Born v. Clark

• Decision Date: 02 June 1995
• Citation: 662 So.2d 669
• Parties: Mary Kate BORN, et al. v. Patricia CLARK, et al. 1931803.
• Court: Alabama Supreme Court

Page 669

662 So.2d 669

Mary Kate BORN, et al. v. Patricia CLARK, et al.

1931803.

Supreme Court of Alabama.

June 2, 1995.

James K. Davis of Fite, Davis, Atkinson, Guyton and Bentley, P.C., Hamilton, for appellants.

John Pilati of Fine & McDowell, Russellville, for appellees.

MADDOX, Justice.

This case involves the disposition of the estate of Kate Stokes Born of Winfield, Alabama, and the specific question presented is to what extent Born's will affected the terms of a trust that she had previously executed. We affirm in part, but we reverse, in part, insofar as the trial judge failed to carry out the intent of the testatrix regarding property not included in the trust estate.

Kate Stokes Born (hereinafter referred to as Born) was married to Terry Born and was the mother of 10 children. On June 7, 1991, she executed and delivered a valid trust, conveying to herself, along with her co-trustees (Kathleen Born and Mary Kate Born, two of her daughters, who are the appellants in this action) all of her interest in 12 parcels of real property. This trust, which was revocable, provided that all income generated by the trust be used for her benefit, even to the point of exhausting the principal of the trust, if necessary. The terms of the trust stated that Born reserved the right to amend the terms of the trust by a will if she so desired.

The terms of the trust also stated that at the time of Born's death, three of the parcels in the trust estate were to be distributed to three named children: Born's daughters Mary Kate and Kathleen were to take Parcels 3 and 4, and Born's son Gerald was to be given a life estate in Parcel 8, coupled with a limited power of appointment for disposition to lineal descendants. Born then directed that the balance of the trust property--the nine remaining parcels--be divided into equal parts and distributed to all of her children who survived her, at a time to be selected by the trustees, Mary Kate and Kathleen.

On January 28, 1992, Born executed a document that reads as follows:

"This is the last will and testament of Kate Wolfington Stokes Born of Winfield, Marion County, Alabama. All earlier wills are nullified.

"My properties, real and personal, are to go to Mary Kate Born, a daughter, and Kathleen Born, a daughter, to use as they see fit. Possession shall rest in each as a lone woman (sole feme [sic] ). They are to be co-executors of my estate and shall serve without bond. The 'big house', i.e. the two story antebellum house is to be theirs (Mary Kate's and Kathleen's house) with its contents.

"The Pikeville house is for Gerald Dominic Born with its contents, on two and a half acres (more or less) for his lifetime.

"The 'River House', a one story brick house, is for Julia Ann Born, a daughter, should she care to maintain a residence there during her lifetime.

"The lot in Guin, Alabama across from the South [T]rust Bank where the River House once stood is for Patricia and William B. Clark, Junior. The 100 acres more or less lying South of Frisco Railroad located in Marion County, Alabama[,] is for Patricia and William B. Clark, Junior. The co-executors know which property this refers to.

"The indentured trust is to be maintained until the death of Terry Julian Born and the probate of his will. The properties of the trust are to be given to Mary Kate and Kathleen to use as they see fit on the revoking of the trust after the death of Terry Julian Born."

Each parcel of real property devised was in the trust estate. Born died on February 5, 1992, shortly after making this will.

On March 23, 1992, Born's will was probated; the administration of the will was removed to the Circuit Court of Marion County. Her co-executors petitioned the court for a judgment declaring how they were to distribute the estate, on the ground that there was a conflict between the terms of the will and the terms of the trust regarding the disposition of the properties in the trust estate. In response to the petition, Terry Born renounced all claims to the estate of his wife, and asked the court to ignore, and not require enforcement of, the provisions of the will that stated that the trust properties were to be given to Mary Kate and Kathleen and that the trust was to be maintained until Terry Born's death and the probate of his will. Through his response, Terry Born asked that the estate be distributed as soon as possible after the court had determined its proper disposition.

After an nonjury ore tenus hearing on the matter, the trial court held that the trust executed by Born was valid and effective. The trial court then directed the distribution of the property mentioned in the will as follows:

"1. The 'big house', i.e., the two-story antebellum house and its contents to Mary Kate and Kathleen Born.

"2. A life estate in the Pikeville house, along with its contents to Gerald Born.

"3. A life estate in the 'river house,' a one-story brick house, to Julia Born.

"4. The lot in Guin and the 100 acres more or less lying south of the Frisco Railroad to Patricia and William Clark, Jr.

"5. The balance of the estate, both real property and personal, to be distributed equally among all the surviving children of Kate Stokes Born, pursuant to the terms of the trust."

Mary Kate Born and Kathleen Born, the plaintiffs, appeal from this ruling. They contend that the trial court erred in its construction of the terms of both the will and the trust. They assert four errors: (1) that the trial court erred by ordering an immediate distribution of the trust, contending that the terms of the trust gave them the power to distribute when they saw fit; (2) that the trial court erred by ordering that the personal property of the estate be distributed to all surviving children according to the terms of the trust, contending it had been left to the two of them under the will "to use as they see fit"; (3) that the trial court erred in failing to award the two of them Parcels 3 and 4, as designated in the trust; and (4) that the trial court erred in failing to award the two of them all of the property in their mother's estate, both real and personal, "to use as they see fit" as stated in the will.

It is well settled in Alabama that the intention of the testatrix is the law of the will, which the...