Windscheffel v. Wright

• Citation: 360 P.2d 178,89 A.L.R.2d 636,187 Kan. 678
• Decision Date: 04 March 1961
• Docket Number: Nos. 42049,42,050,s. 42049
• Parties: , 89 A.L.R.2d 636 Arno WINDSCHEFFEL, as Special Administrator of the Estate of Charles M. Post, Deceased, Muriel Post Jeakins, May Post, Walter Maxwell, William Faulhaber, Sr., Opal Orrison, Wilma Faulhaber Wishart, William Faulhaber, Jr., Edgar Post, Linnie Post Kendrick, Roy Post, Harry Post, Esther Post and Daisy Post Tuxhorn, Appellees, v. S. J. WRIGHT, Charles C. Goodale, Leo Goodale, Charles C. Goodale, as Administrator de bonis non of the Estate of Charles M. Post, Deceased, Ulana Novak, Jean Storer, L. Dean Post, Della Post, Lily Post, and Maxine Tucksen (S. J. Wright, Charles C. Goodale, Leo Goodale, Charles C. Goodale, as Administrator de bonis non of the Estate of Charles M. Post, Deceased, Appellants), Appellants.
• Court: United States State Supreme Court of Kansas

Page 178

360 P.2d 178

187 Kan. 678, 89 A.L.R.2d 636

Arno WINDSCHEFFEL, as Special Administrator of the Estate of Charles M. Post, Deceased, Muriel Post Jeakins, May Post Walter Maxwell, William Faulhaber, Sr., Opal Orrison, Wilma Faulhaber Wishart, William Faulhaber, Jr., Edgar Post Linnie Post Kendrick, Roy Post, Harry Post, Esther Post and Daisy Post Tuxhorn, Appellees, v. S. J. WRIGHT, Charles C. Goodale, Leo Goodale, Charles C Goodale, as Administrator de bonis non of the Estate of Charles M. Post, Deceased, Ulana Novak, Jean Storer, L. Dean Post, Della Post, Lily Post, and Maxine Tucksen (S. J Wright, Charles C. Goodale, Leo Goodale, Charles C. Goodale, as Administrator de bonis non of the Estate of Charles M. Post, Deceased, Appellants), Appellants.

Nos. 42049, 42,050.

Supreme Court of Kansas.

March 4, 1961.

Syllabus by the Court

1. The relation of a life tenant to a remainderman or reversioner is frequently termed that of a trustee or quasi trustee. The life tenant is a trustee in the sense that he cannot injure or dispose of the property to the injury of the rights of the remainderman but he differs from a pure trustee in that he may use the property for his exclusive benefit and take all the income and profits.

2. A power of sale is not property, but is a personal authority and is not inconsistent with a life estate, nor does its existence enlarge a life estate into a fee, or change the relation to the remaindermen.

3. A life tenant with power to sell real property devised to her for life with remainder to designated persons, is a trustee or quasi trustee and occupies a fiduciary relation to the remaindermen, and in the exercise of that power, she owes to them the highest duty to act honestly and in good faith by selling the property to a bona fide purchaser for the best price offered.

4. A trustee fiduciary as described in paragraph 3 of the syllabus cannot legally buy the property at his own sale, and if the purchaser is his or her spouse, the purported sale is as void as though it were made to the trustee fiduciary himself, and the non-existence of fraud and the payment of full consideration will not validate the purchase, following Frazier v. Jeakins, 64 Kan. 615, 68 P. 24, 57 L.R.A. 575.

5. The recording of a deed executed by a trustee fiduciary as described in paragraph 3 of the syllabus, purporting to sell and convey the property to her husband in fee simple, and of his deed purporting to reconvey back to her in fee, does not impart notice to the remaindermen nor give knowledge that their remainder interest is being held or claimed adversely by the life tenant.

6. Where a special administrator seeks to bring the remainder interest of property devised by the testator's will into the administration of his estate so that designated remaindermen may be placed in possession thereof in accordance with his will, the jurisdiction of such action is not in the probate court but in the district court or other court of competent jurisdiction, following In re Estate of Weaver, 175 Kan. 284, 262 P.2d 818.

7. The record in an action commenced in the district court to cancel and set aside a deed executed by a life tenant in 1936 to her husband under a power of sale annexed to the life estate and his deed reconveying the real property to the wife in fee, is examined and it is held: the district court did not err in overruling the defendants' demurrers to the plaintiffs' petition.

A. W. Relihan, T. D. Relihan and T. E. Relihan, Smith Center, were on the briefs for appellant Charles C. Goodale, as administrator de bonis non of the estate of Charles M. Post, Deceased.

Geo. E. Teeple and Robert H. Meyer, Mankato, were on the briefs for appellants S. J. Wright, Charles C. Goodale and Leo Goodale.

Arno Windscheffel, Smith Center, Douglas Hudson, Howard Hudson and Douglas G. Hudson, Fort Scott, were on the briefs for appellees, and Lily Post and Maxine Tucksen, appellees.

Dallas Cordill, Osborne, was on the briefs for Ulana Novak, Jean Storer, L. Dean Post and Della Post, appellees.

FATZER, Justice.

The appellees, who are the special administrator of the estate of Charles M. Post, deceased, and thirteen of the remaindermen designated in the decedent's will, commenced this action in the district court of Smith County to set aside certain deeds executed by Evaline Post Wright, the life tenant, and by her husband, S. J. Wright, upon the theory that the conveyances were violative of the power of sale given the life tenant and constituted a fraud upon the remaindermen. Six other remaindermen were named defendants but since they joined with the plaintiffs in opposing the appellants' demurrers to the plaintiffs' petition, reference is hereafter made to the plaintiffs of record and those six defendant remaindermen as the plaintiffs. The defendants Charles C. Goodale and Leo Goodale, who were also remaindermen, S. J. Wright, and Charles C. Goodale as administrator de bonis non of the estate of Charles M. Post, deceased, are hereafter referred to as the defendants, or as appellants, having appealed from the district court's order overruling their demurrers to the plaintiffs' petition.

Pertinent portions of the petition are summarized and quoted: Charles M. Post died testate on August 3, 1929. At the time of his death he owned cerain real estate in Smith County among which was an undivided 7/9ths interest in 320 acres of land, the property here in controversy, which had a reasonable and fair market value of $14,000. His sister, Evaline Post, owned the other undivided 2/9ths interest in the same property.

The decedent's will was admitted to probate in Smith County. Evaline was named as executrix and having qualified, duly administered the estate which was closed on August 11, 1930. It is noted that the title to the real estate was unaffected by the probate proceeding since the probate court then had no power or authority to adjudicate title to real property (Cessna v. Carroll, 178 Kan. 650, 654, 655, 290 P.2d 803, 58 A.L.R.2d 291).

The second paragraph of the decedent's will bequeathed the income from all his personal property to Evaline for her lifetime with power to sell such portion as might be necessary for her care and comfort. She was also empowered to invest all monies which the testator died owning and all proceeds from the sale of personal property, if sold under the power of sale, in such manner as might seem to her to be for the best interests of the decedent's estate. Upon Evaline's death the remainder in the personal property was bequeathed to the living issue of the decedent's two brothers, Wilbert Post and Alonzo Post, and to the living issue of his two sisters, Emaline Goodale and Evaline Post, should she have any, share and share alike, but should any of the issue of his brothers and sisters be deceased leaving issue then the share that such deceased one would receive, if living, should go to his issue, share and share alike.

The third paragraph of the will, which gives rise to this controversy, devised and bequeathed all the testator's interest in the real property which he and Evaline had an interest in (the land in controversy), to his sister, Evaline, for her lifetime, including the rents and profits arising from the property. The testator then devised the remainder of his interest in such property, if it had not been sold, to the living issue of his brothers and sisters as described in the second paragraph of his will. However, he specifically gave to Evaline 'power to sell the real estate in this Third paragraph of this my will and testament described whenever she shall see fit so to do,' but provided that the proceeds of any such sale should go to Evaline and be held by her and at her death, pass to the living issue of the two brothers and two sisters as provided in the second paragraph of the will.

The fourth paragraph of the will devised all other real property owned by the testator to his sister Evaline for her life with remainder in fee simple to the living issue of his two brothers and two sisters, making the same provision for the descent of the share of any deceased issue as provided in the second and third paragraphs of the will. As to the real property devised by the fourth paragraph, no power of sale was given to Evaline.

After the death of the testator, Evaline married one S. J. Wright, on a date not disclosed by the record. On January 2, 1936, she conveyed the undivided 7/9ths interest in the real estate in question to her husband. The deed was recorded in Smith County on January 2, 1936, and recited a consideration of $8,711.08 and United States Revenue Stamps were affixed. In the deed itself appeared the following: 'undivided 7/9 interest belonging to Charles M. Post at the time of his death and in which the grantor herein has a life estate with power of sale in and to (describing the land), this sale being made on the best judgment of the grantor and in pursuance of authority and power given her in the will of Charles M. Post, deceased, as of record and probate in the Probate Court of Smith County, Kansas.'

On May 29, 1936, some four months and 27 days later, S. J. Wright reconveyed the land in question to Evaline in fee simple. The deed was duly recorded in Smith County on the day it was executed and recited a consideration of $1 and a United States Revenue Stamp was affixed. Evaline Post Wright was specifically named as grantee. In the body of the instrument appeared the following: 'the undivided 7/9 interest owned by Charles M. Post at the time of his death and in which Evaline Post Wright had a life estate with power of sale in and to (describing the land).'

Evaline died testate on November 10, 1957, a resident of Freemont County, Iowa, and her estate was probated in that county. By the terms of her will she devised and bequeathed to her husband S. J. Wright the land in question (both 2/9ths and 7/9ths interests) for his life with remainder in fee...