Estate of Lewis, Matter of

• Decision Date: 13 May 1987
• Docket Number: No. 19316,19316
• Citation: 738 P.2d 617
• Parties: In the Matter of the ESTATE OF George K. LEWIS, Deceased. Rhoda Lee LEWIS, Appellant, v. Ben E. LEWIS, as Personal Representative of the Estate of George K. Lewis, Respondent.
• Court: Utah Supreme Court

Page 617

738 P.2d 617

In the Matter of the ESTATE OF George K. LEWIS, Deceased.

Rhoda Lee LEWIS, Appellant, v. Ben E. LEWIS, as Personal Representative of the Estate of

George K. Lewis, Respondent.

No. 19316.

Supreme Court of Utah.

May 13, 1987.

Rehearing Denied June 9, 1987.

Charles M. Bennett, Salt Lake City, for appellant.

Rodney R. Parker, Stephen L. Roth, Kent B. Alderman, George N. Larsen, Salt Lake City, for respondents.

HALL, Chief Justice:

This case arose out of a dispute concerning the will of George K. Lewis (testator). Testator's wife, Rhoda Lee Lewis (appellant), appeals a district court order holding that the estate's assets be distributed pursuant to the Utah succession statute in effect at the time of death. ¹

I

Testator and appellant were married in 1942. The couple had no children and generally had a sound marriage until 1969. In that year, while appellant and testator were living on their ranch in Springdale, Utah, a rift in their marriage developed. Appellant moved to Salt Lake City, Utah, and the couple remained separated for a period of time.

On December 18, 1969, testator prepared a holographic will. This will, although not admitted for probate, ² was admitted below as evidence of testator's intent. The will provided that part of testator's estate be administered for the benefit of appellant and the balance be administered for the benefit of testator's collateral relatives.

Appellant and testator ultimately decided to reconcile their marriage, and the trial court specifically found that the couple did so. In 1971, the Lewises purchased a home in Salt Lake City, where they lived until 1975. During this time, they were occasionally separated, primarily so testator could attend to the ranch in Springdale.

On November 5, 1971, testator again executed a holographic will, which provided:

The first request in this last will and testament is in behalf of my wife Rhoda. Insure for her comfort, security and her fair portion. There are more than ample funds, chattels and tangibles to provide this.

I choose as my executor my brother, Ben E. Lewis, to supervise and manage the liquidation and distribution of my estate and/or its proceeds. He is to serve without bond.

I demand that he seek the legal guidance and advice of George N. Larsen in all matters. He will find him to be an able, just and wise counselor who has handled all my important affairs and who is best acquainted with my wishes and hopes and plans. He will find him to be an able helper and fortunate choice.

I ask Rhoda to work harmoniously with these two to ameliorate, simplify, reduce--and wherever possible--eliminate--the complications of probate. Anything except confidence and cooperation could prove to be disastrous[.]

Testator died in Salt Lake County on May 6, 1975. He was survived by appellant and several collateral relatives, including his brother, Ben E. Lewis (respondent). Pursuant to respondent's petition, the district court entered an order appointing him executor of testator's estate and admitting the 1971 will to probate in July 1975. In June 1976, respondent filed a federal estate tax return listing all the assets in testator's taxable estate, including the corresponding date-of-death values. Respondent verified under penalty of perjury that the date-of-death values were "true" and "correct" to the best of his "knowledge and belief."

In October 1982, respondent filed a verified petition setting forth the first and final accounting of his administration of the estate. The petition sought approval of his accounting, authority to distribute the estate under the intestate succession statute in effect during May 1975, section 74-4-5(3), and discharge from his responsibilities as personal representative of the estate. The accounting set forth the date-of-death values of the estate assets in accordance with the federal estate tax return previously filed by respondent.

In November 1982, appellant filed objections to respondent's petition. Therein, appellant claimed she was the sole devisee under the will and thus should be the sole beneficiary of testator's estate. The district court issued three memorandum decisions upholding and supplementing its initial determination: that the estate be distributed pursuant to section 74-4-5(3).

II

Appellant complains that she is legally entitled to testator's estate as the sole devisee under the will. The district court found that testator's will failed to dispose of his assets, yet the court went on to order distribution of the estate to testator's heirs "under the will." The contention is that the district court erred when it ordered distribution of testator's estate "under the will" to persons not named in the will. As hereinafter explained, the district court did not err by determining that testator's will failed to dispose of his assets, and the court properly distributed the assets pursuant to section 74-4-5(3). We view the "under the will" language as an inappropriate choice of words, but perceive no error on the part of the district court.

III

Appellant claims that the district court erred when it found the dispositive portion of testator's will to be ineffective. Appellant relies upon Utah Code Ann. § 74-2-10 (1953) (repealed 1977), which provided that the preferred method of interpreting a will is that which will prevent a total intestacy. ³ Appellant seeks to have this Court interpret testator's will as properly disposing of testator's estate and then to order distribution of the estate pursuant to the Court's interpretation.

First, appellant contends that the language used by testator granted to respondent an imperative special power of appointment over testator's estate in favor of appellant. Although the phrase "power of appointment" has been defined differently by various courts, the essence of such a power is that it gives to the donee the power to cause some person to receive less of the subject property and another person to receive more. ⁴ The Restatement of Property § 318 (1940) defines "power of appointment" as follows:

[A] power created or reserved by a person (the donor) having property subject to his disposition enabling the donee of the power to designate, within such limits as the donor may proscribe, the transferees of the property or the shares in which it shall be received.

Contrastingly, the Restatement (Second) of Property § 11.1 (1984) defines "power of appointment" in a more inclusive manner: "A power of appointment is authority, other than as an incident of the beneficial ownership of property, to designate recipients of beneficial interests in property." Under either of these definitions, the donor of an alleged power must intend to create a power, must indicate by whom the power is held, and must specify the property over which the power is to be exercised. ⁵ Appellant's argument stumbles over the first of these three hurdles.

Although no particular words are necessary to create a power of appointment, ⁶ there are limitations on the degree of ambiguity that will be tolerated when ruling whether or not such a power exists. ⁷ To create a power of appointment, words clearly indicating the donor's intent must be used. Indeed, a power is not created unless such intention is plainly expressed or clearly implied. ⁸ Thus, a power of appointment is not to be inferred except from a clear and unequivocal indication of such intent. ⁹

Appellant principally relies upon In re Rowlands' Estate, ¹⁰ but that case offers little help to appellant on this appeal. In one portion of the Rowlands will, "Lucy Cuthbert or Mr. Hugh Cuthbert, Sr., of Phoenix" was nominated to serve as executor. ¹¹ The disputed portion of the will provided: "All things not mentioned in my Will I leave it up to Mr. and Mrs. Hugh Cuthbert, Sr., to distribute to any of my close friends. Please give generously to Maria Discombe who has been a faithful maid." ¹² In Rowlands, the testatrix distinguished between the executor and the donees and then clearly set forth her intent by giving the donees the power to "dispose" of the residuary of her estate. The Rowlands court was not so much concerned with whether a power was created, but rather the nature of the created power. ¹³

In contrast, testator's use of the words "insure for her comfort, security and her fair portion" is insufficient to support the requisite intention to create a power of appointment; the words do not express an intention to bestow upon another the power to dispose of identified property. ¹⁴ This conclusion is reinforced by the fact that testator failed to expressly distinguish between his executor and his executor as a donee, thereby weakening the link between the alleged donative words in the will and the alleged donee of the power. In this case, testator did not clearly express his intention to create a power. Instead, the disputed language must be interpreted as being merely precatory in nature. This conclusion is not in conflict with the probate code. The presumption against intestacy used when construing testamentary instruments is based upon the assumption that by executing a will, the testator intended for his property to pass testate. To this end, a will first and foremost must be construed according to the intent of the testator as expressed from the words of the will and circumstances under which it was executed. ¹⁵ In this case, testator's will merely expressed his intent that his wife be properly cared for, but did not dispose of any property or create any power of appointment.

Appellant relies on four rules of construction to support her second suggested interpretation of testator's will, namely, that it is reasonable to interpret the dispositive provisions of the will as a devise to appellant of the testator's entire estate. Appellant relies upon (1) the presumption against intestacy; ¹⁶ (2) the rule that a will "should be read and understood as a whole, and meaning given to all of its provisions...