Otto v. Swartz

The opinion of the court was delivered by This is an appeal from an order and judgment overruling a demurrer to a petition. Plaintiff commenced the action in the district court of Sedgwick County by filing a petition the provisions of which, so far as pertinent to the issue involved, read: ""2. That on or about October 18, 1933, Frank J. Swartz, father of this plaintiff, executed an express living funded trust, naming his four (4) children, Howard A. Swartz, Edith I. Swartz, Ruth L. Manley and Florence H. Otto, the beneficiaries of said trust, copy of which is attached hereto marked Exhibit `A' and made a part of this petition except for Schedule A thereof which is not in plaintiff's possession. That since the inception of said trust agreement, the trust property has changed from time to time and at present the trust property consists of the following, but not limited thereto, to-wit: (Here follows description of numerous tracts of real estate.) ""3. That the purpose of said trust is to provide the aforementioned beneficiaries with all the income from said trust and so much of the principal for the maintenance, welfare, comfort or happiness of said beneficiaries. . . . . . . . . . . . . . . ""6. That the grantor, Frank J. Swartz, appointed Howard A. Swartz, one of the present beneficiaries, to act as sole trustee over the trust estate. . . . . . . . . . . . . . . ""8. Plaintiff further alleges that the present trustee, Howard A. Swartz, has not carried out the provisions of said trust, more specifically, that he has withheld large sums of money, the exact amount of which is unknown but believed to be over Fifty Thousand Dollars ($50,000.00) from the beneficiaries; and has failed and neglected to keep adequate books and records and to advise beneficiaries of all transactions incident to administration of said trust. ""9. That the present value of said trust is unknown but estimated to be over three-quarters of a million dollars and consists of various holdings of real property and improvements in Wichita, Sedgwick County, Kansas; that because of the considerable size and value of said trust, the duties of the trustee are of such a complex nature that the trustee should be a resident of the State of Kansas, and for the further reason that absence from the State of Kansas precludes proper attention to the trust. ""10. That the present trustee, Howard A. Swartz, has moved from the State of Kansas and has established his home and residence in the State of California and because of the same is unable to carry out the provisions of said trust, . . . . . . . . . . . . . . . . .