In re Estate of Berryman

The opinion of the court was delivered by This matter is before the court on an appeal from [226 Kan. 117] 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 (____) 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.