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NOT DESIGNATED FOR PUBLICATION

No. 121,335

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ROBERT DEAN MOUNKES, Guardian and Conservator for

DOROTHY A. MOUNKES,

Appellee,

v.

LEE WAYNE MOUNKES and CAROL R. RANKIN,

Appellants,

and

DUANE D. MOUNKES, Deceased, DUANE D. MOUNKES LIVING TRUST,

DONALD GENE MOUNKES, ROBERT DEAN MOUNKES,

Defendants.

MEMORANDUM OPINION

Appeal from Lyon District Court; W. LEE FOWLER, judge. Opinion filed August 21, 2020.

Reversed and remanded with directions.

Thomas A. Krueger, of Krueger Law Office, of Emporia, and Shane A. Rosson, of Triplett Woolf 

Garretson, LLC, of Wichita, for appellants. 

Stephen J. Atherton, of Atherton & Huth, of Emporia, for appellee.

Before MALONE, P.J., ATCHESON and SCHROEDER, JJ.

ATCHESON, J.: This distinctly odd quiet title action required the Lyon County 

District Court to determine the ownership of an 80-acre tract of land that remained in a 

trust when, following the death of the trustee in 2014, nobody could find a copy of the 
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trust instrument. Absent an applicable statute or any controlling case authority, the 

district court decided the trust ought to be treated as void from its inception, so the 

husband and wife who set up the trust—with the husband as trustee and, in 1997, deeded 

a quarter section to the trust—remained the owners of the 80-acre tract notwithstanding 

their contrary intent and actions. We find that to be a needlessly broad remedy, 

potentially casting a shadow on the trust's 2001 transfer of a different 80-acre tract to the 

couple's daughter and her husband. 

The Restatement (Third) of Trusts § 8 provides more carefully tailored relief that 

better addresses this situation. Under Restatement (Third) of Trusts § 8, the trust failed 

when the trust instrument could not be found, and it then became void. A resulting trust 

arose by operation of law in favor of the husband and wife, as the transferors of the land 

into trust. The timing of the trust's legal failure arguably makes a difference, especially 

with respect to the 2001 land transfer from the trust. The Kansas Supreme Court has 

looked to previous editions of the Restatement for authoritative guidance on trust 

principles. See In re Estate of Somers, 277 Kan. 761, 767-68, 89 P.3d 898 (2004); In re 

Estate of Sanders, 261 Kan. 176, 183, 929 P.2d 153 (1996). We do likewise in this case 

and rely on Restatement (Third) of Trusts § 8. We, therefore, reverse the district court's 

judgment and remand for further proceedings including both a finding the trust was void 

as of May 9, 2018, when that judgment was entered, and the imposition of a resulting 

trust as of that date. 

FACTUAL AND PROCEDURAL HISTORY

In 1997, Duane and Dorothy Mounkes, a married couple, conveyed a quarter 

section (160 acres) by warranty deed to the Duane D. Mounkes Living Trust. The deed 

was recorded with the Lyon County Clerk's Office. The parties in this case agree the legal 

description of the land is: The West Half of the SW1/4 of Section 32, Township 16 

South, Range 11 East of the 6th P.M., Lyon County, Kansas. Four years later, Duane 
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Mounkes, as the trustee of the Duane D. Mounkes Living Trust, conveyed the east half of 

that quarter section (80 acres) by warranty deed to Carol Rankin and William Rankin. 

The deed was duly recorded. Carol Rankin is Duane and Dorothy's daughter, and William 

is her husband. 

The west half of the quarter section apparently remained property of the trust. 

Duane Mounkes died in 2014. Dorothy has since been adjudged incompetent, and the 

Mounkes' son Robert has been appointed her guardian and conservator.

In 2017, Robert filed this quiet title action on behalf of Dorothy to determine 

ownership of the west half of the quarter section. The petition named as defendants the 

children of Duane and Dorothy, including Carol Rankin, along with others potentially 

having some legal interest in that tract. Carol Rankin's interest was described as flowing 

from her status as the daughter of Duane and Dorothy. William Rankin was not a named 

defendant. Quiet title proceedings are in rem actions, meaning the district court has 

authority to decide legal interests in only the real property identified in the petition. See 

Sebree v. Board of County Comm'rs of Shawnee County, 251 Kan. 776, Syl. ¶ 6, 840 P.2d 

1125 (1992) ("In a quiet title action, the court has jurisdiction only of issues pertaining to 

the property for which quiet title is sought."); Neagle v. Brooks, 373 F.2d 40, 43 (10th 

Cir. 1967) (same, construing Kansas law). The ownership of the east half of the quarter 

section the trust conveyed to Carol Rankin and William Rankin is not directly at issue in 

this case.

Nobody has been able to find the document creating the Duane D. Mounkes 

Living Trust and describing its operation. The original is missing, and the whereabouts of 

a copy is anybody's guess. The accountant who may have prepared the trust is dead, and 

his office records could not be located. The absence of the trust instrument is, to say the 

least, a complicating circumstance (and likely the one prompting this action in the first 

place). A trust instrument commonly would describe the replacement of a trustee who can 
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no longer serve in that capacity, what happens if a beneficiary dies, specific events 

triggering termination, and a process for winding up the trust and disposing of its 

remaining assets or corpus. Neither the parties nor the district court had any indication 

about those mechanics of the Duane D. Mounkes Living Trust or even the identity of the 

trust beneficiaries. 

The parties submitted a detailed stipulation of facts to the district court, along with 

the deeds and related documents. As we have indicated, Kansas law furnished no direct 

answer about how to handle a situation in which a trust holds assets but the governing 

instrument is AWOL. Carol Rankin and Lee Wayne Mounkes, another child of Duane 

and Dorothy, argued the trust failed and the west half of the quarter section should have 

passed by intestate succession upon Duane's death, presumably resulting in a half interest 

going to Dorothy with the balance divided among the children. 

The district court filed a short memorandum decision on May 9, 2018, finding the 

Duane D. Mounkes Living Trust "is not a valid trust under Kansas law." Having found 

the trust void from its inception, the district court concluded the deed from Duane and 

Dorothy Mounkes conveying the quarter section to the trust in 1997 had "no effect." As a 

result, Duane and Dorothy Mounkes continued to hold the land as joint tenants with a 

right of survivorship. And on Duane's death, Dorothy succeeded to his interest. 

The district court cited no controlling or persuasive authority for its conclusion 

and relied on the inability of anyone to discern the operative terms of the trust. Although 

not explicitly stated in the memorandum decision, the district court's ruling effectively 

quieted title to the west half of the quarter section in Dorothy Mounkes. Carol Rankin and 

Lee Wayne Mounkes filed a motion for reconsideration that the district court denied in 

May 2019. They have appealed.
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LEGAL ANALYSIS

On appeal, we confront precisely the same issue the district court faced: What 

should be done with real estate deeded to a trust when the trust instrument cannot be 

found years later? The parties stipulated to relevant facts in the district court and 

submitted various documents related to their stipulation. Because the facts are undisputed 

and we can evaluate the documents just as well as the district court, we are effectively 

reviewing a legal conclusion. We do so without any particular deference to the district 

court's decision. See Thoroughbred Assocs. v. Kansas City Royalty Co., 297 Kan. 1193, 

1207, 308 P.3d 1238 (2013) (appellate court exercises unlimited review over 

"interpretation and legal effect of written instruments"); In re Trust D of Darby, 290 Kan. 

785, 790, 234 P.3d 793 (2010); Estate of Belden v. Brown County, 46 Kan. App. 2d 247, 

258-59, 261 P.3d 943 (2011) (legal effect of undisputed facts presents question of law 

decided without deference to district court).

Dorothy Mounkes contends K.S.A. 58a-412, permitting modification or 

termination of a trust because of unanticipated circumstances, supports the district court's 

ruling. We don't read the statute as granting a district court the authority to declare a trust 

void from its inception and, thus, without any legal effect. Rather, the statute permits a 

district court to modify or even terminate a trust when legal or factual circumstances 

render the continuing operation of the trust impracticable or impossible, thereby 

thwarting its purpose. The statute affords a district court the authority to approximate the 

settlor's intent when an unexpected external event thwarts the stated terms of the trust. 

See In re Trust D of Darby, 290 Kan. at 794-95. The point is underscored in K.S.A. 58a412(c), describing how a court-ordered termination of a trust must be carried out: "[T]he 

trustee shall distribute the trust property in a manner consistent with the purposes of the 

trust."
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The process set out in K.S.A. 58a-412 does not fit the circumstances of this case 

precisely because nobody could find the document establishing the Duane D. Mounkes 

Living Trust and, therefore, could not determine how the trust was to operate or its 

purpose. We doubt the loss of the trust instrument itself (and the absolute unavailability 

of its terms) entails the sort of event that triggers K.S.A. 58a-412 in the first place. A 

district court could not presume to modify a trust to further its purpose in that 

circumstance, since the terms necessarily inform the purpose and any modification would 

be no more than a blind guess. Moreover, here, the only apparent trustee of the trust had 

died and, therefore, couldn't distribute the trust property—the west half of the quarter 

section—in any manner, let alone in keeping with the trust's unknown purpose. 

We might infer that Duane and Dorothy retained some beneficial interests in the 

real property in the trust, such as life estates. But that, too, would be a guess. The district 

court neither cited nor relied on K.S.A. 58a-412. We see that reticence as well founded.

Carol Rankin and Lee Wayne Mounkes cited Restatement (Third) of Trusts § 8 in 

the district court, but they misconstrued its application in this situation. The district court 

chose not to draw on the Restatement in fashioning its remedy. 

Again, as we have indicated, the district court went too far in holding the Duane 

D. Mounkes Living Trust never went into effect. The record evidence shows otherwise. 

The trust existed in 1997, since Duane and Dorothy deeded the quarter section to it. The 

taxes on the land were paid after that, further indicating the trust was functioning. The 

trust later deeded the east half of the quarter section to Carol Rankin and William Rankin 

without objection from Duane or Dorothy—yet another indication the trust had been 

established and was operating in conformity with Duane's direction as trustee. None of 

the parties presented evidence in this case to refute those circumstances. 
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In that light, the district court's decision to find the trust void from its inception 

amounts to a legal fiction drawn contrary to the record evidence. The district court 

presumably saw the fiction as a convenient one in the absence of either any reliable 

statement of the operative language of the trust or a way to reasonably reconstruct the 

trust instrument. As convenient as that approach may have been, its deviation from the 

evidence also led to an unnecessarily extreme result. Although the ownership of the east 

half of the quarter section the trust conveyed to Carol Rankin and William Rankin is not 

directly at issue in this quiet title action, the district court's ruling would—if it were a 

correct statement of the law—call into question their claim to that tract. Dorothy could 

seek to reclaim the east half through another quiet title action. And the very existence of 

the district court's ruling in this case might cloud the Rankins' title.

Properly applied, Restatement (Third) of Trusts § 8 averts that extreme outcome 

and fashions a reasonable remedy. Our search for controlling Kansas authority on what to 

do with a trust when the trust instrument itself has vanished was no more fruitful than the 

efforts of the parties and the district court. But our reliance on the Restatement (Third) of 

Trusts as a source of guiding principles has a strong foundation in Kansas caselaw. The 

Kansas Supreme Court has not just cited the Restatement of Trusts to fill in gaps in this 

state's law but has identified it as a preferred and authoritative outline on the subject. See 

Estate of Somers, 277 Kan. at 767 ("When there is no law directly on point, Kansas 

courts turn to the Restatement of Trusts."); Estate of Sanders, 261 Kan. at 183 ("[W]e 

have often turned to the guidance of the Restatement of Trusts."). The Kansas Uniform 

Trust Code also anticipates the use of "[t]he common law of trusts and principles of 

equity" to fill in where the statutory scheme is silent on a matter. K.S.A. 58a-106. 

The blackletter principle in Restatement (Third) of Trusts § 8 states that if the 

owner transfers property with the intent that the transferee retain the property in trust and 

"the intended trust fails," the transferee then holds the property in a "resulting trust" for 

the original owner or the owner's successors in interest. Restatement (Third) of Trusts § 8 
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(2003). Consistent with the resulting trust, the property should then be returned to the 

original owner. 

The application of the rule is illuminated in the Restatement comments. So if the 

trust "fails . . . at a later time," the trustee "then holds the trust property . . . upon a 

resulting trust" for the owner. Restatement (Third) of Trusts § 8, comment a. Even more 

pointedly here, if property is transferred with "a proper manifestation of the intention that

the property be held by the transferee in trust but without proper manifestation of the 

intended beneficiaries or purposes," the Restatement authors recognize "a resulting trust 

arises." Restatement (Third) of Trusts § 8, comment h. And they offer as an illustrative 

example a landowner transferring property by deed to a party designated to take it "'as 

trustee'" or "'in trust'" when nothing sets forth the intended beneficiaries, preventing the 

trust from being carried out. In that situation, a resulting trust arises in favor of the 

original owner. Restatement (Third) of Trusts § 8, comment c, illustration 1; comment h.

Resulting trusts are creatures of equity and should be recognized to secure a just or fair 

outcome. See Stauth v. Stauth, 2 Kan. App. 2d 512, 516, 582 P.2d 1160 (1978) 

("resulting trusts . . . are matters of equity" and may not be precluded by the statute of

frauds or statutes of limitations); Burleson v. McCrary, 753 S.W.2d 349, 352 (Tenn. 

1988) ("Resulting trusts and constructive trusts are both created by courts of equity in 

order to satisfy the demands of justice."); 76 Am. Jur. 2d, Trusts § 136 ("[A] court of 

equity, shaping its judgment in the most efficient form, will decree a resulting trust in 

order to prevent a failure of justice."). 

Following the directives of Restatement (Third) of Trusts § 8, we find Duane and 

Dorothy intended to transfer the quarter section to the Duane D. Mounkes Living Trust 

with Duane serving as trustee. The trust later failed when no one could identify the 

beneficiaries or the purpose of the trust because the foundational instrument could not be 

located. Consistent with the Restatement (Third) of Trusts § 8, a resulting trust arose at 

that time covering the west half of the quarter section as the remaining trust property or 
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corpus. Restatement (Third) of Trusts § 8, comment b (rule applies when "a transfer has 

been properly made to establish an express trust [and] the intended trust or some interest 

therein may fail because no beneficiary has been named"). The resulting trust would have 

been for the benefit of Duane and Dorothy as the owners who conveyed the land to the 

Duane D. Mounkes Living Trust. The district court, in turn, had the authority to order the 

west half of the quarter section conveyed back to them or their successors in interest 

consistent with the resulting trust.

We offer several additional observations about the effect of the Restatement rule 

in this case. First, the trust failed when there was either a district court finding or a 

consensus of the parties that the trust instrument could not be located and no other means 

furnished an adequate basis to reconstruct its terms. We have more or less arbitrarily 

dated the failure as of the district court's May 9, 2018 order. But the failure would not 

have preceded Duane Mounkes' death in 2014, since nobody went looking for the trust 

instrument before then. The precise date between those two points makes no legal 

difference.

Second, after Duane Mounkes died, the trust likely was without a trustee. Absent 

the trust instrument, there was no way to know. And the trust may not have included a 

provision for replacing Duane as trustee if he died or became incapacitated. In that 

situation, the district court had the statutory authority to appoint a new trustee. See 

K.S.A. 58a-704(c) (district court may fill trustee vacancy as necessary when trust fails to 

designate successor and beneficiaries cannot unanimously agree on successor). The 

successor trustee would then have the authority to convey the west half of the quarter 

section under the resulting trust. We suppose, too, the district court had the authority to 

appoint someone to oversee the resulting trust and to convey the west half of the quarter 

section in conformity with any further orders. 
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As we have recognized, a resulting trust may be imposed to do equity in a given 

case. Here, consistent with the Restatement (Third) of Trusts § 8, that would call for 

restoring the west half of the quarter section to Duane and Dorothy as joint tenants with a 

right of survivorship, thereby recreating the real property interest they held immediately 

before their conveyance of the full quarter section to the trust. In turn, since the Duane D. 

Mounkes Living Trust conveyed the east quarter section before Duane died, that transfer 

would be undisturbed. After Duane's death, Dorothy, as the surviving spouse, would have 

an equitable right to a fee-simple interest in the west half of the quarter section by virtue 

of the resulting trust. Under the Restatement (Third) of Trusts § 8, Dorothy would be 

Duane's successor in interest to his interest in the tract as a joint tenant with a right of 

survivorship. 

As we have already indicated, Carol Rankin and Lee Wayne Mounkes incorrectly 

suggest the Restatement rule would treat Duane and Dorothy's conveyance of the quarter 

section to the trust as stripping away their joint tenancy, so the resulting trust would apply 

to a tenancy in common. The rule, however, aims to restore land to the transferors if a 

trust later fails without altering the character of the property interests, and a resulting trust 

provides the flexibility in equity to accomplish that objective. Restatement (Third) of 

Trusts § 8, comment h (when resulting trust arises, "equitable interests . . . revert, and the 

transferee holds the property on resulting trust for the transferor"). Accordingly, when 

Duane died, Dorothy equitably succeeded to his interest in the west quarter section, since 

they had held the land in joint tenancy with a right of survivorship. And nothing suggests 

they would have intended otherwise had they retained the land rather than conveying it to 

a trust that later failed. To treat the west half of the quarter section otherwise would be 

distinctly inequitable or unjust. 

Finally, the rule in Restatement (Third) of Trusts § 8 creating resulting trusts has 

two exceptions. A resulting trust would not arise if the owner transferring the property 

"manifested an intention" to the contrary or if the trust failed as "an illegal transaction" 
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and policy considerations favored denying relief to the transferor in preference to the 

otherwise unjust enrichment of the transferee. Neither exception applies here, so we don't 

explore them further.

In summary, then, we reverse the district court's ruling and remand with 

directions. On remand, the district court should find the Duane D. Mounkes Living Trust 

failed after Duane's death when it became apparent the trust instrument could not be 

found. The district court should impose a resulting trust on the west half of the quarter 

section in favor of Duane and Dorothy Mounkes as joint tenants with a right of 

survivorship, then effectuate the conveyance of legal title to that tract to Dorothy as the 

survivor, and take such other actions as may be necessary and consistent with this 

opinion.

Reversed and remanded with directions.