Schneider v. Schneider

Decision Date09 July 1932
Docket Number30283.
Citation12 P.2d 834,135 Kan. 734
CourtKansas Supreme Court

Syllabus by the Court.

Theory of "equitable conversion" is fiction invented in equity to promote justice in carrying out purposes of testator or settlor when necessary.

Facts disclosed held to show no reason for application of doctrine of equitable conversion at time legatee mortgaged undivided interest in realty.

Under will directing executor to sell property and distribute proceeds, legatee held privileged to elect whether to claim interest in realty or in proceeds.

Legatee having mortgaged undivided interest in realty, where will directed sale and distribution of proceeds, elected to claim undivided interest.

Legatee having mortgaged interest in realty under will, and where mortgage was foreclosed, held estopped to contend he had no mortgageable interest.

1. The theory of equitable conversion by which, for certain purposes, real estate is considered as personal and personal estate as real, and transmissible and descendable as such, is a fiction invented by courts of equity to promote justice in carrying out the purposes of the testator or settlor when such a theory is necessary to accomplish that purpose. It should not be applied when the necessity for it does not exist.

2. A testator by his will nominated executors, gave them possession of the real and personal property of which he died possessed, directed them to sell it, and, after taking certain advancements into consideration, erecting a monument and providing for the care of the cemetery and paying a specific bequest, to distribute the proceeds among his children and grandchildren as it would have gone under the law of descent. After these specific things had been done one of the sons, claiming to be an owner in fee of an undivided interest in unsold real estate, mortgaged the same to secure a debt, the mortgage was foreclosed, and his asserted interest in the property sold, for which he got credit on his debt. Held: (1) At the time he made the mortgage there was no reason for applying the doctrine of equitable conversion; (2) under the circumstances then existing he was privileged to elect whether to claim his interest in the land or in the proceeds, if such election did not affect adversely the rights of others having an interest in the property; and (3) he did elect to claim his interest in the land.

3. Under the facts stated in the preceding paragraph, and more fully in the opinion, he was estopped from contending that he had no mortgageable title or interest in the property.

Appeal from District Court, Nemaha County; C. W. Ryan, Judge.

Proceedings in the matter of the estate of Mathias Schneider, deceased. From a judgment of the district court, on appeal from the probate court, approving the final account of Peter A Schneider and Anna M. Stallbaumer, executor and executrix the objector, Karl M. Schneider, appeals.

Judgment affirmed.

C. Oakley McIntosh and C. J. Evans, both of Topeka, for appellant.

R. M. Emery, Jr., of Seneca, and Bennett R. Wheeler, S. M. Brewster, John L. Hunt, Virgil V. Scholes, and Margaret McGurnaghan, all of Topeka, for appellees.


This is an appeal from an order, first, of the probate court, and on appeal of the district court, approving the final account of executors. From the record before us, including the findings made by the trial court, the facts may be stated briefly as follows: Mathias Schneider, a resident of Nemaha county and the father of the appellant here, died May 30, 1922. He left personal property of the value of $7,000, a farm of 320 acres, and a residence property in Seneca. At the time of his death he was a widower; his wife's death having preceded his. He left five living children and nine grandchildren who were the children of his deceased daughter, Jennie Kolzer. He left a will providing that his executors should take possession of all the property of which he died possessed and directing that his executors should proceed to sell and dispose of all his property, both real and personal, as soon as in their judgment the interest of the estate would permit, giving to them full power and authority to sell and convey the property, at either public or private sale, and on such terms and conditions as to them seemed best. The will contained provisions for dividing household effects without regard to value, for taking certain advancements into consideration, and for a monument and the care of the cemetery, none of which are important here. He gave to the children of his deceased daughter, Jennie Kolzer, the sum of $10,000 in money, to be equally divided among them. The will then provided that the balance of the proceeds of the estate should be divided equally among his five living children and a sixth interest to the children of his daughter Jennie, and, if any of his other children be deceased at the time of distribution, then his or her share should go to the children of such deceased, and, if no children, then to their legal heirs. A son Peter A. and a daughter Anna M. were appointed as executor and executrix.

Soon after the death of Mathias Schneider and the will was admitted to probate, the executors sold the residence in Seneca and with the proceeds thereof, and of the personal property, paid all debts and costs of administration and paid the $10,000 to the children of Jennie Kolzer. Thereafter they sold 160 acres of the farm and distributed the proceeds as provided by the will. This left 160 acres of the farm unsold.

In August, 1926, one of the sons, Karl M. Schneider, the appellant here, and his wife, executed to a bank at Seneca their note for $8,600, renewing an indebtedness then due the bank, and to secure the same gave to the bank a mortgage on an undivided one-sixth interest in the 160 acres last above mentioned and another 120 acres owned by them. The debt secured by this mortgage became due and was unpaid, and in October, 1928, the bank brought an action on the note and to foreclose the mortgage. In that action Karl M. Schneider and his wife filed an answer admitting the execution of the note and mortgage, and alleged, among other things, "that defendant Karl M. Schneider is the owner of the fee simple title in and to the real estate described," and asked the court to provide in its decree that the real estate should be sold in separate tracts, "and that defendant Karl M. Schneider should be adjudged and decreed the right to redeem the whole or either separate tract thereof within eighteen months from the date of the sale thereof, as provided by law." In December, 1928, in that action the bank recovered a judgment against Karl M. Schneider and wife for $6,034.30, being the balance due on the $8,600 note, and that the same was a first lien upon the undivided one-sixth interest of Karl M. Schneider in the 160 acres of land above mentioned (also to be a lien on the 120 acres). The court adjudged the equity of redemption, as provided by law, to be in Karl M. Schneider and wife, and fixed the period of redemption at eighteen months. In due time the property was sold under this judgment. The one-sixth interest of Karl M. Schneider in the 160 acres in question was bid in by the bank for $3,000. The sale was confirmed by the court, and, after the payment of costs and taxes, a credit of $2,790.48 was made on the judgment in favor of the bank, and a certificate of purchase for the undivided one-sixth interest of Karl M. Schneider in the 160 acres in question was executed to the bank. Karl M. Schneider never redeemed from that sale. He did pay the balance of...

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