In Re the Estate of Pickrell , 14 Kan. App. 2d 375 ( 1990 )

Rulon, J.:

Thomas Pickrell and Patricia Pickrell, the son and daughter-in-law of Joyce Evans Pickrell, deceased, appeal from the district court’s judgment concerning apportionment of death taxes and administration expenses. We affirm.

On June 9, 1982, Joyce Evans Pickrell executed her last will and testament and a trust indenture establishing the Joyce Evans Pickrell Trust. Carl W. Sebits and Bank IV Wichita were named co-trustees and co-executors.

Article IV, Section 12 of the trust indenture gave the trustees the power to pay all taxes imposed on the trust estate. On . April 23, 1987, pursuant to the powers retained in the trust indenture, Joyce Evans Pickrell amended Section 12 to provide for apportionment of death taxes and administration expenses. The amendment directed and authorized the trustees to pay and distribute to the executors from the trust assets the trust’s proportionate share of federal estate and state inheritance taxes and administration expenses. The amendment further stated that it was the settlor’s intent that the trust assets and the trust and estate beneficiaries bear their respective proportionate share of all taxes and expenses.

The trust provided that, upon Joyce Evans Pickrell’s death, the trust estate would be divided into four equal shares with one share each to be given to her son, Thomas Pickrell, her daughter, Patricia Pickrell Smith Beilis, and two nieces. -

In the second article of her will, Joyce Evans Pickrell directed that all estate and inheritance taxes and administration expenses shall be paid out of the residue of my probate estate.” The will further provided that the executors were not to be reimbursed or to collect any part of the taxes and expenses from any person or beneficiary under the will, and there could be no charge or recovery based on proration, apportionment, contribution, or distribution against non-probate estates or persons not deriving benefits under the will.

Under the fifth article of her will, Joyce Evans Pickrell exercised her power of appointment over the Lloyd R. Pickrell Trust No. 1, a testamentary trust created by her deceased husband. Using the words “appoint, devise and bequeath,” Joyce Evans Pickrell appointed the entire trust estate of her husband’s testamentary trust to a trust created for the benefit of her grandchildren and known as the Joyce E. Pickrell Testamentary Trust.

Joyce Evans Pickrell died on October 7, 1987, and her will was admitted to probate on January 11, 1988. Her survivors include her son, her daughter, five grandchildren, and the two nieces named in her inter vivos trust. Her federal estate tax return shows the value of her taxable assets as $4,984,362.45. The total amount of federal and state death taxes paid at the time of this appeal was $2,097,667.90.

After the will was admitted to probate a dispute arose regarding the trustees’ interpretation of article IV, section 12 of the amended trust indenture. The trustees maintained section 12 authorized and directed them to pay to the estate a sum representing the trust’s proportionate share of the death taxes and administration expenses based on the ratio of trust assets to the total taxable estate. Thomas Pickrell and his wife Patricia disagreed with this interpretation and instead asserted that section 12 was inconsistent with the second article of the will which directs the executors to pay taxes and expenses out of the residuary and not to collect any part of these taxes and expenses from any beneficiaries. The Pickrells argued that the will controlled the question of apportionment of taxes and expenses.

On August 3, 1988, the trustees filed a petition for construction of the trust indenture. One week later the Pickrells filed a petition for construction of the will. The district court consolidated the petitions and found there was no inconsistency between the will and trust indenture concerning the payment of death taxes and administration expenses. The district court found the language of the trust amendment was clear and concise and contained the latest expression of the settlor s intent regarding apportionment of taxes and expenses. The court then directed the trustees to distribute to the executors an amount representing a proportionate part of the death taxes and administration expenses.

Additionally, the court ruled that, in exercising her power of appointment over her husband’s testamentary trust, Joyce Evans Pickrell appointed the assets of her husband’s trust directly to her testamentary trust. The district court further found that the second article of the will precluded the executors from seeking a contribution for any death taxes or administration expenses from Joyce Evans Pickrell’s testamentary trust until the residue of the estate was exhausted.

This appeal involves two written instruments: Joyce Evans Pickrell’s will and the amendment to her inter vivos trust indenture. The interpretation or construction of written instruments is a question of law that may be determined by an appellate court. Kennedy & Mitchell, Inc. v. Anadarko Prod. Co., 243 Kan. 130, 133, 754 P.2d 803 (1988).

The Pickrells contend a conflict exists between Joyce Evans Pickrell’s will, which directs death taxes and administration expenses to be paid out of the residuary estate, and the amendment to the trust indenture, which directs the trustees to pay the trust’s proportionate share of taxes and expenses. They assert that the directions of the will should be followed and that the Kansas rule placing the federal estate tax burden on the residuary estate must be given effect. The Pickrells thus maintain the amendment to the trust indenture is ineffective and the trustees are prohibited from contributing trust assets for payment of taxes and expenses.

When the language used in a will is challenged, the first duty of a trial or appellate court is to determine whether the will is ambiguous. In re Estate of Brecklein, 6 Kan. App. 2d 1001, 1007, 637 P.2d 444 (1981). Where a will is not ambiguous, extrinsic evidence of intent is inadmissible. In re Estate of Brecklein, 6 Kan. App. 2d at 1007. The basic principles of will construction are summarized in Russell v. Estate of Russell, 216 Kan. 730, 534 P.2d 261 (1975):

“In construing a will courts must (a) árrive at the intention of the testator from an examination of the whole instrument, if consistent with rules of law, giving . . every single provision thereof a practicable operative effect, (b) uphold it if possible, (c) avoid any interpretation resulting in intestacy when possible, (d) give supreme importance to the intention of the testator, and (e) when the language found in such instrument is clearly and unequivocally expressed determine the intent and purpose of the testator without resort to rules of judicial construction applicable to the interpretation of an instrument which is uncertain, indefinite and ambiguous in its terms.” Syl. ¶ 1.

When the testator’s intent is clearly and unequivocally expressed, the will must be enforced in accordance with its provisions. In re Estate of Wernet, 226 Kan. 97, Syl. ¶ 1, 596 P.2d 137 (1979). The court should not consider the rules of judicial construction to determine the testator’s intent if the language of the will is clear, definite, and unambiguous. 226 Kan. 97, Syl. ¶ 2. Further, although a will speaks at the date of death, the language of a will must be construed as of the date of its execution and in light of the then surrounding circumstances. 226 Kan. at 106.

The rules for construing a trust are similar to those governing will construction. The settlor’s intent is to be determined from the four corners of the trust instrument. See In re Estate of Sutcliffe, 199 Kan. 686, 692, 433 P.2d 389 (1967). If the language of the trust instrument is plain and unambiguous, the intent of the settlor must be ascertained from the language used and given effect. State Bank of Parsons v. First National Bank in Wichita, 210 Kan. 647, Syl. ¶ 2, 504 P.2d 156 (1972).

In the present case, we are convinced there is no uncertainty or ambiguity regarding the payment of estate and inheritance taxes and administration expenses in Joyce Evans Pickrell’s will. The second article of her will directs the executors to pay death taxes and expenses out of the residue of the estate. Additionally, it prohibits the executors from collecting such taxes or expenses from beneficiaries under the will. The language used in the second article clearly expresses the testator’s intent regarding the payment of death taxes and administration expenses.

In Kansas, absent an expressed intent to the contrary, the burden of the federal estate taxes falls upon the residuary estate. Dittmer v. Schmidt, 235 Kan. 697, 701, 683 P.2d 1252 (1984). In contrast, absent a direction to the contrary, Kansas inheritance taxes are to be paid from the assets of the estate so that each distributive share bears an equitable proportion of such taxes. K.S.A. 79-1564(d); Wendland v. Washburn University, 8 Kan. App. 2d 778, 779, 667 P.2d 915 (1983). These rules do not come into play in the instant case because of Joyce Evans Pickrell’s express directions regarding death taxes and expenses.

Furthermore, the language of the trust indenture and amendment are plain and unambiguous. The amendment to section 12 of article IV of the trust instrument directs the trustees to pay to the estate the trust’s proportionate share of estate and inheritance taxes and administration expenses.

Generally, inter vivos trusts, as part of a coordinated estate plan, may include a provision instructing the trustee to pay the trust’s ratable share of the death taxes and expenses. See Nothern and Wachter, The Ultimate Burden of the Federal Estate Tax in Kansas-A Dilemma for Executors, 17 Washburn L.J. 231, 244-49 (1978). Notably, K.S.A. 79-1564(d), which provides that each distributive share of estate assets will bear a proportionate share of the inheritance taxes, permits the decedent to avoid this statutory scheme by so directing in either a will or a trust agreement.

Here, read separately, both the will and the trust indenture, as amended, are unambiguous and, therefore, do not require this court to resort to judicial construction to determine the decedent’s intent. The will charges the executors to pay death taxes and expenses from the residuary estate and not to collect any of the taxes and expenses from any of the beneficiaries under the will. Meanwhile, the trust amendment directs the trustees to pay to the estate the trust’s proportionate share of the taxes. Although better drafting could have made these provisions appear more coordinated, they are essentially consistent with one another.

The language of the will does not prohibit the executors from accepting the trustees’ proffer of the trust’s proportionate share of taxes and expenses. Instead, except for the residuary estate, the executors are prohibited from charging any trust beneficiary for taxes and expenses. This prohibition does not render the estate unable to accept the funds paid by the trustees pursuant to the amended trust instrument. Following the testator’s intent as stated in both the will and trust instrument does not produce an inconsistency.

Moreover, even if there is a perceived inconsistency, the trust provision should be given effect because it is the later instrument and, thus, the most recent expression of the decedent’s intent. Under the Pickrells’ interpretation, the directions set forth in the trust amendment are ineffective and essentially meaningless. The problem with this position is that it requires the last clear statement of the decedent’s intent concerning taxes and expenses to be ignored. Such a result is not consistent with Joyce Evans Pickrell’s execution of a trust amendment five years after the execution of her will.

In summary, we believe the tax provisions of Joyce Evans Pickrell’s will and amended trust indenture unambiguously express her intent and are not inconsistent. Thus, the trustees, as directed by the amended trust instrument, may pay to the estate the trust’s proportionate share of estate and inheritance taxes and administration expenses.

In light of our determination above, we need not reach the remaining issues presented.

Affirmed.