Opinion · Colorado Court Opinions

EST. OF DEWSON v. JACOBS, 30 Colo. App. 431 (1972)

In the Matter of Est. of Katharine C. Dewson, Deceased; Malcolm C.Smith & Ilda R. Smith v. Donald H. Jacobs, as Ex’[r, x] of the Est. ofKatharine C. Dewson, Deceased; The Colo. Nat’l Bank of Denver, asPage 432Successor Tr. under the Last Will & Testament of Katharine C.Dewson, Deceased; Sybil Smith Downing, Mancourt Downing; Milton C.Garwood, as Guardian Ad Litem for Wynn Downing, Ivy Downing, Cha

Type: Opinion
Court: Colorado Court Opinions
Jurisdiction: Colorado
Date: 1972-02-23
Topic: general

EST. OF DEWSON v. JACOBS, 30 Colo. App. 431 (1972) (496 P.2d 319) In the Matter of the Estate of Katharine C. Dewson, Deceased; Malcolm C.Smith and Ilda R.

Citator

UpLaw has not yet analyzed EST. OF DEWSON v. JACOBS, 30 Colo. App. 431 (1972). The absence of a flag is not a finding that it is good law.

EST. OF DEWSON v. JACOBS,30 Colo. App. 431(1972)

(496 P.2d 319)

In the Matter of the Estate of Katharine C. Dewson, Deceased; Malcolm C.

Smith and Ilda R. Smith v. Donald H. Jacobs, as Executor of the Estate of

Katharine C. Dewson, Deceased; The Colorado National Bank of Denver, as

Page 432

Successor Trustee under the Last Will and Testament of Katharine C.

Dewson, Deceased; Sybil Smith Downing, Mancourt Downing; Milton C.

Garwood, as Guardian Ad Litem for Wynn Downing, Ivy Downing, Charles

Downing and Julie Downing, Minor Children of Sybil Smith Downing and

Mancourt Downing; and Herbert J. Newcomb, as Guardian Ad Litem for

Scott Crawford Smith and Daniel Edwin Smith, Minor Children of Malcolm

C. Smith and Ilda R. Smith

No. 70-574

Colorado Court of Appeals.

Decided February 23, 1972. Rehearing denied March 14, 1972. Certiorari

granted May 15, 1972.

Action for construction of will provision. On basis that provision unambiguous, trial court refused to permit parties to offer evidence as to testatrix's intent. Testatrix's son appealed.Reversed

1.WILLS—Construction — Equal Trusts — Exception Provision — Ambiguous —Extrinsic Evidence — Admissible. Where will provided that residuary estate was to be divided into two equal trust funds for benefit of testatrix's children, "except that the trust fund for my son shall be increased by the sum of $49,000 by reason of gifts heretofore made to my said daughter in like amount," the will provision is ambiguous as to whether the $49,000 is to be deducted prior to dividing the residuary estate or is to be deducted from the daughter's trust after the division and then added to the son's; thus, extrinsic evidence should be permitted to establish the applicability of the words to the circumstances at the time of execution of the will.

Appeal from the Probate Court of the City and County of Denver, Honorable David Brofman, Judge.

Harry A. King, M. B. Holt, Jr., for appellants.Page 433

Martin, Knapple Johnson, James G. Martin, Helen Garfield, for appellees Sybil Smith Downing and Mancourt Downing.

Milton C. Garwood, guardian ad litem for Wynn Downing, Ivy Downing, Charles Downing and Julie Downing.

Herbert J. Newcomb, guardian ad litem for Scott Crawford Smith and Daniel Edwin Smith.

Division II.

Opinion by JUDGE SMITH.

This is an action brought by the Executor of the Estate of Katharine C. Dewson, deceased, for construction of Article Seven of the Last Will and Testament of the decedent. This article of the will provides that the residuary legatees shall be the testatrix's daughter, Sybil Smith Downing, appellee, and the testatrix's son Malcolm C. Smith, appellant. Article Seven gives the residuary estate to a trustee, Section A of article Seven instructs the trustee as follows:

"A. My trustee shall divide my [residuary] property into two trust funds for the benefit of my children hereinafter named; said trust funds to be equal in amount, except that the trust fund for my son shall be increased by the sum of $49,000 by reason of gifts heretofore made to my said daughter in like amount."

The ambiguity of Article Seven is of a dual nature. Initially, it is not clear whether the $49,000 is to be deducted from the residue prior toPage 434creation of the trusts or, after creation of equal trusts it is to be deducted from one and applied to the other. Secondly, the problem is compounded by the words "in like amount," which may refer either to "gifts heretofore made," indicating such gifts might be more than $49,000, or to, "the sum of $49,000," indicating that the sum was $49,000.

At a pretrial conference the trial court found that the paragraph was unambiguous and refused to permit the parties to offer evidence. The court, by memo opinion, held that the intent of the testatrix would be achieved by initially allocating $49,000 to the trust fund established for Malcolm C. Smith, and subsequently dividing the balance of the residue equally between the trust funds of Malcolm Smith and Sybil Downing.

Malcolm Smith contends that he should have a gift equal to the gifts previously made to the daughter. This would carry out the testatrix's intent as he asserts it to be, namely, the residuary estate should be first divided into two equal funds and that then $49,000 should be shifted from Sybil Downing's fund to his.

The difference between the two constructions is illustrated as follows:

Daughter's and Probate Court's Construction Son's Construction Residuary Estate $298,000 Residuary Estate $298,000 Deduct — 49,000 -------- After Division: After Division: $249,000 Daughter $149,000 Daughter $124,500 — 49,000 ======== -------- $100,000 ======== Son $149,000 Son $124,500 + 49,000 + 49,000 -------- -------- $198,000 $173,500 ======== ========

Either of the interpretations is possible under the wording of the above provision.Page 435

A provision of a will, in order to be unambiguous, must not only be clear from the plain meaning of the words, but also in the application of those words to the property and circumstances to which they refer. InChristopher v. Cole,118 Colo. 471,196 P.2d 988, it is stated, "Where the will is unambiguous in meaningand in its application to specific property, evidence is not admissible to show intent contrary to that apparent from the plain meaning and application of its words. Where, however, the words of the will defined according to ordinary usage are uncertainin theirapplicationto specific property of the testator, or where as so defined they cannot apply to any of his property at all, and the bequest so construed is without sense or meaning, then and in such case extrinsic evidence is admissible as to the situation of the testator and the circumstances surrounding him when the will was made. It is presumed that the testator intended such bequest to make sense and meaning, and the task of the court is to determine the meaning intended by the testator, and sustain it if legally possible. Extrinsic evidence is received in order that the court may be placed as nearly as possible in the position of the testator to the end that thereby the intended meaning of the words of the will may be found." (Emphasis supplied.)[1]Thus in the instant case, in order to determine whether the testatrix intended, in effect, to make a gift of $49,000 to Malcolm Smith, or intended to make a gift of "like amount" to that given to her daughter, which may or may not be the alleged $98,000, introduction of extrinsic evidence should be permitted to establish the applicability of the words to the circumstances as they existed at the time of the execution of the will.Page 436

The order is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

JUDGE COYTE and JUDGE PIERCE concur.