Woods' Trust Estate, In re

• Decision Date: 11 May 1957
• Docket Number: No. 40469,40469
• Citation: 311 P.2d 359,181 Kan. 271
• Parties: In the Matter of the TRUST ESTATE OF Harry L. WOODS, Deceased. Catherine BILLINGS, Individually and as Co-Trustee of the Estate of Harry L. Woods, Deceased, Appellant, v. O. H. SANNER, Co-Trustee, The City of Wellington, and Wellington Foundation, Inc., Appellees.
• Court: Kansas Supreme Court

Page 359

311 P.2d 359

181 Kan. 271

In the Matter of the TRUST ESTATE OF Harry L. WOODS, Deceased.

Catherine BILLINGS, Individually and as Co-Trustee of the Estate of Harry L. Woods, Deceased, Appellant, v. O. H. SANNER, Co-Trustee, The City of Wellington, and Wellington Foundation, Inc., Appellees.

No. 40469.

Supreme Court of Kansas.

May 11, 1957.

Syllabus by the Court.

1. The record in an action to construe a testamentary trust commenced in the probate court and transferred to the district court by a beneficiary who is also a co-trustee to determine the beneficial interest provided therein and requesting direction of the court for administration of the trust established in the will of a testator, an active civic leader, lawyer, and newspaper editor, who had personally drawn his own will, examined, and it is held: The trial court erred in holding that a previous order of final settlement made by the probate court, whereby only the legal title to the assets of testator's estate were assigned to three co-trustees to carry out the terms of the will, was res judicata to the present action.

2. In trust matters a court retains jurisdiction to manage the trust and control the trustees, and the probate code empowered the probate courts of Kansas with equity jurisdiction.

3. When a trustee has real doubts to be solved, he not only may, but for his own protection should, seek the court's guidance.

4. The condition of the present will '* * * that if and when my said daughter's personal funds become depleted * * *' was too narrowly construed by the trial court because the intention of a testator must be determined from the whole will--from the four corners of the instrument--and it must be recognized that testator was fully cognizant of the legal, as well as the grammatical, significance of the terms used in his will.

5. Deplete is often used as thought it implied merely a reduction in numbers, in quantity, or the like; discriminating writers or speakers, however, employ it only when they wish to suggest the potential harm of such a reduction or the impossibility of restoring what has been lost before such consequences are evident.

6. When the terms of a will are explicit, there is no need for further rules of construction to determine the intention of the testator.

7. The very idea of a life estate presupposes a fee existing elsewhere than in the life tenant.

8. The rule against perpetuities governs both legal and equitable interests.

9. No remainder will be construed to be contingent which may, consistently with the words used and the intention expressed, be deemed vested and courts are inclined toward a construction favorable to the early vesting of an estate but there must necessarily be a vesting within the limits of the rule against perpetuities.

10. An estate vests in possession when there is an accrued, fixed and indefeasible right to present enjoyment, while an estate vests in interest when there is a present accrued, fixed and indefeasible right to enjoyment at a future time.

11. A vested interest does not necessarily include a right to possession and if the title is vested, the interest is not subject to the rule against perpetuities however remote may be the time when such interest may come into possession.

12. The record is further examined, and it is held, the trial court correctly concluded there was a valid gift over in the category of a general and public charitable trust which vested in the citizens of Wellington.

Howard T. Fleeson and Wayne Coulson, Wichita, Homer V. Gooing, Paul R. Kitch Dale M. Stucky, Donald R. Newkirk, Robert J. Hill, Gerrit H. Wormhoudt, Theodore C. Geisert, and Philip Kassebaum, Wichita, on the briefs, for appellant.

W. M. Ferguson and Ford Harbaught, Wellington, for appellees.

ROBB, Justice.

This action to construe a testamentary trust was commenced in the probate court and transferred to the district court where an order of construction of the trust was made, from which order a co-trustee, who is also a beneficiary of the trust, has appealed.

The first question to be solved on appellate review is whether an order of final distribution made and filed by the probate court on July 31, 1951, was res judicata to the action which is now before us. That order was made as a result of an application therefore filed by Ellis M. Carr, who was then the executor of the estate of the testator. In the opinion of the trial court the order of final distribution was res judicata because of the rule against perpetuities, which rule we will hereinafter discuss.

The order of final distribution made by the probate court substantially set out that Catherine Billings and Frances Woods, who were the only heirs at law of Harry L. Woods, deceased, and were also devisees, legatees, and trustees under his will, had waived notice of hearing on the application of the executor; that certain personal and real properties were found to be assets of the testator's estate; the court construed the will and found that the testator gave, devised and bequeathed his entire estate to Ellis M. Carr, Frances Woods, and Catherine Billings as trustees, and to their successors in trust, with such duties, limitations and directions as were set forth in the will; the court found there was no further business to transact in the administration of the estate and final distribution should be ordered; that all personal and real properties were vested in Ellis M. Carr, Frances Woods, and Catherine Billings, as trustees of the estate of the testator, and the executor was to be discharged when, as directed, he had assigned all the assets of testator's estate to such trustees.

It is undisputed that this order was a proper exercise of power by the probate court at the time. While it is true that the probate court in its order used the word 'construe', it is also quite apparent the only construction made of the will was that legal title to the assets of the testator's estate was vested in the trustees with such duties, limitations and directions as were set forth in the will.

There were certain equitable life estates carved out of the assets of the testator's estate, which will be discussed later in more detail. No one contends that the trusts created for Frances Woods and Catherine Billings during their respective lives were invalid. It will be seen that Frances was testator's widow and Catherine was their daughter. We find a very similar trust provision in the case of Beverlin v. First National Bank, 151 Kan. 307, 98 P.2d 200, 155 A.L.R. 688, where a trust for the benefit of testator's daughters for life was held to be a valid trust even though a later provision for the benefit of granddaughters who attained the age of twenty-five years was held to be void because it was in contravention and violation of the rule against perpetuities.

Appellees contend that the order of the probate court finally and for all purposes construed the entire will and since no appeal was taken therefrom that such order was res judicata to this action by Catherine, one of the co-trustees, for direction as to how to proceed, and by her individually as beneficiary to determine her rights as such. We can find nothing in the order of final distribution made and entered by the probate court that went beyond the vesting of legal title to the assets of testator's estate in the trustees as above stated.

To be more specific as to what Catherine is seeking, her petition in substance asks for a determination of her beneficial interest, as an individual, and for clarification and directions of the court as to the duties and obligations of the trustees, and of her duties and obligations as a co-trustee, in executing the provisions of the testamentary trust.

At this point we should explain that the will provided for the appointment of a successor to Ellis M. Carr, co-trustee, now deceased, and O. H. Sanner was subsequently appointed. The will further provided that no successor was to be appointed upon the death of either Frances or Catherine. In other words, there were three original trustees but ultimately there will be only one. Frances died July 13, 1954, and the trust for her benefit and her tenure as trustee have, of course, expired. This leaves us with only Catherine and Sanner as to-trustees and a controversy exists between them as to the meaning of the provisions of the testamentary trust subsequent to the death of Frances.

In our opinion the trial court incorrectly determined the issue of res judicata because in trust matters a court retains jurisdiction to manage the trust and control the trustees. G.S.1949, chapter 59, article 16; In re Estate of Lowe, 155 Kan. 679, 687, 127 P.2d 512; 2 Bartlett's Kansas Probate Law and Practice, rev. ed., § 932. The probate code enacted by the legislature in 1939 empowered the probate courts of Kansas with equity jurisdiction so that under the general rule such courts have a capacity equivalent to a universal trustee. Jurisdiction may be exercised by the probate court over the administration of a trust upon an application of a trustee for guidance where necessary for his protection. On such proper application a trustee may ask directions of a court as to the construction of a trust instrument, as to the proper method of administration of the trust--if construction thereof is difficult--or as to what persons are entitled to the benefits. Where a trustee has real doubts to be solved he not only may, but for his own protection should, seek the court's guidance. (54 Am.Jur., § 276 et seq., pp. 219-224.)

This court has previously passed on the question of the jurisdiction of the probate court and its power to supervise trust estates under our present probate code. In In re Estate of Porter, 164 Kan. 92, 187 P.2d 520, it was said:

'The new Kansas Probate Code (G.S.1945 Supp., ch. 59, art. 3) not only specifically confers jurisdiction upon the probate courts to administer trusts but makes ample...