347 P.2d 428
No. 41,561Supreme Court of Kansas
Opinion filed December 12, 1959.
SYLLABUS BY THE COURT
WILLS — Provisions Construed Creating Trust — When Interest Vested. In a proceeding to construe the provisions of a will creating testamentary trusts, the record is examined and it is held: Applying the cardinal rule of construction that a will is to be read and considered as a whole instrument, the will definitely provides for the vesting of the beneficial interest in the trust property given to the testator’s widow as of the date of testator’s death, and that this includes the power of appointment of such property.
Appeal from Sedgwick district court; E.E. SATTGAST, judge. Opinion filed December 12, 1959. Affirmed.
J.B. Grant, of Wichita, was on the briefs for the appellants.
Mark H. Adams, Charles E. Jones, William I. Robinson, J. Ashford Manka, Clifford L. Malone, Mark H. Adams, II, and John S. Seeber, all of Wichita, were on the briefs for the appellees.
The opinion of the court was delivered by
JACKSON, J.:
The estate of John C. Kelly, deceased, is in the process of administration in the probate court of Sedgwick county. Mr. Kelly died testate, and named Walter R. Burdge as his executor and trustee of the elaborate testamentary trusts created in his will. Mr. Burdge was duly appointed, qualified and is acting as the executor. He duly filed a petition for the construction of the will in probate
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court. This petition was transferred to the district court for hearing and decision.
The petition of the executor sets out one question for determination. It is alleged that the estate has not been finally distributed and closed because of a controversy with the United States Treasury Department, Internal Revenue Service, as to the amount of federal estate tax due from the estate; that the executor desires to await the settlement of this controversy so that the tax finally determined can be paid before final settlement of the estate. It is further alleged that the widow of the testator, Sarah F. Kelly, survived him, and has requested distribution of the estate to remove any doubt as to her right to exercise the power of appointment granted to her under the provisions of the will; that a construction of the will is necessary to determine whether the widow having survived her husband became vested upon testator’s death with the beneficial interest given and devised to her under Item six (1) of the will with a power of appointment thereof, or whether such interest is conditioned upon the widow surviving the date of the closing and distribution of the estate by the executor.
The district court heard the matter and rendered its judgment holding that the widow’s beneficial interest under the will, including the power of appointment granted to her as to the estate given to her under the will, vested at the date of testator’s death and that she might exercise such power without waiting for the date of distribution of the estate.
Within due time, the appellants, two great grandchildren of the testator, appealed the decree of the district court to this court. Appellants hold contingent interests under the will and are represented by their duly appointed guardian ad litem.
It readily appears that the ultimate question to be decided upon this appeal turns upon the construction of the will of the testator. The will is long and elaborate and therefore will not be included in this opinion in full, but an adequate synopsis of the same taken from the briefs of the parties is appended to the opinion for ready reference. The italics in the appendix have been supplied to emphasize important provisions of the will.
In approaching the construction of a will in this jurisdiction, we must take note of the cardinal principle announced by this court in many decisions that the intention of the testator is to be gathered from a reading and study of the instrument as a whole (Commercial
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National Bank v. Martin, 185 Kan. 116, 120, 340 P.2d 899 Johnston v. Gibson, 184 Kan. 109, syl. ¶ 3, 344 P.2d 348; In re Estate of Yetter, 183 Kan. 340, 328 P.2d 738; In re Estate of Blank, 182 Kan. 426, 320 P.2d 775; In re Estate of Charowhas, 181 Kan. 322, 310 P.2d 947; In re Estate of Woods, 181 Kan. 271, 277, 311 P.2d 359; In re Estate of Cribbs, 180 Kan. 840, 308 P.2d 111).
The above construction would seem to have special virtue as it is applied to this case. If only the provisions of Item six (3) be read separately one has some doubt as to the meaning of the will. On the other hand, if the will is read as a whole and the scheme of the testator is analyzed, there is little room left for doubt. From the will so considered, the court is convinced that the beneficial interest of the widow became vested at the time of her husband’s death and that this included the right to exercise the power of appointment given to her under Item eight (3).
Despite the fact that we believe a careful reading of the will is sufficient to disclose the soundness of the above conclusion, we shall point out briefly some of the salient considerations. Without doubt, the primary purpose of the will was to give the testator’s wife the fullest security during her lifetime and to provide for the fullest, legal marital deduction for her benefit under the regulations of the internal revenue regulations in force at the time of the testator’s death. Testator’s concern for his wife’s welfare is shown by the fact that in Item nine (1), the trustee is directed to make available for the wife’s benefit the income or principal of Kelly Trust B, if that should be necessary. In fact, in every part of the will, testator shows his primary interest in his wife’s welfare as stated in plain language in the last cited paragraph.
Turning to other ideas expressed in the will, in the first paragraph the will provides for disposition of my property “effective at my death.” In Item six (2), it is provided that “in event my wife shall survive me, my trustee above named shal immediately divide all trust property into two separate parts. . .” The trustee and the executor under all conditions and events were intended to be the same individual. There would seem to be no reason why the fiduciary could not act in two capacities at the same time, and immediately set up the trusts provided in the will subject to the demands of the payments of debts, taxes and costs of administration due from the estate.
Item eight provides that the corpus of Kelly Trust A shall be the
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amount of the marital deduction under the internal revenue laws in force at the time of testator’s death. The wife was given absolute beneficial interest of this trust together with an absolute power of appointment. If these very important provisions do not vest beneficially in the wife at the time of testator’s death, they seem to become meaningless. This alone would seem sufficient to show testator’s intent beyond any possibility of question.
In subparagraph (3) in speaking of the power of appointment, the will continues: “Said right and power to appoint is expressly made exercisable by the said Sarah F. Kelly alone, at any time, and in all events.”
Certainly, “at any time” would include that period in which the estate was in process of administration.
Finally, in Item twelve the will directs the executor to begin the payments provided to be made by the trustee and to continue the same until the fiduciary shall take over fully as trustee. This provision is in harmony with the above mentioned provisions of Item six (2) indicating that testator intended the trusts to be operative as far as possible from the date of his death.
Now turning to the questioned language found in Item six (3): “If my wife shall not survive me” is clear beyond any possibility of cavil. The rest of the sentence as to her death before distribution to the trustee must be construed to refer only to any residue of the property given to the surviving wife which she has not disposed of by power of appointment. Attention is directed to the provisions of Item eight (4), where such undisposed of property shall become part of Kelly Trust B.
Such construction from a reading of the will as a whole is almost inescapable and gives meaning to every part of the will. In closing, it may be added that if such a construction of the will were at all in doubt, which we think is not true, this court has on several occasions adhered to the well-known rule that it will favor an early vesting of testamentary gifts (Cramer v. Browne, 159 Kan. 423, syl. ¶ 4, 155 P.2d 468).
In our opinion, the decision of the learned trial court was entirely correct, and that decision should be affirmed.
It is so ordered.
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