Lawrence National Bank v. Shirk

The opinion of the court was delivered by This was an action by the trustee to construe a will and for an order concerning disposition of funds in the hands of the trustee. From the judgment rendered by the court, defendant Ralph W. Shirk in case No. 38,641 appeals, and defendant Julia Louise Maxwell in case No. 38,658 appeals from the same judgment. For purposes of clarity appellee Lawrence National Bank, trustee under the will of A.R. Maxwell, will be referred to as plaintiff, and appellant Ralph W. Shirk will be referred to as defendant Shirk and appellant Julia Louise Maxwell as defendant Maxwell. A.R. Maxwell, a resident of Douglas County, Kansas, on March 15, 1934, executed his will which was properly witnessed and consented to by his wife. After his death, his will was admitted to probate and his estate closed in the probate court on September 11, 1937. The will as executed and administered contained six numbered paragraphs which are summarized or quoted as follows. Paragraphs 1 and 2 appointed the Lawrence National Bank of Lawrence, Kan., as executor and trustee. Paragraph 3 provided for the payment of debts and that if the personal property was insufficient for this purpose, any real estate not specifically devised should be sold to pay the same. Paragraph 4 devised to his wife, Julia Louise Maxwell, the homestead together with all the household furnishings and automobile. Paragraph 5 provided: ""I hereby give and bequeath to the Lawrence National Bank a certain tract of land described as: (description) and I direct said bank to manage said real estate and collect the rents that may become due thereon, pay the taxes, add the net income therefrom to any other trust funds given in this will until my grandson, Ralph Warner Shirk, shall arrive at the age of twenty-one years, from which time he shall have the exclusive management and be entitled to all of the profits from said real estate until his death or until such time as he shall allow the taxes for two years to be delinquent thereon at the same time, and on the happening of either of said two events, I hereby direct the Lawrence National Bank, as such trustee, to convey said real estate to the issue of the said Ralph Warner Shirk, if any, and if he shall have no issue living at that time, then said Trustee shall convey said real estate to any survivors of the following four persons: Francis Maxwell Brentlinger Brock Maxwell Josine Maxwell Brissenden Rymer Maxwell and I further give to said Trustee the sum of One Hundred dollars ($100.00)