizel Revocable Trust" were likewise placed with the attorneys for Charles Pizel; neither was filed with the register of deeds prior to the death of Charles Pizel.

On January 11, 1979, Charles Pizel executed a "Codicil" to his Last Will and Testament. Slight changes were made by the codicil, as follows:

(a) Article III referred to a quarter of land which Charles Pizel had originally devised to H. L. Pizel, and acknowledged the fact that he had now deeded it.

(b) Article IV was amended to include Herbert Pizel, a/k/a H. L. Pizel, as a legatee to receive livestock and farm machinery.

(c) Article IV was also amended to make provisions about antique machinery owned by the said Charles Pizel.

The decedent, in his codicil, stated: "... I do hereby republish, ratify and reaffirm my said Last Will and Testament in all respects as modified by this Codicil...." Therefore, the residuary clause of the will was not altered.

At all times after May 23, 1962, Charles Pizel continued to operate his farming business on the 1,760 acres involved as an individual. He also executed several oil and gas leases relating to the subject property, signing each as an individual. At no time was any business conducted by him or on his behalf as representative of a trust. The deposition testimony of each of the three nephews named as trustees indicated that none of them acted in any capacity as a trustee prior to the death of Charles Pizel. Each also expressed his belief that Charles Pizel intended that no trust exist prior to his death.

Soon after the death of Charles Pizel, his attorney filed the original trust instrument and deed, and the amendment to the trust, with the Register of Deeds of Sherman County, Kansas. This was the first official recording of any of these documents.

Thereafter, appellees filed their petition in the District Court of Sherman County, alleging that no trust, in fact, existed at the time of the death of Charles Pizel, and that a subsequent recording of documents by a decedent's attorney would not cause a trust to spring into being. They declared that the subject real estate therefore passed to them as devisees under the will. As such, the recorded documents put a cloud on appellees' title, and they therefore prayed the court to quiet title in them and to order removal of said recordings.

After extensive discovery by way of depositions, each side filed a motion for summary judgment, supported by briefs; both sides at that time indicated that they felt the case was ripe for summary judgment. The district court granted appellees' motion for summary judgment, denied appellants' motion for same, and ordered title quieted in appellees. From this decision, appellants bring this appeal.

The first issue is whether summary judgment was proper in this case. K.S.A. 60-256(c) provides:

"The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

Both parties moved for summary judgment. In their supporting briefs, both parties set forth factual statements which were substantially identical; the depositions of various parties provided corroboration and support for these statements. The appellants, in their brief before the trial court, went so far as to expressly state:

"In comparing the facts as sent (sic) out in Plaintiffs' (appellees) Brief in Support of Summary Judgment and the facts stated above by the defendants (appellants) are in agreement. This is a matter which is ripe for summary judgment. It is a question of law as to whether or not there was a valid trust."

Appellants now claim that certain factual issues did exist, and that summary judgment was therefore not proper.

The mere fact that both parties to a lawsuit move for summary judgment does not, in and of itself, compel the court to grant summary judgment. If material questions of fact...