Estate K. Starkey v. United States ( 2000 )


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  • In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 99-2357
    Estate of Kenneth E. Starkey,
    Plaintiff-Appellant,
    v.
    United States of America,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Southern District of Indiana, Indianapolis Division.
    No. 98 C 343--Larry J. McKinney, Judge.
    Argued February 25, 2000--Decided August 17, 2000
    Before Bauer, Ripple, and Manion, Circuit Judges.
    Manion, Circuit Judge. Kenneth Starkey was
    apparently both financially successful and
    generous. As he neared death, he made out his
    last will and testament and set up a charitable
    trust. These documents were drafted by his
    attorney son, who had little or no experience
    drafting such instruments, and the inartful
    language caused problems. The Internal Revenue
    Service concluded that the charitable trust Mr.
    Starkey created did not qualify for a charitable
    deduction. As a result, it denied the Estate a
    charitable deduction worth well over one million
    dollars. This resulted in an estate tax
    deficiency of over one half million dollars. The
    district court entered summary judgment in favor
    of the IRS in the Estate’s suit to recover a tax
    refund. We hold that the documents, while
    inartfully drafted, adequately demonstrate that
    Mr. Starkey intended to create a charitable trust
    that qualifies for the charitable deduction. We
    therefore reverse the district court entry of
    summary judgment in favor of the IRS./1
    I. Background
    Kenneth Starkey’s will created an educational
    trust for his grandchildren and a charitable
    trust. Section 5.02 of the will, the provision at
    issue, instructed the trustees of the charitable
    trust to distribute the income as follows:
    Half of the income from the trust is to go to
    Lawndale Community Church in Chicago, Illinois
    provided that Wayne Gordon is still the pastor of
    it at the time of my death and that church will
    receive this until the time that he is no longer
    pastor. The Trustees are to manage the property
    of the Trust for the benefit of this beneficiary,
    missionaries preaching the Gospel of Christ, and
    Milligan College.
    (Emphasis added.) Section 5.03 authorized the
    trustees to distribute the net income or corpus
    of the trust to or for the benefit of a
    beneficiary "at any time and from time to time as
    the Trustees deem advisable." One week later, Mr.
    Starkey executed the following codicil to his
    will:
    My Last Will and Testament in Items IV and V,
    created two trusts, the former an educational
    trust and the latter a charitable trust. My Last
    Will and Testament further provided that the
    trusts would eventually end even though they were
    educational and charitable in nature and
    therefore not subject to the Rule against
    Perpetuities twenty-one years after the death of
    my last descendant alive at the time of my own
    demise. My last Will and Testament did not
    dispose of the residue of the trusts upon the
    occurrence of the terminating events. I
    specifically leave the residues of both trusts to
    Milligan College.
    Mr. Starkey died about three weeks later. The
    Estate claimed a charitable deduction of about
    $1.3 million on its federal estate tax return for
    the amount Mr. Starkey had left to the charitable
    trust and asked the IRS to determine that the
    trust was exempt from taxation. The IRS declined
    to do so. It noted various defects in the trust
    instrument and issued a directive on how the
    Estate might remedy them. See Estate of Starkey
    v. United States, 
    58 F. Supp.2d 939
    , 944 (S.D.
    Ind. 1999).
    In response, the Estate petitioned the state
    probate court to amend Section 5.02 of the will
    to allow the trustees, in their discretion, to
    distribute trust income to eight specific
    beneficiary groups (in effect replacing the
    "missionaries" phrase in Section 5.02 with the
    eight specific groups). The motion stated that
    the groups "all fit the description of those
    intended by the testator to benefit from this
    trust, "[Lawndale Community Church], missionaries
    preaching the Gospel of Christ, and Milligan
    College." The Estate then filed an amended
    petition stating that the part of Section 5.02
    referring to "missionaries preaching the Gospel
    of Christ" had "created confusion as to whether
    the phrase . . . defines the beneficiary Lawndale
    Community Church or whether missionaries
    preaching the Gospel of Christ creates a
    [separate] class of beneficiaries." The amended
    petition no longer sought to substitute
    specifically named groups for the "missionaries"
    phrase; it retained the phrase and argued that it
    was meant simply to describe the Lawndale
    Community Church. The Estate requested the state
    court to construe the phrase accordingly.
    In the verified petition, Mr. Starkey’s son
    stated that the Lawndale Community Church was
    well known for its missionary program and that,
    in fact, its missionary program was the only such
    program his father supported. The Estate also
    offered the testimony of Dr. Lynn Franken, a
    former associate dean of the College of Arts and
    Sciences at Butler University, who received her
    doctorate in English language and literature. Dr.
    Franken is trained as a grammarian, someone who
    studies the relationship between words and
    meaning. She opined that the "missionaries"
    phrase did not create a separate class of
    beneficiaries, but merely described the Lawndale
    Community Church. The probate court agreed and
    construed the phrase "missionaries preaching the
    Gospel of Christ" in Section 5.02 "as merely
    descriptive of Lawndale Community Church" and "as
    not creating a separate class of beneficiaries to
    which the trustees could distribute income or
    corpus."
    The next day the IRS issued the Estate an estate
    tax deficiency in the amount of $520,178 (plus
    penalties). Despite the probate court’s
    construction of the will, the IRS maintained that
    the will created three trust beneficiaries: the
    Lawndale Community Church, a group of
    missionaries, and Milligan College. The IRS thus
    disallowed the Estate a charitable deduction
    because the trust assets were split between
    charitable and noncharitable beneficiaries
    (concluding that while the Lawndale Community
    Church and Milligan College were both qualified
    charities, a group of unknown missionaries was
    not) and the amount of the charitable bequest was
    unascertainable.
    Shortly thereafter, the Estate petitioned the
    probate court to appoint a guardian ad litem to
    represent the interests of the unknown
    "missionaries preaching the Gospel of Christ" so
    they could appeal the probate court’s ruling that
    they--whoever they might be--are not
    beneficiaries. The Indiana Court of Appeals, in
    an unpublished opinion, affirmed the ruling of
    the probate court. It held that the
    "missionaries" phrase "is most logically
    interpreted in the context of the will as
    standing in apposition to, and describing, the
    Lawndale Community Church." The guardian sought
    transfer to the Indiana Supreme Court, but it
    declined to hear the case.
    After the state court proceedings concluded, the
    Estate paid the assessment and filed a refund
    claim with the IRS. The Estate claimed that the
    trust qualified for a charitable deduction
    because in his will, as interpreted by the state
    courts, Mr. Starkey had intended to create only
    two beneficiaries (the Lawndale Community Church
    and Milligan College), both of which are
    charities. The IRS disallowed the refund claim,
    and the Estate filed this action against the
    United States under 28 U.S.C. sec. 1346(a)(1)
    (allowing taxpayers to sue for relief from
    erroneously assessed taxes).
    Both sides moved for summary judgment. The
    district court framed the issue as whether Mr.
    Starkey had "intended that the portion of his
    estate transferred to the [charitable] trust
    would be used by the trustees exclusively for
    charitable purposes, and whether the language he
    used in the grant to the trust restricted the
    trustees to such use . . . ." Estate of Starkey,
    
    58 F. Supp.2d at 955
    . The district court held
    that the probate and appellate courts’ decisions
    did not bind it, and it was only required to give
    them "proper" weight. The court determined that
    "proper" was not much because the probate court
    proceedings were not adversarial due to the
    absence of the IRS. 
    Id. at 951
    . Yet, although the
    United States received notice of both the probate
    and appellate proceedings, it did not contest
    them or even appear. The district court disagreed
    with the state courts’ interpretation of the
    "missionary" phrase and concluded that Mr.
    Starkey more likely intended to benefit a group
    of missionaries in addition to the church and the
    college. 
    Id. at 956-57
    . Because the trustees had
    the discretion to distribute an undesignated
    amount of trust corpus or income to a group of
    "missionaries" potentially for personal purposes,
    the court held that Mr. Starkey had failed to
    create a charitable trust. 
    Id. at 957-58
    . The
    district court ruled that the Estate was not
    entitled to a charitable deduction and entered
    judgment for the Government. The Estate appeals
    this ruling.
    II.   Discussion
    We review a grant of summary   judgment de novo.
    Miller v. American Family Mut.   Ins. Co., 
    203 F.3d 997
    , 1003 (7th Cir. 2000). The   IRS’s calculation
    of tax assessments is presumed   to be correct, and
    the taxpayer bears the burden of rebutting this
    presumption and proving he is entitled to a
    refund. United States v. Janis, 
    428 U.S. 433
    , 440
    (1976).
    A.   Relevant Tax Principles
    The Internal Revenue Code imposes a tax "on the
    transfer of the taxable estate of every decedent
    who is a citizen or resident of the United
    States." 26 U.S.C. sec. 2001(a). A decedent’s
    gross estate includes "the value at the time of
    his death of all property, real or personal,
    tangible or intangible, wherever situated", 
    id.
    at sec. 2031(a), and the value of any property
    interests the decedent has transferred (including
    by trust) within three years of his death (with
    some exceptions). 
    Id.
     at sec. 2035. A decedent’s
    taxable estate is determined by deducting from
    the gross estate transfers for public, charitable
    or religious uses (among other things). 
    Id.
     at
    sec. 2055(a). The entire amount transferred to a
    trust for the benefit of a qualified charity is
    deductible. 
    Id.
     at sec. 2055(a)(3)./2
    To qualify for the charitable deduction, the
    charitable bequest must be ascertainable at the
    time of the transfer. Estate of Marine v.
    Commissioner of Internal Revenue, 
    990 F.2d 136
    ,
    138 (4th Cir. 1993) ("Ascertainability at the
    date of death of the amount going to charity is
    the test."). If a will provides a trustee with
    discretion to distribute trust assets to
    charities and to individuals for their personal
    use, the amount bequeathed to the charities might
    not be ascertainable at the time of the transfer.
    See Merchants Nat. Bank of Boston v. Commissioner
    of Internal Revenue, 
    320 U.S. 256
    , 257-58, 263
    (1943); see also Estate of Marine, 
    990 F.2d at 138-39
    . Such a trust, where the assets are
    "split" between charitable and noncharitable
    beneficiaries, is known as a "split-interest"
    trust. See 26 U.S.C. sec. 2055(e)(2). With such a
    trust, the estate can only take a charitable
    deduction if the charitable interest of the trust
    is presently ascertainable. See 
    id.
     at sec.sec.
    2055(e)(2)(A) & (B), 2055(e)(3); see also Treas.
    Reg. sec. 20.2055-2(a) ("If a trust is created or
    property is transferred for both a charitable and
    a private purpose, deduction may be taken of the
    value of the charitable beneficial interest only
    insofar as that interest is presently
    ascertainable, and hence severable from the
    noncharitable interest.").
    The will’s codicil clearly states that Mr.
    Starkey intended to set up a charitable trust,
    and the IRS acknowledges that this was indeed his
    intent. Its dispute with the Estate is over the
    type of charitable trust he intended to create
    and, more specifically, whom he intended to
    benefit. The IRS acknowledges that if Mr. Starkey
    intended the "missionaries" phrase to create two
    beneficiaries (Lawndale Community Church and
    Milligan College, both of which are qualified
    charities), then the value of the charitable
    interest would be ascertainable and hence
    deductible. In that case, the trust would not be
    a split-interest trust because both the trust
    beneficiaries would be qualified charities and
    the trust assets could only be used for their
    benefit. As a result, the charitable portion of
    the trust would be ascertainable (it would be the
    entire value of the trust)./3 If, however, Mr.
    Starkey intended to benefit a group of
    missionaries in addition to the church and the
    college, the IRS argues that then Mr. Starkey
    will have created a split-interest trust with
    both charitable and noncharitable beneficiaries.
    In that case the trust assets would not have been
    specifically divided among the charitable and
    noncharitable beneficiaries. Because the
    charitable portion of the trust would thus not be
    ascertainable, the Estate would not qualify for a
    charitable deduction. See Treas. Reg. sec.
    20.2055-2(a). We agree with the IRS that this is
    the "ultimate issue" and thus must now determine
    whom Mr. Starkey intended to assist financially
    in preaching the Gospel of Christ, and if the
    will sufficiently expresses his intent.
    B.   Kenneth Starkey’s Probable Intent
    Both parties agree that Indiana law governs our
    analysis of Mr. Starkey’s will. Estate of Bowgren
    v. Commissioner of Internal Revenue, 
    105 F.3d 1156
    , 1161 (7th Cir. 1997). In Indiana, the
    primary goal in interpreting a will is to
    determine and give effect to the testator’s
    intent as expressed in the will, and determining
    this intent is a question of law. Gladden v.
    Jolly, 
    655 N.E.2d 590
    , 592 (Ind. Ct. App. 1995);
    Hershberger v. Luzader, 
    654 N.E.2d 841
    , 842 (Ind.
    Ct. App. 1995). The Estate notes that the probate
    court determined that Mr. Starkey intended the
    charitable trust to have only two beneficiaries,
    and it argues that the district court should have
    adopted this determination of Mr. Starkey’s
    intent because it was affirmed by the Indiana
    Court of Appeals, "the highest Indiana Court
    which has addressed the issue."
    The Supreme Court has made clear that we are not
    bound by the probate court’s decision: "where the
    federal estate tax liability turns upon the
    character of a property interest held and
    transferred by the decedent under state law,
    federal authorities are not bound by the
    determination made of such property interests by
    a state trial court." Commissioner of Internal
    Revenue v. Estate of Bosch, 
    387 U.S. 456
    , 457
    (1967). Intermediate state appellate decisions,
    however, are presumed to be a correct indicator
    (or "datum") of state law which we may not
    disregard unless other decisions convince us
    "that the highest court of the state would decide
    otherwise." 
    Id. at 465
     (emphasis omitted). But
    Bosch also tells us that if a state’s supreme
    court has not resolved an issue, we have to apply
    what we "find to be the state law after giving
    ’proper regard’ to relevant rulings of other
    courts of the State." 
    Id.
    While the Supreme Court did not expand upon what
    it meant by "proper regard," we note that the
    Indiana Court of Appeals did not publish its
    decision. As a result, it is questionable whether
    we may simply presume that it correctly indicates
    Indiana law--whether we may "properly regard" it
    as precedent--even though it is, of course,
    directly on point. See Ind. R. App. P. 15(A)(3)
    (unpublished decisions shall not "be regarded as
    precedent nor cited before any court except for
    the purpose of establishing the defense of res
    judicata, collateral estoppel or the law of the
    case."); Horn v. A.O. Smith Corp., 
    50 F.3d 1365
    ,
    1370 n.10 (7th Cir. 1995) (quoting Ind. R. App.
    P. 15(A)(3)) ("Although admittedly on point,
    Colglazier is an unpublished memorandum opinion,
    and Indiana’s rules make plain that such opinions
    shall not ’be regarded as precedent . . . .’").
    But while an unpublished opinion is normally not
    presumed to be an indicator or "datum" of state
    law as a published (precedential) decision would
    be, Bosch, 
    387 U.S. at 465
    , we note that arguably
    (although no one seems to have made the argument)
    it is the law of the case, which is one of the
    exceptions under Ind. R. App. P. 15(A)(3) for
    when unpublished decisions "may be regarded as
    precedent." Supra. Anyway, regardless of the
    extent to which it may be viewed as a "datum" of
    state law, we are persuaded by the Indiana Court
    of Appeals’ analysis in this matter.
    The Court of Appeals concluded that the
    "missionaries" phrase was ambiguous and then
    construed this ambiguity. A will is ambiguous if
    it is reasonably susceptible to different
    interpretations. Hauck v. Second Nat’l Bank of
    Richmond, 
    286 N.E.2d 852
    , 863 (Ind. Ct. App.
    1972). In this case, the Estate contends that the
    "missionaries" phrase is unambiguous and modifies
    "this beneficiary" (which everyone agrees refers
    to the Lawndale Community Church). This is an
    entirely reasonable grammatical construction. See
    In re City of Fort Wayne’s Petition to Establish
    a Conservancy Dist., 
    484 N.E.2d 584
    , 589 (Ind.
    Ct. App. 1985) ("in the phrase ’freeholder . . .
    , who owns land,’ the clause ’who owns land’ is a
    descriptive clause. Note the clause is set off
    from the antecedent noun by a comma indicating a
    rather loose relationship to ’freeholder.’")./4
    The IRS, though, seems to contend that this
    phrase is ambiguous and that it should be
    construed to denote a second beneficiary in a
    series of three beneficiaries. On its face, this
    construction is also plausible. Cf. Pleasureland
    Museum, Inc. v. Dailey, 
    422 N.E.2d 754
    , 756 (Ind.
    Ct. App. 1981) (In "the phrase ’stores and
    shops’. . . the words are connected with the
    conjunctive ’and,’ and are set apart from the
    other items in the [series] by a comma.").
    Because the "missionaries" phrase is reasonably
    susceptible to different meanings, we agree that
    it is ambiguous. As a result, and like the
    Indiana Court of Appeals, we must use rules of
    construction to determine Mr. Starkey’s intent.
    See 
    id.
     (ambiguity must exist before a court may
    construe a will)./5
    Rules of grammar may be used to construe a will.
    See Donahue v. Watson, 
    411 N.E. 741
    , 750 (Ind.
    Ct. App. 1980); Nichols v. Alexander, 
    152 N.E. 863
    , 864 (Ind. Ct. App. 1926) (en banc); cf.
    Faris Mailing, Inc. v. Indiana Dept. of State
    Revenue, 
    557 N.E.2d 713
    , 716 (Ind. Tax 1990)
    ("rules of grammar can be used to construe an
    ambiguous statute"). We are reluctant, however,
    to hang our hat on the cases the parties have
    cited to support their competing interpretations
    of the "missionaries" phrase (modifier versus an
    item in a series). In the case the Estate cites,
    the court was determining what a phrase modified;
    it was not passing upon the question presented in
    this case: whether a phrase is a modifying phrase
    or a separate item in a series. See Donahue (and
    other cases), note 4, supra. And the case the IRS
    cites, Cape v. State, 
    400 N.E.2d 161
    , 164 (Ind.
    Ct. App. 1980), also did not address this
    specific issue. See also Pleasureland Museum,
    Inc., supra.
    However, Dr. Franken (the English professor whom
    the Indiana courts relied upon as a grammatical
    aid) did address this precise question. She
    concluded that the "missionaries" phrase most
    likely modified "this beneficiary" because for
    the phrase to denote an item in a series would be
    "inconsistent . . . with the parity of value
    generally intended by such a seriatim listing. It
    is not a reasonable interpretation that the
    decedent could have intended an elaborate item in
    the middle surrounded by two very specific and
    short items." She also rejected the notion of a
    seriatim listing because "[r]ead as three items
    in a series, the phrase fails to produce three
    distinct categories." Dr. Franken’s expert
    opinion provides a sound grammatical reason for
    the Indiana Court of Appeals to conclude "that
    the phrase ’missionaries preaching the Gospel of
    Christ’ is most logically interpreted in the
    context of the will as standing in apposition to,
    and describing, the Lawndale Community Church."
    Furthermore, all the evidence indicates that
    Kenneth Starkey intended to benefit the
    missionary program of the Lawndale Community
    Church, not any and all Christian
    missionaries./6 Specifically, his son stated in
    the Estate’s verified petition in state court
    that the Lawndale Community Church is well known
    for its missionary programs that preach the
    Gospel of Christ, and its missionary program was
    the only such program his father was known to
    support.
    This case is thus similar to Chappell v.
    Missionary Society of Churches of Christ in
    Indiana, 
    29 N.E. 924
     (Ind. Ct. App. 1892). Ms.
    Chappell bequeathed $500 to the "Christian
    Missionary Society of this state." The Missionary
    Society of the Churches of Christ in Indiana
    filed a petition claiming to be the missionary
    society listed in the will. The Society averred
    that Ms. Chappell was a member of the Church of
    Christ in Indiana. 
    Id.
     The Society also asserted
    that it was the only missionary society in
    Indiana affiliated with Ms. Chappell’s church,
    and that it was commonly known as the "Christian
    Missionary Society" of this state. Id. at 924-25.
    Relying on the Indiana Supreme Court’s decision
    in Skinner v. Harrison Tp., 
    18 N.E. 529
     (Ind.
    1888), the Chappell court held that because the
    ambiguity concerned the "object of the testator’s
    bounty," the ambiguity was latent, and therefore
    it was proper for the trial court to rely on
    extrinsic evidence in determining that Ms.
    Chappell intended to benefit the Society. 29 N.E.
    at 925./7
    The Indiana Court of Appeals in this case
    applied Chappell and observed that "there would
    appear to be . . . no persons or corporations in
    existence who precisely answer to the description
    ’missionaries preaching the Gospel of Christ.’"
    (Emphasis in original.) "Therefore," it
    concluded, "the trial court did not err in
    admitting extrinsic evidence in determining the
    testator’s intention regarding the object of his
    bounty." The Court of Appeals’ analysis was
    consistent with Indiana law. See Chappell and
    note 6, supra. The evidence about the missionary
    program Mr. Starkey supported was not introduced
    to create a new instrument or vary the will’s
    terms. See Hauck, 
    286 N.E.2d at 862
    . Rather, the
    ambiguity in Section 5.02 "was easily explained
    by resort to extrinsic evidence." Superbird
    Farms, Inc. v. Perdue Farms, Inc., 
    970 F.2d 238
    ,
    244 (7th Cir. 1992) (emphasis added) (applying
    Indiana law), overruled on other grounds by
    Medcom Holding Co. v. Baxter Travenol Lab., Inc.,
    
    106 F.3d 1388
    , 1397 n.3 (7th Cir. 1997). This
    evidence compels us, as it did the Indiana
    probate court and Court of Appeals, to conclude
    that because Mr. Starkey intended to benefit the
    missionary program of the Lawndale Community
    Church, the "missionaries" phrase modifies or
    describes "this beneficiary" (the Lawndale
    Church), as opposed to listing another class of
    beneficiaries.
    The IRS offers three reasons why the
    "missionaries" phrase should be interpreted as
    referring to a distinct class of beneficiaries.
    It first argues that it does not make sense to
    interpret the "missionaries" phrase as modifying
    the Lawndale Church ("this beneficiary") because:
    a) Mr. Starkey already described the church in
    the first part of Section 5.02 by specifying its
    pastor (Wayne Gordon) and its location (Chicago,
    Illinois); and b) the church is a singular noun
    while "missionaries preaching the Gospel of
    Christ" is plural. Dr. Franken, however,
    explained away both of these asserted
    difficulties with the state courts’
    interpretation of Section 5.02: "Read as an
    appositive renaming the noun ’beneficiary,’ the
    phrase ’missionaries preaching the Gospel of
    Christ’ characterizes the Lawndale Community
    Church in a way that explains and justifies the
    nature of the bequest."
    The IRS next argues that the "spendthrift
    clause" in Section 5.05 "serves no purpose if the
    only beneficiaries of the will were Lawndale
    Community Church and Milligan College, since
    those entities do not have a ’life’ and are not
    subject to claims for alimony or spousal support.
    By contrast, the clause serves a purpose if the
    trustees are authorized to distribute trust
    assets to individual missionaries . . . ."/8
    According to the IRS, the state courts’
    interpretation of the "missionaries" phrase would
    thus violate the principle that "in construing a
    will effect should if possible be given to every
    provision thereof and the will must not be
    interpreted to render any part meaningless". See
    Diaz v. Duncan, 
    406 N.E.2d 991
    , 1000 (Ind. Ct.
    App. 1980).
    We disagree with the IRS that the state courts’
    interpretation of the phrase would render the
    spendthrift clause meaningless. The church is a
    (not-for-profit) corporation. Thus, under the
    Estate’s interpretation of the phrase, the
    "spendthrift clause" would still protect the
    trust from claims of the Church’s creditors. The
    clause would also protect the trust from claims
    for alimony from a former spouse of Wayne Gordon.
    Rev. Gordon is specifically referred to in the
    will and, as pastor, he is either the perceived
    or actual leader of Lawndale Community Church. It
    is of course unusual for a testator to worry that
    a pastor might have his assets (or those over
    which he had some influence) subject to claims
    for alimony. But it is just as unusual for a
    testator to worry that Christian missionaries
    might have their assets subject to claims for
    alimony. See 
    id.
     (Courts should not reject any
    provision "to which a reasonable effect can be
    given.") (emphasis added). These equally bizarre
    scenarios lead us to agree with the Estate that
    the "spendthrift clause" was most probably
    included because the will’s drafter, Mr.
    Starkey’s son, admittedly had little or no
    experience drafting wills and inserted the clause
    as boilerplate language from a form book.
    In this situation, we will not reject the state
    courts’ interpretation of the "missionaries"
    phrase even if it renders part of the
    "spendthrift clause" meaningless. Significantly,
    the often-quoted rule the IRS cites states that
    "if possible" a will should be interpreted to
    give effect to every provision. 
    Id.
     Indiana
    courts have declined to apply this rule when
    doing so would thwart the testator’s intent. See
    Matter of Estate of Walters, 
    519 N.E.2d 1270
    ,
    1272-73 (Ind. Ct. App. 1988) (citing principle
    from Diaz but then declining to give effect to
    the "mischievous words per stirpes" to thwart an
    intent which was otherwise clear: "We are of the
    opinion that its use was merely a legalistic
    flourish, devoid of any expression of intent.").
    Here, under either the Estate’s or the IRS’s
    interpretation, the phrase has little, if any,
    applicable meaning. The extrinsic evidence,
    however, is persuasive that the "missionaries"
    phrase means the Church. Using the "spendthrift
    clause" to create a separate class of
    beneficiaries, then, would thwart the testator’s
    intent. We do not believe that the Indiana
    Supreme Court would agree with this use of Diaz.
    See Keplinger v. Keplinger, 
    113 N.E. 292
    , 293
    (Ind. 1916) (after testator’s intent has been
    ascertained, "ambiguous terms not reconcilable
    therewith may be disregarded.")./9
    Lastly, the IRS argues that the state courts’
    construction of the "missionaries" phrase should
    be rejected because "the state court proceedings
    . . . were instituted for the sole purpose of
    decreasing the estate’s tax liability." We have
    no doubt that they were; it is not unusual not to
    want assets, which have already been taxed, to be
    taxed again. This desire is not impermissible.
    The only inquiry here is whether Mr. Starkey
    intended to draft his will so as to permissibly
    reduce, or even avoid, his estate’s tax
    liability. In this regard, the IRS candidly
    acknowledged at oral argument that Mr. Starkey
    did not have an illegal intent. The charitable
    trust was not a "tax dodge." Mr. Starkey was not,
    for example, trying to shuffle money between
    family members to "shelter it" from tax while
    really keeping it within the family./10 His
    charitable intent, and his estate’s attempt to
    implement it, were both perfectly
    permissible./11
    III.   Conclusion
    Dr. Franken’s analysis of Section 5.02 of the
    will and the extrinsic evidence of Mr. Starkey’s
    intent show that he intended his charitable trust
    to have only two beneficiaries (the church and
    the college). Because our objective in construing
    Mr. Starkey’s will is to determine and give
    effect to his true intent, "rather than have that
    intent frustrated," Gladden, 
    655 N.E.2d at 592
    ,
    we hold that "missionaries preaching the Gospel
    of Christ" in Section 5.02 of Kenneth Starkey’s
    will modifies "this beneficiary" ("the Lawndale
    Community Church"). As so construed, the bequest
    to the trust qualifies for a charitable deduction
    under 26 U.S.C. sec. 2055(a)(3).
    The judgment of the district court in favor of
    the defendant is REVERSED and the case is remanded
    for judgment to be entered in favor of the
    plaintiff.
    /1 The IRS also denied the Estate a marital
    deduction it had claimed on its estate tax
    return. The Estate does not challenge this denial
    on appeal.
    /2 "For purposes of the tax imposed by section 2001,
    the value of the taxable estate shall be
    determined by deducting from the value of the
    gross estate the amount of all bequests,
    legacies, devises, or transfers to a trustee or
    trustees . . . but only if such contributions or
    gifts are to be used by such trustee or trustees
    . . . exclusively for religious, charitable,
    scientific, literary, or educational purposes, or
    for the prevention of cruelty to children or
    animals, such trust . . . would not be
    disqualified for tax exemption under section
    501(c)(3) by reason of attempting to influence
    legislation, and such trustee or trustees . . .
    does not participate in, or intervene in . . . ,
    any political campaign on behalf of (or in
    opposition to) any candidate for public office.
    
    Id.
    /3 The IRS notes that the church and the college are
    qualified charities, and since trust assets could
    only be used for their benefit under this
    interpretation of Mr. Starkey’s will, the IRS
    agrees that the will would sufficiently limit the
    trustees’ discretion. The IRS thus disagrees with
    the district court, which held that even if the
    "missionaries" phrase were interpreted simply to
    refer to the church, the bequest still would not
    qualify for a deduction because the will did not
    sufficiently restrict the trustees’ discretion.
    See Estate of Starkey, 
    58 F. Supp.2d at 952
    , 955-
    57. We agree with the IRS that if the trust is
    interpreted to have only the two beneficiaries,
    then the trustees’ discretion is sufficiently
    limited for the bequest to qualify for the
    charitable deduction.
    /4 Cf. Spears v. State, 
    412 N.E.2d 81
    , 82 (Ind. Ct.
    App. 1980) ("Commas set off the modifying phrase
    ’by visible or audible means’ . . . ."); Donahue
    v. Watson, 
    411 N.E.2d 741
     (Ind. Ct. App. 1980)
    ("As an extension of the previous phrase the
    provision for surviving issue can only be read as
    a modification of the surviving child’s
    interest."); Freigy v. Gargaro Co., 
    60 N.E.2d 288
    , 293 (Ind. 1945) ("The last phrase, set off
    by commas, modifies all of the preceding phrase .
    . . .").
    /5 Before attempting to construe an ambiguity, a
    court must determine whether Mr. Starkey’s
    "intent is clearly articulated in other
    provisions of the will." In re Estate of Grimm,
    
    705 N.E.2d 483
    , 498 (Ind. Ct. App. 1999) (citing
    Pleska v. Zakutansky, 
    459 N.E.2d 745
    , 748-49
    (Ind. Ct. App. 1984)). Other provisions of Mr.
    Starkey’s will do not clearly indicate his intent
    with respect to the "missionaries" phrase.
    /6 In Indiana, extrinsic evidence may be used to
    resolve a "latent" ambiguity but not a "patent"
    ambiguity. See McConnell v. Robbins, 
    140 N.E. 59
    ,
    61 (Ind. 1923); see also First Federal Sav. Bank
    of Ind. v. Key Markets, Inc., 
    559 N.E.2d 600
    , 607
    (Ind. 1990). Unlike a "patent" ambiguity, a
    "latent ambiguity arises not upon the face of the
    instrument by virtue of the words used, but
    emerges in attempting to apply those words in the
    manner directed in the instrument." Hauck, 
    286 N.E.2d at 862
    . Thus, with a latent ambiguity,
    "introduction of extrinsic evidence merely
    completes the instrument by identifying its
    object or subject matter." 
    Id.
     But with a patent
    ambiguity, where "the writing is too uncertain
    for a settled construction, admission of
    extrinsic evidence would, in effect, create a new
    instrument." 
    Id.
     The ambiguity in this case is
    latent. It arose when the IRS attempted to apply
    the "missionaries" phrase to determine whom, if
    anyone, besides the church and the college could
    receive proceeds from the trust. Id.; see also
    Eckart v. Davis, 
    631 N.E.2d 494
    , 497 (Ind. Ct.
    App. 1994). Moreover, an ambiguity concerning
    whom the testator intended to benefit is
    typically latent. See Hauck, 
    286 N.E.2d at 862
    ;
    see also Huyler’s v. Gas Appliance Supply Corp.,
    
    257 N.E.2d 831
    , 836 (Ind. Ct. App. 1970) (latent
    ambiguity exists when description "is shown to
    fit different pieces of property").
    /7 The court stated that "[n]o principle is better
    settled than that parol evidence is admissible to
    remove latent ambiguities, and, when there is no
    person or corporation in existence precisely
    answering to the name or description in the will,
    parol evidence may be given to ascertain who were
    [the beneficiaries] intended by the testator."
    
    Id.
     (emphasis added).
    /8 Section 5.05 provides that "[n]o interest under
    this instrument shall be transferable or
    assignable by any beneficiary or be subject
    during his life to the claims of his creditors or
    to any claims for alimony or for the support of
    his spouse."
    /9 It is also difficult to believe that Mr. Starkey,
    who was very specific about which church was to
    benefit from his trust (the "Lawndale Community
    Church in Chicago, Illinois"), and about the
    conditions under which the church would be
    allowed to do so ("provided that Wayne Gordon is
    still the pastor of it at the time of my death"),
    would then turn around and give his money to
    unknown missionaries of whatever stripe--Baptist,
    Catholic, Mormon--without any real conditions
    (just that they preach "the Gospel of Christ").
    /10 Indeed, because the money for the charitable
    deduction was (and is) clearly going outside the
    family one way or another, Mr. Starkey’s
    relatives have nothing to gain or lose from the
    outcome of this case. The only people who stand
    to lose under the IRS’s proposed construction are
    the charities themselves if half the trust corpus
    goes to the United States. We believe an Indiana
    court would not find this to be Mr. Starkey’s
    intent. See Pleska, 
    459 N.E.2d at 749
     ("The
    specificity of Peter’s bequests supports a
    determination that he did not intend for his
    probate estate to be exhausted by the payment of
    [estate] taxes on the non-probate assets.").
    /11 The IRS points out that the Estate initially
    petitioned the probate court to amend the will to
    substitute eight specific groups for
    "missionaries preaching the Gospel of Christ,"
    stating that the groups "all fit the description
    of those intended by the testator to benefit from
    this trust, "[Lawndale Community Church],
    missionaries preaching the Gospel of Christ, and
    Milligan College." In light of this petition, the
    IRS argues that the Estate cannot now maintain
    that Mr. Starkey intended the "missionaries"
    phrase merely to modify "this beneficiary." The
    Estate’s course of action in this regard, though,
    is understandable. At this time, the Estate was
    still represented by Mr. Starkey’s son, who did
    not have expertise in this area. He had been
    corresponding with the IRS about how the trust
    could qualify for a charitable deduction, and it
    was in response to a directive from the IRS that
    he filed the petition in question. The petition
    was effectively withdrawn when the Estate filed
    an amended petition in which the Estate
    represented that the "missionaries" phrase was
    descriptive. Under these circumstances, we do not
    deem the Estate’s actions with the initial
    (superceded) petition as indicative of Mr.
    Starkey’s true intent.