Schnack v. The City of Larned
| Decision Date | 10 January 1920 |
| Docket Number | 22,479 |
| Citation | 106 Kan. 177,186 P. 1012 |
| Parties | MARTIN SCHNACK et al., Appellees, v. THE CITY OF LARNED et al. (A. M. MOFFET, as Executor, etc., Appellant) |
| Court | Kansas Supreme Court |
Decided January, 1920.
Appeal from Pawnee district court; ALBERT S. FOULKS, judge.
Affirmed.
SYLLABUS BY THE COURT.
1. WILL--Executors--No Interest in Residuary Estate. The provisions of a will examined, and held, that the executors of the will have no concern with the residuary estate devised therein to a city for a public purpose.
2. SAME--Residuary Estate--Devised to City for Public Purposes--Title in City. Where the entire annual income of a residuary estate is devised in perpetuity to a city for a public purpose, the legal effect of such a devise operates as a grant to the city of the entire estate, with limitation only as to its use.
3. SAME--Parties Interested in Residuary Estate--Compromise. Where there is no issue of fraud or bad faith, an executor of a will who has a personal interest as heir in the residuary estate, and who has no official concern with the residuary estate as executor, may lawfully join with other heirs in a compromise settlement with another claimant concerning the residuary estate.
4. SAME--Residuary Estate--Devised to City--Power of City to Compromise Contest. Where a city is named as the beneficiary of a residuary estate, and its right thereto is subjected to a contest by heirs of the testator, and where it appears that there may be reasonable grounds upon which to base the contest by the heirs, and no bad faith is apparent, the city may lawfully compromise its claim to the residuary estate especially when the compromise is to become effective only after it is submitted to and approved by the court.
5. SAME--Contest--State Has No Interest in Compromise. Ordinarily the state's law officer, its attorney-general or county attorney, has no special official concern in a city's compromise settlement of its claim to a residuary estate devised to the city for a public purpose.
H. S. Rogers, of Larned, Elrick C. Cole, and William Osmond, both of Great Bend, for the appellant.
W. H. Vernon, jr., of Larned, Chester I. Long, Austin M. Cowan, James G. Martin, and Claude I. Depuy, all of Wichita, for the appellees.
This was an action by certain heirs at law of the late Peter Schnack, of Pawnee county, to set aside the residuary clause of Peter's will on account of undue influence. The city of Larned is the beneficiary of the residuary clause. The plaintiffs and the city have effected a compromise, subject to the approval of the trial court, and the legality of that compromise and of the right of the trial court to approve or reject it are the questions involved in this appeal.
The plaintiff's petition alleged that at the time of making his will Peter Schnack was 76 years of age, in his dotage, infirm, decrepit, weak in both body and mind, and incapable of comprehending the terms and nature of the residuary clause, and that it was incorporated in the will because of undue influence of divers persons, etc. The other clauses of the will, which are not assailed, dispose of considerable property, and provide a number of substantial legacies to certain of his kindred by blood and marriage. Three executors are named by the will. They are directed to reserve and invest enough money out of his estate to produce an annual income of $ 15 to be used for improving and maintaining the family lot in Larned cemetery; and the executors are authorized to sell enough of Peter's real estate to pay specific legacies.
The residuary clause of the will which the plaintiffs attacked in this action reads:
The answer of the city of Larned joined issues on plaintiffs' petition. Two of the executors did not answer; and the third, A. M. Moffet, who is the appellant here, filed a general denial. Thereafter, the plaintiffs and the city of Larned effected a compromise and settlement of the controversy, subject to the approval of the trial court. Charley Schnack, who had been named as one of the executors, joined in this compromise with the plaintiffs, his coheirs-at-law. This compromise provided that the city of Larned should sell and assign all its interest in the property bequeathed by the residuary clause of Schnack's will for $ 25,000 in cash and certain lands and town lots in Larned which were to be devoted to park purposes by the city. A supplemental petition alleging this proposed settlement and setting up a copy of it, and praying for the trial court's approval thereof, was filed in the action. The defendant executor, Moffet, demurred to the supplemental petition. The trial court overruled this demurrer, and, without awaiting the trial court's approval or disapproval of the settlement, the defendant, Moffet, appeals.
Moffet contends that the residuary clause confers no title on the city of Larned, but that such title is in himself and his coexecutors; and that the compact between the city and the plaintiffs with whom his coexecutor, Charley Schnack, is associated, is void.
With these main contentions as a text, the argument for appellant proceeds. He first refers briefly to several propositions of law which are not disputed. Of course the executor has temporarily a qualified title to the personal property of a testator (Gen. Stat. 1915, § 4554), and if necessary for the proper discharge of his executorship, he may cause the real estate also to be subjected to his control and disposition. (Gen. Stat. 1915, § 4598 et seq.; Bank v. Haid, 97 Kan. 297, 155 P. 57.) Sometimes the executor is authorized by the will of the testator to sell real estate without the sanction of the probate court ( Bank v. Grisham, 105 Kan. 460, 185 P. 54). Here, however, the will itself specifically outlined the powers and duties of the executors. They were to pay the debts and funeral expenses of the deceased, pay the legacies bestowed by the will, provide a permanent fund to care for the family burial lot, and sell whatever real estate was necessary, if any, to pay the legacies provided by the will. Such are the powers and duties of the executors. Aside from these matters, the questions of law and fact involved in the action between the plaintiffs and the city of Larned do not affect the proper discharge of the duties imposed on the executors, and the appellant has no concern therewith.
Perhaps this opinion should close at this point; but the briefs of both parties indicate that the other points urged by appellant should be settled, so we will dispose of them.
We cannot agree with appellant's contention that the city of Larned has no title to the property bequeathed by the residuary clause of Schnack's will. But for the assault made upon it by plaintiffs, the city's title is complete. If the city does not hold the title, where is it? Certainly not in the executors. They have naught to do with the residuary estate. When the executors have paid the debts and bequests and created the small permanent cemetery fund, their duties will be functus officio--unless a trusteeship in perpetuity in them and their successors is created to manage the small fund to be provided to care for the burial lot, but we cannot determine that matter now. While the residuary clause does not in exact words confer title on the city, yet the entire income of the residuary property is devised in perpetuity to the city. In legal effect a gift or devise of the total income of property without limitation as to time operates as a grant of the entire estate. Sicut umbra sequitur corpus. This has been the law for centuries. Lord Coke said:
"But if a man seised of lands in fee by his deed [or will] granteth to another the profit of those lands, and to have and to hold to him and his heirs, . . . the whole land itself doth passe; for what is the land but the profits thereof; for thereby vesture, herbage, trees, mines, and all whatsoever parcel of that land doth passe." (1 Coke on Littleton, L. 1, C. 1, § 1 [4 b.])
"But there is no construction of words older or better settled than...
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