Woolums v. Simonsen

• Decision Date: 11 May 1974
• Docket Number: No. 47265,47265
• Citation: 214 Kan. 722,522 P.2d 1321
• Parties: Marlene Lou WOOLUMS, Appellant, v. Cecily Ann Walker SIMONSEN et al., Appellees.
• Court: Kansas Supreme Court

Page 1321

522 P.2d 1321

214 Kan. 722

Marlene Lou WOOLUMS, Appellant, v. Cecily Ann Walker SIMONSEN et al., Appellees.

No. 47265.

Supreme Court of Kansas.

May 11, 1974.

Syllabus by the Court

1. A motion by the defendant to dismiss the plaintiff's petition for failure to state a claim upon which relief can be granted under K.S.A.1973 Supp. 60-212(b)(6) may be made by motion for judgment on the pleadings after responsive pleading is filed by the defendant.

2. When a motion to dismiss under K.S.A1973 Supp. 60-212(b)(6) raises an issue concerning the legal sufficiency of a claim for relief, the question must be decided from the well pleaded facts of the plaintiff's petition. The motion in such case must be treated as the modern equivalent of a demurrer. Disputed issues of fact cannot be resolved or determined on a motion to dismiss such as this, and the question for determination is whether in the light most favorable to the plaintiff, and with every doubt resolved in the plaintiff's favor, the petition states any valid claim for relief.

3. Under K.S.A. 60-1002(a) an action may be brought by any person claiming title or interest in personal or real property against any person who claims an estate or interest therein adverse to him for the purpose of determining such adverse claim.

4. Under the declaratory judgment statute, K.S.A. 60-1701, when a petition alleges a controversy involving the interpretation of a will, the controversy may be determined in a court of record having jurisdiction over the matter, whether or not consequential relief is, or at the time could be, claimed.

5. As a general rule the courts will not give a construction to or declare the rights of parties upon a state of facts which has not arisen, nor upon a matter which is future, contingent, and uncertain, unless a present right depends upon the decision or there are other special circumstances to satisfy the court that it is desirable at once to decide on the future rights.

6. A remainder interest in real property which is subject to a prior life estate, even though contingent upon the remainderman or her children surviving the life tenant, is a property right or interest which can be sold.

7. Where the will of a foreign decedent devises land located in Kansas, title to the land must be derived according to the law of the place where the land is situated; but the law of the testator's domicile may throw light on his intention.

8. Adopted minor children in Kansas are entitled to the same rights of person and property as children or heirs-at-law of the person adopting them.

John Callahan, Wichita, argued the cause, and was on the brief for the appellant.

Richard W. Holmes, of Holmes, Darrah & Mellor, Wichita, argued the cause, and Tyrus C. kaufman, Wichita, was with him on the brief for the appellees.

SCHROEDER, Justice:

This is an appeal from an order of the trial court dismissing the plaintiff's action on the ground that it was filed prematurely.

T. O. Tanton, a resident of the State of Illinois, died testate on the 15th day of May, 1914, leaving a last will and testament dated April 22, 1911 and a codicil thereto dated May 3, 1911. T. O. Tanton had been a longtime resident of the State of Illinois and was a resident of Illinois at the time of the execution of his will and codicil and at the time of his death. He was never a resident of the State of Kansas. His will and codicil were duly admitted to probate in the Probate Court of Sedgwick County, Kansas, because it affected a considerable amount of real property in the State of Kansas owned by the decedent. Paragraph 6th of the last will and testament of the decedent, T. O. Tanton, provides:

'6th. I give and devise to my grand-daughter Elizabeth Ruth Wilson for life the following described land in Sedgwick County, viz:

'The Southeast Quarter of Section Twenty-nine and the Northeast Quarter of Section Thirty-two all in Town Twenty-seven Range Two West, The Northeast Quarter of Section Twenty-five, The East Half of the Southwest Quarter of Section Thirty-six and the West Half of the Southeast Quarter of said Section Thirty-six all in Town Twenty-seven Range Three West, the Northwest Quarter of Section Six and the Southwest Quarter of Section Twenty-one and the West Half of the Southeast Quarter of Said section twenty-one all in Town Twenty-eight Range Two West, the Northeast Quarter of Section One and the Southeast Quarter of said Section Twelve in Town Twenty-eight Range Three West, all of said land being in Sedgwick County, in the State of Kansas, to have and to hold the same for and during her natural life and at her death to pass to her children in equal shares, and if any child of hers is then dead the descendants of such child to take the share such deceased child of hers would have taken if then alive. In case she, said Elizabeth Ruth Wilson shall die leaving no children or descendents of children surviving her, then said real estate devised to her shall pass and go to my children, Edna Bally, John O. Tanton, Edith Tanton and Thomas Otto Tanton in equal parts and if any one of them is then dead, the share of such deceased one shall go to the lineal descendants of deceased one, but if such deceased one leaves no lineal descendants then the share such deceased one would have taken if alive, shall go to the remaining of said four children of mine, or their descendants.' (Emphasis added.)

The plaintiff, Marlene Lou Woolums (appellant), in her petition alleged she is the adopted daughter of Elizabeth Ruth Wilson, now Elizabeth Ruth Axe, the granddaughter of T. O. Tanton named in the will of T. O. Tanton. She further alleged that she has two children, namely Robert Michael Fitch, an adult, and Albert Bell Woolums, III, a minor. The plaintiff alleged her remainder interest to be contingent upon her surviving Elizabeth Ruth Axe, her mother, and that if she did not survive her mother then such remainder interest would pass to her children, Robert Michael Fitch, Albert Bell Woolums, III and any future child of plaintiff.

The plaintiff further alleged that she and her said two children have a salesable interest in the above described real estate and desire to effect a sale, but that 'they have been prevented from making such sale because of a cloud on title to said real estate caused by claims of ownership, contingent and otherwise, by the defendants' who are the lineal descendants of T. O. Tanton deceased, 'some of whom have asserted plaintiff can never take as a remainderman.'

The plaintiff further alleged that she is the primary source of support for her parents, Elizabeth Ruth Axe and M. P. Axe, both 73 years of age, who are without funds, and the only means available to enable the plaintiff to discharge her moral obligations is to sell her remainder interest in the above described property.

The plaintiff alleged a previous action by Elizabeth Ruth Axe against those persons having contingent remainders in the above described real property, being case No. A-52177 in the District Court of Sedgwick County, Kansas, brought for the purpose of the appointment of a trustee to lease the contingent remainder interests for oil and gas. In that proceeding, she alleged, the issue was raised as to whether the plaintiff would be prevented, by virtue of her being an adopted daughter of Elizabeth Ruth Axe, from succeeding to the ownership of the above described real property upon the death of Elizabeth Ruth Axe. The petition recites a portion of the court's decree in case No. A-52177, indicating that the court considered it neither necessary nor wise to determine the interest of the plaintiff in the above described real estate at that time.

The plaintiff then alleged: '. . . (T)hat nothing in said Case A-52177 prohibits her from obtaining the judicial relief prayed for in this petition.

'10. That plaintiff is entitled to have the Court construe said will and decree that she has a present remainder interest in said real estate and will take as a child of said Elizabeth Ruth Axe under the terms of said will provided she survives her and if she predeceases said Elizabeth Ruth Axe, then in such event under the terms of said will the children of plaintiff will take as remaindermen. That plaintiff is entitled to have title to her remainder interest in said real estate quieted as against all defendants.

'11. This action has all the prerequisites of a class action as set forth in K.S.A.1972 Supp. 60-223.

'WHEREFORE, plaintiff prays for judgment and decree that she has a remainder interest as aforesaid in and to the above-mentioned tracts of real property under the Last Will and Testament of T. O. Tanton, deceased, and that her title to said remainder interests be quieted as against all defendants. Plaintiff further prays judgment for her costs and for such other and further relief as to the Court may seem just and equitable.'

The defendants answered denying all allegations of fact in the plaintiff's petition except allegations with reference to the named defendants and their relationship to T. O. Tanton, deceased.

Thereafter the defendants filed a motion for judgment on the pleadings:

'. . . (F)or the reason that the plaintiff's petition filed herein fails to state any cause of action against the defendants or any of them. In support of said motion, defendants state that plaintiff's petition herein shows affirmatively that plaintiff's cause of action is premature and nonexistent at the present time, in that plaintiff's interest in said property, if any, which interest is denied by the defendants, is purely a contingent remainder which may never come into existence and that said petition seeks to have the Court make a determination which may never be operative and which may never be required.'

The trial court after hearing the motion dismissed the action on the ground that it 'is premature in that there is no issue to be determined by the Court at this time.'

Counsel for the...