Rathbun v. Hill
| Decision Date | 22 July 1960 |
| Docket Number | No. 41936,41936 |
| Citation | 187 Kan. 130,354 P.2d 338 |
| Parties | Lulu L. RATHBUN, Cleo R. Rathbun, Glen R. Rathbun, Bobby Dale Rathbun, Jack C. Rathbun, and Ruby F. Morganfield, Appellants, v. Helen Dale HILL, otherwise known as Helen D. Hill and formerly Helen Dale Rathbun and her husband, R. C. Hill; Anna Middleswart, otherwise known as Anna J. Middleswart; and Anna Juanita Middleswart, formerly Anna Juanita Rathbun, an unmarried woman, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In an action commenced by plaintiffs to quiet title, wherein defendants in their answer and cross-petition sought to quiet title, an ejectment, and an accounting, and made tender conditioned upon the result of the accounting, the record is examined and, as more fully refulected in the opinion, it shows that:
A testator devised a separate parcel of land to each of his seven children including a section to his son, H. R., for life with defendants as remaindermen. A mortgage had been executed thereon by and during the lifetime of the testator. Under this testator's will, two of his sons, M. M. and M. W., were named as executors and trustees with specific duties as trustees that included taking full charge of section 31, the land in question, and paying taxes, interest, annual payments to the testator's widow, or any other charge or lien against such section but as soon as the income from the section reimbursed any expenditures made by the trustees, possession of the section was to be returned to the one entitled thereto under the will. During the probate proceeding of the estate and for some time after the discharge of the executors, the testator's definite directions to his trustees were exercised and carried out but upon failure to pay or make other arrangements to prevent a foreclosure on section 31, the mortgage was foreclosed and at the public sale, M. M. bid in the property. In due course a sheriff's deed was issued to M. M. not as trustee, but personally, and filed of record by him. From the date of the sheriff's deed, M. M. withheld all income from section 31 although it had been totally or in part operated by him since the testator's death. M. M. died intestate and plaintiffs, as his only heirs, were awarded section 31 since it had been inventoried in the probate proceeding of his estate. Subsequently H. R. died terminating his life estate under the testator's will and trust, and the defendants in less than two years and during M. W.'s lifetime, sought and obtained the appointment of a successor trustee in the original probate proceeding of the testator's estate, and such successor trustee has by warranty deed conveyed section 31 to defendants.
It is held: M. M. and M. W. were voluntary trustees of a testamentary active and express trust; M. M. did not become the owner in fee simple by purchase or delivery of a sheriff's deed as a result of the public foreclosure sale; the testamentary express trust has not been terminated or repudiated by either trustee; M. W. was a surviving successor trustee after M. M.'s death; the statute of limitation did not bar defendants' cause of action, and the trial court did not err in its judgment.
2. A trustee named in a deed or will always had the election of accepting or rejecting the trust.
3. While there seems to be no duty on a trustee's part to express acceptance of a trust in a formal direct way, taking control of a trust property and performing any act with regard to such trust property or persons which could not lawfully be performed except as a trustee are strong evidence that the trustee has acquiesced in the trusteeship.
4. Where a will names the same persons executors and trustees, acceptance and qualification as executors implies acceptance of the trust as well because the duties of the two offices are closely related.
5. An active, not a passive, trust is created when a trustee has an express duty to make periodic payments to beneficiaries for life and the duty to make the trust estate produce an income, coupled with a further duty to preserve the estate from waste, to pay taxes, and conserve the property for the benefit of those lawfully entitled to receive the remainder estate upon its division after the termination of a life estate.
6. The general rule that executors, administrators, guardians, trustees, and functionaries of that general character may not traffic to their own private advantage in estates or properties towards which they have any official or moral responsibility is as much a principal of ethics and practical honesty as it is of law.
7. As more fully appears in the opinion, where a trustee, while acting in such a fiduciary capacity as is set forth in the next preceding paragraph, undertakes to purchase for himself at a public sale a fee simple title to a property of the trust, he is not an innocent purchaser and does not have the capacity to obtain such fee simple title.
8. If a voluntary trustee does not repudiate the trust but continues to act under and in harmony with it, the beneficiaries have no right of action against him and the statute of limitation must remain inoperative until the trust is repudiated.
9. Every sale, conveyance or other act of a trustee in contravention of a trust shall be void. (G.S.1949, 67-405.)
Lee Hornbaker, Junction City, and George D. Miner, Ellsworth, argued the cause, and Paul L. Aylward, Ellsworth, was with them on the briefs for appellants.
John V. O'Donnell, Ellsworth, argued the cause, and Sidney J. Brick, Fred A. Beaty, W. A. Bonwell, Jr., Yale W. Gifford, and Richard Rumsey, Wichita, and V. E. Danner, Ellsworth, were with him on the briefs for appellees.
This is an appeal from the judgment of the trial court quieting title in the defendants to a certain section 31 of land in Ellsworth county (hereafter more fully described), barring plaintiffs from claiming ownership of such land, and overruling plaintiffs' motion for new trial.
In an effort to make clear how the present parties are related to George R. Rathbun, testator, and the provisions of his will here involved, we set out the following diagram designating them by their first names:
his wife
Lulu, widow
Cleo
tract C to M.M. Glen plaintiffs-
sons
life estate Bobby appellants
executor and trustee Jack
by George's will Ruby, daughter
George's specific bequests to his four other children are not of concern here.
George died on April 10, 1925, leaving as his survivors Mary, his wife, and their seven children, as indicated. George's will devised specific land bequests to each child who was required to pay the taxes, any mortgages, liens, or other claims against his particular land. None of the land devised to one child would be liable for debts against the land of any other child. The children were to make a definite annual payment of fifty cents per acre on all the land to Mary during her lifetime.
The trial court made very comprehensive and complete findings of fact and pertinent portions thereof will be set out. The parties agreed upon and stipulated to the facts as to certain detailed matters reflected in the following findings:
The action was commenced on September 20, 1956. The land in controversy which was the subject of the action was all of section 31, township 16, south of range 8, west of the 6th P.M. in Ellsworth county. Prior to his death on April 10, 1925, George owned the land and thereafter his will was admitted to probate in the probate court of Ellsworth county. M. M. and M. W. were appointed and duly qualified, and letters testamentary were issued to them as executors of the will. On June 12, 1926, the estate was closed and said executors were discharged.
After April 10, 1925, M. M. occupied, cultivated and farmed approximately forty of the 640 acres of land as a tenant of the life tenant, H. R., until September 21, 1932, and thereafter he paid no rent to anyone on the forty acres and continued in possession until his death.
Until the fall of 1929, the other 600 acres consisting of pasture were rented to C. A. Gregory for $600 a year which was paid to George prior to his death and on September 28, 1926, was paid to George's estate. Thereafter and on the dates of October 27, 1927, October 9, 1928, and October 24, 1929, the rent was paid to M. M. From October 24, 1929, until September 21, 1932, M. M., as a tenant of H. R., the life tenant, occupied the 600 acres of pasture and after September 21, 1932, M. M. paid no rent to anyone and continued in possession thereof until his death.
On December 11, 1923, George and Mary, his wife, had executed a first mortgage on the land to secure the payment of their note of $3,000 which existed and remained unpaid of record as a lien at George's death. On May 15, 1930, the mortgagee brought an action against Mary, and others, to foreclose the mortgage, which was foreclosed and the land was ordered sold to satisfy the judgment. At 2:00 p. m. on October 31, 1930, the sheriff at a public sale sold the land to M. M. for $3,401.17, a certificate of purchase was issued to him and the sale confirmed on November 22, 1930, with eighteen months for redemption granted. The land was not redeemed and on September 21, 1932, a sheriff's deed was issued to M. M.
On November 14, 1940, M. M. died intestate. Administration of his estate was duly had and completed in the probate court of Ellsworth county including the land in question which on April 3, 1942, was assigned and vested in the plaintiffs as M. M.'s heirs at law whereby plaintiffs in this action claim the land.
On December 8, 1931, Helen became twenty-one years of age and Anna did likewise on November 23, 1934. These defendants are the only...
To continue reading
Request your trial