99 P.2d 771 | Kan. | 1940
The opinion of the court was delivered by
The plaintiff, a national bank in Kansas City, Mo., seeks here by original proceedings in mandamus, determination of its right to qualify and act as a testamentary trustee of certain funds. Respondents are the probate judge of Douglas county and the executors named in the last will and testament of Elizabeth M. Watkins, deceased. The action is friendly in character and the relief sought is in the nature of a declaratory judgment. The principal question presented is whether the plaintiff is barred from acting as trustee in this state by the provisions of section 131, article 17 of the new probate code (Laws of 1939, ch. 180), which prevents corporations not organized and having their principal place of business in this state from being appointed or acting as a fiduciary in this state except in ancillary proceedings.
Elizabeth M. Watkins, long a citizen and resident of Lawrence, Douglas county, Kansas, died testate on June 1, 1939. Her last will and testament was duly probated on June 5, 1939, and on that date respondents, Dick Williams, Hugh Means and Raymond F. Rice, were duly qualified as executors and letters testamentary were issued to them. Under the terms of the will certain money or its equivalent in securities was bequeathed to the plaintiff, the First National Bank of Kansas City, Mo., as trustee of various trusts established by the will. On June 28, 1939, the plaintiff filed in the probate court its written acceptance of the trust. Plaintiff alleges that at the time of her death Mrs. Watkins had on deposit in its commercial department about $18,000 and that on June 28, 1939, it transferred this deposit to its trust department and allocated it in proper proportion to the various trusts created by the will and thereupon invested the funds so transferred in accordance with the provisions of the will. The probate court having refused to rec
Three sections of the new probate code are involved, primarily, in the present issue. The pertinent provisions are as follows:
“Sec. 131. (Article 17) Corporate fiduciaries. No bank or other corporation, unless it is organized under the laws of and has its principal place of business in this state, or is a national bank located in this state, shall be appointed or authorized directly or indirectly to act as a fiduciary in this state, except in ancillary proceedings. . . .”
“Sec. 281. (Article 26) Effective date. The rules of procedure herein prescribed shall govern all probate proceedings brought after they take effect and also all further procedure in probate proceedings then pending, except to the extent that in the opinion of the court their application in a particular proceeding when they take effect would not be feasible or would work injustice, in which event the former procedure applies. This act shall take effect and be in force on and after July 1, 1939, and after its publication in the statute book.”
“Sec. 130. (Article 16) This article shall apply only to trusts the administration of which shall begin after the effective date of this act.”
By section 281 the effective date of the act was fixed to be “on and after July 1,1939, and after its publication in the statute book.” The statute book having been published on June 30, 1939, the entire act thus took effect on July 1,1939.
It is conceded that prior to July 1, 1939, there was no statutory provision which would bar the plaintiff, a foreign corporation, from serving as a fiduciary in this state. The question is whether it is now barred by the provisions of section 131, swpra. We do not find the question troublesome. Section 131, along with other provisions
As additional support of its contention that it is not barred by the provisions of section 131, the plaintiff stresses the fact that on June 28, 1939, it voluntarily transferred to its trust department a deposit which Mrs. Watkins had in its commercial department and on the same day made what it considered proportionate distribution thereof to the various trusts created by the will. It argues that this transfer of the deposit prior to July 1, 1939, has significance in determining that the bar of the section is here inapplicable. We give no weight to that contention. In fact, while no issue is here presented on the question, we find nothing in the record to indicate by what authority such a transfer was made by the plaintiff. It was not made upon any order of the probate court where the will was filed, nor at the
We return to a brief consideration of section 281. In addition to its declaration that the act shall take effect on July 1, 1939, the section contains a provision with reference to the applicability of rules of procedure. We find no difficulty in determining the purpose of the provision. It was clearly the intention that the new rules of procedure should apply not only to the administration of estates to which the substantive provisions became applicable after July 1, but should also apply to further procedure in proceedings pending on July 1, except to the extent that their application in a particular proceeding would not — in the opinion of the court — be feasible or would work injustice. In other words, although some substantive provisions of the new code — such as that contained in section 131- — -would not apply to proceedings pending on July 1, the new rules of procedure would apply to them unless the court determined, for the reasons stated, that the old rules should continue to apply in a •particular pending proceeding. (Siefkin v. Seifkin, 150 Kan. 396, 92 P. 2d 1005.) It follows accordingly that probate proceedings in the instant case having been begun prior to July 1, 1939, the rules of procedure prescribed by the new code are to be followed except to the extent that the court may determine that their application would not be feasible or would work injustice, in which event the former procedure would apply.
We consider now the question of whether administration of the trust by plaintiff had actually begun prior to July 1,1939, within the meaning of section 130, supra. If such administration had not'so begun then the provisions of article 16 of the new code must be
With the clear intent of section 130 in mind, let us see whether the administration of the instant trust was begun before July 1. What had been done? The will which created the trusts and designated the trustee had been filed for probate, letters testamentary had been issued to the executors and the plaintiff had filed an acceptance of the trust. Nothing more. For reasons heretofore stated the voluntaiy and undirected transfer of the commercial deposit of the decedent by the plaintiff constitutes no act of administration. No funds had been distributed to the plaintiff by the executors nor had there been any order of the court relating in any way to the trusts or the trust funds. Indeed, neither under the old nor the new probate code (G. S. 1935, 22-921; sec. 114, Laws of 1939, ch. 180) could the executors be compelled to make distribution within one year from the date of their qualification except under the specific terms' set out in the statutes. Moreover, the will did not bequeath
In view of the conclusions already stated, it is not necessary to determine whether the plaintiff acquired, under the statutes existing when the will was filed for probate, any “vested” right to qualify and serve as trustee which could not be taken from it. Able and learned briefs have been presented on the question, and it is with a near regret that we forego consideration of it.
A concluding word. A brief of amici curiae has been submitted on the question of whether section 131 of the new probate code prohibits a resident of this state from making a bequest of personal property to a nonresident corporate trustee to be administered in trust by such trustee at its domicile in another state. That question is not within the issues presented. The sole contention of the plaintiff is that section 131 is not applicable to the instant case because the facts do not bring it within the bar of the act and that any attempt to make it applicable would be invalid as a retroactive application subversive of vested rights. Moreover, as already stated, plaintiff has indicated its intention to administer the trust in this state and not at its domicile in Missouri. We cannot now give consideration to questions relating to the construction and effect of the new probate code which are not a part of the issues before us.
It follows from the conclusions heretofore stated that a peremptory writ of mandamus should issue. It is so ordered.