121 Kan. 312 | Kan. | 1926
The opinion of the court was delivered by
This action involved the construction of a will and the interests of certain persons concerned therewith, and the rights of certain persons holding under leases executed by persons acting in different capacities under questioned authority derived from the will.
The controlling facts were these: One D. D. Kellogg, late of Cowley county, died testate on January 19, 1918. His will was duly probated; his estate was settled and its administration closed. By his will the testator devised a life estate to his wife, Anna D. Kellogg. She died in November, 1918. The further terms of the will, with which we are presently concerned, relate to the interests conferred by the will upon two granddaughters of the testator, Vera Mable Davis and Pearl Bessie Bursack, and of a certain incompetent kinsman, Willie Kellogg, for whose welfare the testator made provision as follows:
“4. It is my further will and bequest that after the death of my said wife, Anna D. Kellogg, that my granddaughter, Vera Mable Davis, shall have and hold the northwest quarter of section 29, township 32, range 3' east of the 6th*314 p. M., and also the 27 acres I now own in the northwest quarter of section 29, township 32, range 3 east, all in Cowley county, Kansas, for and during her natural life, subject, however, to the conditions and provision that she and my other granddaughter, Pearl Bessie Bursack, shall be charged with the care and keeping and maintenance of Willie, commonly known as Willie Kellogg, so long as he may live, and should my said granddaughters fail to suitably maintain and care for said Willie Kellogg, or should he become a public charge, it is my will that upon the petition of any person to the district court of Cowley county, Kansas, with proof of such fact, that said court shall appoint some suitable person as trustee for said Willie, commonly known as Willie Kellogg, and such trustee shall have the right to receive the rents, income and profits from said real estate, and maintain and provide for the said Willie, so long as he may live.
“5. It is my further will and bequest, that the fee title to the real estate described in the preceding paragraph of this my will, upon the death of my said granddaughter Vera Mable Davis, and upon the death of said Willie, commonly known as Willie Kellogg, shall vest and become the property of the children born of the body of the said Vera Mable Davis, share and share alike.
“6. It is my further will and bequest, that after the death of my said wife, Anna D. Kellogg, that my granddaughter, Pearl Bessie Bursack, shall have and hold the following-described real estate in Cowley county, Kansas, to wit, all the property I own in what was originally known as blocks 40 and 41 in the old townsite of Kellogg, also all the property I own in the northwest quarter of section 21, township 32 south, of range 3 east of the 6th p. m., together with the appurtenances for and during the natural life of my said granddaughter, subject, however, to the condition and provision that she and my other granddaughter, Vera Mable Davis, shall be charged with the care, keeping and maintenance of Willie, commonly known as Willie Kellogg, so long as he may live, and should my said granddaughters fail to suitably maintain, provide and care for said Willie Kellogg, or should he become a public charge, it is my will that upon the petition of any person to the district court of Cowley county, Kansas, with proof of such fact, that said court shall appoint some suitable person as trustee for said Willie, commonly known as Willie Kellogg, and such trustee shall have the right to receive the rents, income and profits from said real estate, and maintain and provide for the said Willie so long as he may live.
“7. It) is my further will and bequest that the fee title to the real estate described in the preceding paragraph of this my last will and testament, upon the death of my said granddaughter, Pearl Bessie Bursack, and upon the death of the said Willie, commonly known as Willie Kellogg, shall vest and become the property of the children born of the body of the said Pearl Bursack, share and share alike.”
Pursuant to these provisions of the will the granddaughters, Mrs. Davis and Mrs. Bursack, on the death of their grandmother, entered into the enjoyment of their estates; and Mrs. Davis, at least, has hitherto complied in good faith with the obligation imposed by her
Later, the nature of her grandfather’s devise of the lands in section 29-32-3 became the subject of critical examination of lawyers, who concluded that the devise to Mrs. Davis from her grandfather was that of an estate tail, and that the ex parte proceedings in the district court and the guardianship proceeding in the probate court were superfluous and ineffective. Proceeding on the latter conclusion and advice of her counsel, Mrs. Davis executed a deed of general warranty conveying the property to her husband, so as to break the entailment. Her husband and she then executed a new lease of the same premises (NW1^, 29-32-3) to the same grantee, W. C. Stout. This lease was dated March 2, 1925, and like its predecessor was to endure until February 9, 1928, and thereafter upon conditions. , Following the execution of this lease and subject thereto, on the same date, the husband of plaintiff reconveyed the property by general warranty deed to Vera Mabel Davis, in fee simple.'
All these facts are stated at elaborate length in the pleadings of
The judgment of the trial court was incorporated in a journal entry covering some fifteen pages, and included therein are informal findings of fact, some of which were that at the time of the probating of her grandfather’s will, Vera Mable Davis had two- children, Karl and Frank, and after its probating another child, Herbert, had been bom to her, and at the time of the trial, July 7, 1925, she was forty-two years of age, and that Karl, Frank and Herbert were and are the sole and only children born of her body. Another finding reads:
“That pursuant to the terms of said will she and her sister, Pearl Bessie Bursack, have taken care of, kept and maintained Willie Kellogg up to the present time, and that the plaintiff is now caring for, keeping and maintaining him, and that within the last thirty days Pearl Bessie Bursack, defendant herein, has abandoned said Willie Kellogg, and is not at this time either caring for, keeping or maintaining said Willie Kellogg, or contributing thereto.”
In its findings and judgment the trial court also took note of the ex parte proceedings which Vera Mable Davis had instituted and in which she had been appointed trustee for any possible issue which might yet be born to her, and trustee also for Willie Kellogg, and took note, also, of the guardianship proceedings in the probate court, .and of the subsequent resignation of Mrs. Davis of such trusteeship and guardianship.
The trial court concluded that the will of her grandfather did not create an estate tail in Vera Mable Davis, and that she had no right to convert her interest in the devised property into an estate •fee simple. Other features of the findings and judgment will be noted later in so- far as they may need attention.
The errors assigned mainly question the correctness of the trial court’s decision that the will of D. D. Kellogg did not create an estate tail in his granddaughter, Vera Mable Davis. Unless the pro
“Estates tail resulting from judicial interpretation of the statute de donis conditionalibus (13 Edw. I, c. L, June 28, 1285) as modified by subsequent statutes and judicial decisions were introduced into this country at the time of its colonization with other parts of English jurisprudence, and still exist in this state.” (Syl. ¶ 1. See, also; Busey v. Stochhoff, 88 Kan. 729, 129 Pac. 1135; Wiggins v. Powell, 96 Kan. 478, 152 Pac. 765; Bryant v. Flanner, 99 Kan. 472, 162 Pac. 280; Grossenbacher v. Spring, 108 Kan. 397, 195 Pac. 884; Gardener v. Anderson, Trustee, 114 Kan. 778, 227 Pac. 743, and 116 Kan. 431, 227 Pac. 743; Allen v. Pedder, 119 Kan. 773, 241 Pac. 696; Huls v. Gafford Lumber & Grain Co., 120 Kan. 209, 243 Pac. 306.)
And since this court has repeatedly explained how easily estates tail may be converted into estates in fee simple to serve the necessity or convenience of the parties concerned and on the initiative of those parties, the legislature has been content to refrain from transforming such estates into estates in fee simple by legislative decree —as so many states have done — following the lead of the state of Virginia in its act of October 7, 1776. (2 Va. Code [1887] § 2421.) Nor can there be any doubt that a devise of an estate to one person for life with the remainder in fee to the children of that life tenant’s body does erect an estate tail in the life tenant. (Ewing v. Nesbitt, supra, and citations; Gardner v. Anderson, supra, and citations; Allen v. Pedder, supra, and citations.)
Does the provision in the will of D. D. Kellogg for the maintenance, care and keeping of Willie Kellogg operate to prevent the creation of an estate tail in Vera Mable Davis? No part of the title is vested in him. The cost of his maintenance, care and keeping is not primarily cast upon the estate. It is cast upon the granddaughters, individually and personally, and only upon their default does it devolve as a charge upon the estates respectively devised to them. So long as Vera Mable Davis continues to discharge the personal .obligation as she has loyally done hitherto, the estate bestowed upon her and the children of her body is not affected in the slightest degree. And in the event she should make default (as apparently her sister has done, according to the findings of the trial court, but with which we have no concern in this lawsuit), the title to the
The conditional right of Willie Kellogg, through the instrumentality of a trustee, to the rents, income and profits, on the personal default of Vera, is a potential burden on the estate, but it is a condition subsequent which does not suspend the vesting of title — and will not defeat the title which is vested — in Vera for life, with remainder in fee to the children of her body.
In Jackson v. Knapp, 297 Ill. 213, it was said:
“An. estate may be devised subject to a condition annexed to the devise whereby the estate shall commence, be enlarged, or defeated upon a performance! or breach of the condition. The devise may be either upon a condition precedent or subsequent, and thei’e is no technical form of words by which the-character of the condition is to be determined. If the condition is precedent the estate does not vest unless and until the condition has been performed, but if it is subsequent the estate vests and upon a breach of the condition there is a right of reentry by the person entitled, whether by limitation over, or, in the absence of such limitation, by the heir-at-law, who may take advantage of the breach of the condition. The distinction depends upon the connection in which the words are used, and in case of doubt the courts favor a construction making the condition subsequent. If the performance of the condition does not necessarily precede the vesting of the estate, but may accompany or follow it, and if the act may as well be done after as before the vesting of the estate, or if from the nature of the act and the time required for its performance it is evident that the intention of the parties was that the estate should vest and the devisee perform the act after taking possession, the condition is subsequent.” (p. 217. See, also, Woodward v. Walling, 31 Ia. 533; Roberts v. Crume, 173 Mo. 572; Drace et al. v. Klinedinst, Appellant, 275 Pa. St. 266, 25 A. L. R. 1521; Ecroyd v. Coggeshall, 21 R. I. 1, 79 A. S. R. 741 and note.)
So it seems to this court that while the potential interest of Willie Kellogg in the rents, income and profits of this estate is and will continue to be one which a court of equity will protect, if and when the need therefor may arise, that interest has no effect on the title (Matter of Gray, 27 N. D. 417, and note thereto in L. R. A. 1917 A, 617 et seq.), and so the rule of law which characterizes a devise of land to one person for life, with remainder in fee to the children of that person’s body or bodily heirs, or issue, or similar designation which shows the purpose of the testator or grantor to avoid the effect of the statute of descents and to found a line of succession to his property of his own particular choosing, is applicable to the case at bar. (Kolmer v. Miles et al., 270 Ill. 20.)
“I give and bequeath unto my nephew John Gaskill and my niece Elizabeth P. Gaskill, children of my brother William Gaskill, all the farm and plantation whereon I now reside, together with all the stock, farming implements, household goods and kitchen furniture at the time of my decease, to them or the survivor of them for and during the term of their natural life or lives of them for the said John and Elizabeth P. Gaskill, and after their death to their lawful issue, in fee simple absolute by their paying out of the rents, issues and profits of said farm and plantation aforesaid the sum of four hundred dollars yearly and every year unto my beloved wife Sarah Gaskill during the full term of her natural life in semi-annual payments, that is to say two hundred dollars every six months. And I do hereby order and direct that the farm and plantation aforesaid shall be held chargeable and subject to the payment of the aforesaid bequest made and given to my said wife, and that my said wife shall have the use and occupation of the said house upon the farm and plantation and all my household goods and kitchen furniture for her own use so long as she may remain upon said farm.” (p. 743.)
The court said:
■‘We are dealing with a devise of land, and the words in the will give an estate to the testator’s nephew and niece for their lives and the life of the survivor, and, after the death of the survivor, ‘to their lawful issue, in fee simple absolute.’ Certain conditions which Were performed during the lives of both of the life tenants were charged upon the lands. This devise is of a life estate in the first devisees, with a remainder to their lineal descendants in indefinite succession, and creates an estate tail at common law.” (p. 744.)
It is suggested, however, that appellant is estopped to claim an estate tail under the will by the ex parte proceedings she instituted in the district court for the appointment of a trustee for Willie Kellogg, and by the proceedings in the probate court for the appointment of a guardian for her minor children. To this there are at least two answers. Regardless of the question of estoppel, the plaintiff could not create in herself an estate tail. The testator made a certain testamentary disposition of his property which the law itself characterizes and denominates an estate tail. And no act of Vera Mable Davis was necessary to its creation. But as tenant in tail she has the right and privilege under our law to respect and preserve the entailment for the benefit of the children of her body, and she also has the right and privilege to break the entailment by a conveyance. Perhaps it is not too much to say that it is because estates tail can be so readily transformed into estates in fee simple that our legislature has permitted them to be created in this state. (Gardner v. Anderson, supra; 1 Washburn on Real Property, §189.) More
A final matter urged on our attention in this appeal concerns the ruling of the trial court touching the validity of the leases of 1923 and-1925 granted by Vera Mable Davis and others. The trial court-held the first lease valid, on the assumption that all the interest she had in the leased property was a naked life estate, and that the lease she made of it in her own behalf and in behalf of Willie Kellogg as trustee, and in behalf of her minor children as guardian, was the only proper and binding contract of lease which could have been effected. An erroneous course of reasoning does not always nor necessarily condemn the conclusion arrived at therefrom. (Scattergood v. Martin, 57 Kan. 450, 46 Pac. 933; Saylor v. Crooker, 97 Kan. 624, 156 Pac. 737; 2 Dec. Dig. pp. 51, 52.) The fact that precedent to the execution of the lease in 1923 there was a lot of superfluous and ineffective preliminaries — concerning a trusteeship for Willie-Kellogg and the unborn, possible issue of Mrs. Davis, and a guard
It is so ordered.