Berryman's Estate, Matter of

• Decision Date: 09 June 1979
• Docket Number: No. 50322,50322
• Parties: In the Matter of the ESTATE of James W. BERRYMAN, Deceased, and In the Matter of the Testamentary Trust "B" for United Presbyterian Foundation Under the Will of James W. Berryman, Deceased. UNITED PRESBYTERIAN FOUNDATION, Appellant, v. Eloise O. BERRYMAN, First National Bank in Wichita, Appellees.
• Court: Kansas Supreme Court

Page 1120

595 P.2d 1120

226 Kan. 116

In the Matter of the ESTATE of James W. BERRYMAN, Deceased,

and In the Matter of the Testamentary Trust "B"

for United Presbyterian Foundation Under

the Will of James W. Berryman,

Deceased.

UNITED PRESBYTERIAN FOUNDATION, Appellant, v. Eloise O. BERRYMAN, First National Bank in Wichita, Appellees.

No. 50322.

Supreme Court of Kansas.

June 9, 1979.

Syllabus by the Court

1. The primary function of the court in the interpretation of wills is to ascertain the testator's intent as derived from the four corners of the will and, once ascertained, the intent will be executed unless contrary to law or public policy.

2. Rules of construction in the interpretation of wills stated and applied.

3. Where a testator or trustor uses plural expressions such as "trust estates," "trusts," "said estates," "trust funds," "several trust estates," and "respective trust estates," the indication is that he had in mind not one, but several trust estates.

4. The res of a trust estate may be a fractional or undivided interest without violating the requirement that the subject matter of the trust be definite.

5. In an action for the construction of a will the record is examined and it is held: (1) the will of James W. Berryman created two separate trusts, A and B; (2) that each trust owns in fee simple absolute an undivided interest in the entire residuary estate of the decedent; (3) that the interest of trust A is an undivided three-fourths interest and that of trust B an undivided one-fourth interest; (4) that each trust owns its interest as a tenant in common with the other trust and that such ownership is subject to all of the rights of a tenant in common including the right to demand partition of any or all of the property at any time; (5) that trust B owns the entire fee simple interest including both the income and remainder interest in one-fourth of the decedent's residuary estate, as a tenant in common with trust A, free and clear of any other interest or claim of trust A; (6) that trust A owns the entire fee simple interest in three-fourths of the decedent's residuary estate as a tenant in common with trust B, free and clear of any other interest or claim of trust B; and (7) that the decision of the trial court as may be modified by the foregoing be affirmed.

Harold S. Herd, Coldwater, was on the brief for appellant.

Willis A. Shattuck, Ashland, was on the brief for appellees.

HOLMES, Justice:

This matter is before the court on an appeal from an order of the district court interpreting certain provisions of the will of James W. Berryman, deceased. Mr. Berryman, whose death occurred May 12, 1974, had executed a will on September 6, 1972 which was admitted to probate in Clark County on June 14, 1974. Mr. Berryman left an estate valued at $3,567,530.44 and a dispute has arisen over the proper construction of Article IV of his will which reads as follows:

"ARTICLE IV

"I give, devise and bequeath all the rest, residue and remainder of my property, both real and personal and wheresoever situated, which I may own or be entitled to at the time of my death, after charging such property with the payment of all inheritance, estate, transfer, succession and other death taxes imposed by reason of my death, which shall be designated as my residuary estate, as follows:

"1. If my wife, Eloise, shall survive me, I direct that my residuary estate be divided into two trusts. It would be difficult to divide the real estate, mineral interests and certain other property which I own, therefore, I direct that there be no physical segregation or division of trust assets as between the separate trusts. Instead, each trust shall reflect an undivided interest in the entire trust estate, and said trust estate shall be invested, reinvested and maintained as undivided interests for the two trusts which shall be known as Trust A and Trust B.

(a) Trust A shall consist of a three-fourths (3/4) fractional share of my said residuary estate.

(b) Trust B shall consist of a one-fourth (1/4) fractional share of my said residuary estate or, if my wife shall not survive me, it shall consist of my entire residuary estate.

"2. (a) I give, devise and bequeath Trust A to the First National Bank in Wichita, Wichita, Kansas, and my wife, Eloise O. Berryman, as co-trustees, in trust, to hold, manage, invest and reinvest the same, to collect and receive the income therefrom and to pay or apply all of the net income therefrom annually, or at more frequent intervals, to or for the use of my wife, Eloise, during her life. In addition, the trustees may distribute as much of the principal of Trust A to my wife and charge it against the power by her Last Will and Testament to appoint the entire principal of this Trust A to her estate, free of trust, or to or in trust for the benefit of such other persons or objects, in such amounts, shares, or proportions and either absolutely or upon such lawful trusts, terms and conditions, as she shall appoint by her said Will. Said power of appointment shall be exercisable only by a provision in my said wife's Will which shall specifically refer to and exercise said power. Upon the death of my said wife, any of said principal not effectively appointed by her Will shall be added to Trust B, the principal so added to follow the disposition of Trust B in all respects as to both income and principal. Any costs or expenditures of any nature, including any inheritance, estate, transfer, succession or other taxes imposed or incurred by reason of the death of my wife shall be charged against the property so passing to Trust B.

(b) Any provision of this Will and any Codicil to it to the contrary notwithstanding, the trustees of Trust A may at any time in their absolute and uncontrolled discretion terminate Trust A and pay over and deliver all of the principal and income of Trust A then in their hands to my wife, Eloise, to be her absolute property free of trust. My said wife shall have the right at any time and from time to time to withdraw and have delivered to her, free of trust, so much of the principal of Trust A as she may from time to time direct in writing, all such withdrawals to be charged against her fractional share.

"3. I give, devise and bequeath Trust B to the First National Bank in Wichita, Wichita, Kansas, as sole trustee, in trust, to hold, manage, invest and reinvest the same, to collect and receive the income therefrom and to pay or apply the net income therefrom to or for the use of the United Presbyterian Foundation, a Pennsylvania corporation registered in the state of New York with offices at 475 Riverside Drive, New York, to be used for the educational, benevolent and charitable programs of the church as directed by the General Assembly of the United Presbyterian Church of the United States of America. Trust B shall continue until 1995, or ten years after the death of the survivor of myself and my wife, whichever date is later, at which time the corpus is to be distributed to said United Presbyterian Foundation."

It has been contended that by reason of the language used in Article IV, paragraph 1, only one trust was established and that the interest of Trust B in the residue of the Berryman estate is not an undivided portion of the decedent's entire interest in the property which constitutes such residue. It was argued that the following language in Article IV, Paragraph 1:

"It would be difficult to divide the real estate, mineral interests and certain other property which I own, therefore, I direct that there be no physical segregation or division of trust assets as between the separate trusts. Instead, each trust shall reflect an undivided interest in The entire trust estate, and Said trust estate shall be invested, reinvested and maintained as undivided interests for the two trusts which shall be known as Trust A and Trust B," (Emphasis added.)

reflects an intent of the testator that only one trust be established and that Trusts A and B are not separate entities each owning an undivided interest in the residue. The trial court held that two separate trusts were contemplated and established by the will and that each trust owned, as a tenant in common with the other trust, an undivided interest in the mineral and real property interests included in the residuary estate of the decedent, free and clear of any interest of the other trust. This appeal followed.

The primary function of the court in the interpretation of wills is to ascertain the testator's intent as derived from the four corners of the will and, once ascertained, the intent will be executed unless contrary to law or public policy. In re Estate of Cline, 170 Kan. 496, 227 P.2d 157 (1951).

In Johnston v. Gibson, 184 Kan. 109, 334 P.2d 348 (1959), we held:

"Where a court, either trial or appellate, is called upon to determine the force and effect to be given the terms of a will, its first duty is to survey the instrument in its entirety and ascertain whether its language is so indefinite and uncertain as to require the employment of rules of judicial construction to determine its force and effect; and where from an analysis of the entire instrument no ambiguity or uncertainty is to be found in its language, the intention of the testator being clearly and unequivocally expressed, there is no occasion to employ rules of judicial construction and the will must be enforced in accordance with its terms and provisions." Syl. P 3.

The rules of construction were summarized in In re Estate of Ellertson, 157 Kan., 492, 142 P.2d 724 (1943):

"There is no occasion for employing any rules of judicial construction where the intention is expressed clearly and unequivocally in the will (National Life Ins. Co. v. Watson, 141 Kan. 903, 905, 44 P.2d 269). The will is to be construed so as to give effect to every part thereof, providing an effect can be given to it which appears to be consistent with the purposes of the testator...