[405]*405The opinion of the court was delivered by
Hatcher, C.:
This was an action to construe a will.
Ina L. West, the testatrix, died on February 5, 1965, leaving a will dated December 8, 1955, which was duly admitted to probate, and the Fourth National Bank and Trust Company of Wichita, Kansas, was appointed executor. The husband of the testatrix had died on June 30, 1955, leaving to testatrix the portion of the assets now included in her estate. The testatrix left no spouse or children surviving.
The will, insofar as material to this controversy, reads:
“FrasT: I direct my Executor to pay my just debts and funeral expenses.
“Second: I direct that all Federal Estate Taxes imposed upon or in relation to any property required to be included in my gross estate for Federal Estate Tax purposes and all inheritance and succession taxes payable on or resulting from or by reason of my death, whether or not attributed to properties subject to probate administration, shall be paid out of the residue of my probate estate. My Executor shall not be reimbursed for, nor collect, any part of such taxes from any person, legatee, devisee or beneficiary under this Will, nor shall there be any charge or recovery therefor upon the basis of proration, apportionment, contribution, distribution, or otherwise, against assets not included in my probate estate, or against persons not deriving benefits under this Will.
“Thibd: I give, devise and bequeath all of my property, of whatever kind of character and wheresoever situated, the following percentage interests therein, to-wit:
[There followed ten separate bequests to specified individuals bequeathing a “% interest in my estate.” The percentage interests ranged from 5% to 20% and amounted to 82% of the estate. Some of these bequests were to lapse and would have then fallen into the residuary clause.]
“Fourth: All of the rest, residue and remainder of my estate, of every nature and kind and wheresoever situated, I give, devise and bequeath to the Wesley Hospital and Nurse Training School, now a corporation, of Wichita, Kansas.”
In due time it became apparent that there was a dispute as to the bequests responsible for the payment of the estate and inheritance taxes, and the executor filed a petition with the probate court for the construction of the will.
Highly summarized, the executor’s petition alleged that a distribution of the estate had not been made because it was first necessary to have a determination of the estate and inheritance [406]*406taxes due and a determination of the bequests subject to payment of such taxes.
The petition for the construction of the will was transferred to the district court for hearing and determination.
The case was presented to the district court on a stipulation which stated the general facts and the positions taken by the federal and state taxing authorities. There was nothing submitted which in any way assisted in arriving at the intention of the testatrix. The trial court made findings of fact in harmony with what has been stated above and concluded as a matter of law:
“First: That the bequests under Paragraph Third in said decedent’s Will constitute specific bequests.
“Second: That under decedent’s Will the bequest to Wesley Medical Center under Paragraph Fourth in decedent’s Will should be applied, paid and treated as consumed, to the extent as required to pay all Federal Estate Taxes and all Inheritance and Succession Taxes payable on and resulting from or by reason of decedent’s death chargeable to any person or decedent’s estate.”
Paragraph Third provided for the proportionate payment of taxes not covered by the residuary clause.
The Wesley Medical Center, the beneficiary under the residuary clause, Paragraph Fourth of the will, has appealed.
Roth parties devote considerable space in their briefs to a discussion of the federal estate tax laws and the state inheritance tax laws. We are not concerned here with charitable deductions, the calculation of such taxes or the general effect of the taxes on the bequests under the will.
The law of this state is applicable in the determination of which legacies shall bear the burden of federal estate taxes. (Riggs v. Del Drago, 317 U. S. 95, 87 L. Ed. 106, 63 S. Ct. 109.)
The basic issue presented on this appeal is whether the trial court erred in finding and determining that the charitable bequest of all “the rest, residue and remainder” of decedent’s estate under Paragraph Fourth of the will should bear all of the estate and inheritance taxes due on the estate, or whether such bequest should bear only a proportionate part of those taxes with the remaining portion being chargeable proportionately against the bequests made in Paragraph Third of the will to certain named and designated beneficiaries.
In considering the question we should give attention to the nature of the taxes to be paid out of the assets of the estate. The federal law deals with an estate tax while the state law deals with an inheritance tax. An estate tax such as the federal law imposes is [407]*407levied upon the body of the estate before distribution. The right of the distributee to receive the property is not involved. On the other hand, an inheritance tax such as we have in this state is a succession tax — a tax upon the right of the distributee to receive the property. The two rights are distinct and separate. (Russell v. Cogswell, 151 Kan. 14, 98 P. 2d 179.)
Neither the federal government nor this state has enacted any laws directing where the burden for federal estate taxes shall fall. It has therefore been determined that in the absence of anything in the will to the contrary the burden of the federal estate tax falls on the residuary. (Central Trust Co. v. Burrow, 144 Kan. 79, 58 P. 2d 469.) This rule applies in favor of specific bequests but a different rule applies to general bequests as will be discussed later.
Insofar as the inheritance tax under the state law is concerned, it being upon the right of the distributee to take, it is apportioned among the legatees if there is no direction in the will.
Although what has been said tends to clarify or eliminate some of the contentions of the parties, it is not of much aid in determining where under the language of the will the testator intended to place the burden of the taxes under discussion.
Both parties inform us that the cardinal rule for the construction of wills, to which all other rules are subordinate, is that the intention of the testator, as garnered from all parts of the will or from the will in its entirety, is to be given effect and that doubtful or inaccurate expressions shall not override the obvious intention of the testator. (Meyer, Executor v. Benelli, 197 Kan. 98, 415 P. 2d 415; Hitchcock v. Skelly Oil Co., 197 Kan. 1, 414 P. 2d 67; Giese v. Smith, 195 Kan. 607, 408 P. 2d 687.) Or, as was said in Smyth v. Thomas, 198 Kan. 250, 255, 424 P.
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[405]*405The opinion of the court was delivered by
Hatcher, C.:
This was an action to construe a will.
Ina L. West, the testatrix, died on February 5, 1965, leaving a will dated December 8, 1955, which was duly admitted to probate, and the Fourth National Bank and Trust Company of Wichita, Kansas, was appointed executor. The husband of the testatrix had died on June 30, 1955, leaving to testatrix the portion of the assets now included in her estate. The testatrix left no spouse or children surviving.
The will, insofar as material to this controversy, reads:
“FrasT: I direct my Executor to pay my just debts and funeral expenses.
“Second: I direct that all Federal Estate Taxes imposed upon or in relation to any property required to be included in my gross estate for Federal Estate Tax purposes and all inheritance and succession taxes payable on or resulting from or by reason of my death, whether or not attributed to properties subject to probate administration, shall be paid out of the residue of my probate estate. My Executor shall not be reimbursed for, nor collect, any part of such taxes from any person, legatee, devisee or beneficiary under this Will, nor shall there be any charge or recovery therefor upon the basis of proration, apportionment, contribution, distribution, or otherwise, against assets not included in my probate estate, or against persons not deriving benefits under this Will.
“Thibd: I give, devise and bequeath all of my property, of whatever kind of character and wheresoever situated, the following percentage interests therein, to-wit:
[There followed ten separate bequests to specified individuals bequeathing a “% interest in my estate.” The percentage interests ranged from 5% to 20% and amounted to 82% of the estate. Some of these bequests were to lapse and would have then fallen into the residuary clause.]
“Fourth: All of the rest, residue and remainder of my estate, of every nature and kind and wheresoever situated, I give, devise and bequeath to the Wesley Hospital and Nurse Training School, now a corporation, of Wichita, Kansas.”
In due time it became apparent that there was a dispute as to the bequests responsible for the payment of the estate and inheritance taxes, and the executor filed a petition with the probate court for the construction of the will.
Highly summarized, the executor’s petition alleged that a distribution of the estate had not been made because it was first necessary to have a determination of the estate and inheritance [406]*406taxes due and a determination of the bequests subject to payment of such taxes.
The petition for the construction of the will was transferred to the district court for hearing and determination.
The case was presented to the district court on a stipulation which stated the general facts and the positions taken by the federal and state taxing authorities. There was nothing submitted which in any way assisted in arriving at the intention of the testatrix. The trial court made findings of fact in harmony with what has been stated above and concluded as a matter of law:
“First: That the bequests under Paragraph Third in said decedent’s Will constitute specific bequests.
“Second: That under decedent’s Will the bequest to Wesley Medical Center under Paragraph Fourth in decedent’s Will should be applied, paid and treated as consumed, to the extent as required to pay all Federal Estate Taxes and all Inheritance and Succession Taxes payable on and resulting from or by reason of decedent’s death chargeable to any person or decedent’s estate.”
Paragraph Third provided for the proportionate payment of taxes not covered by the residuary clause.
The Wesley Medical Center, the beneficiary under the residuary clause, Paragraph Fourth of the will, has appealed.
Roth parties devote considerable space in their briefs to a discussion of the federal estate tax laws and the state inheritance tax laws. We are not concerned here with charitable deductions, the calculation of such taxes or the general effect of the taxes on the bequests under the will.
The law of this state is applicable in the determination of which legacies shall bear the burden of federal estate taxes. (Riggs v. Del Drago, 317 U. S. 95, 87 L. Ed. 106, 63 S. Ct. 109.)
The basic issue presented on this appeal is whether the trial court erred in finding and determining that the charitable bequest of all “the rest, residue and remainder” of decedent’s estate under Paragraph Fourth of the will should bear all of the estate and inheritance taxes due on the estate, or whether such bequest should bear only a proportionate part of those taxes with the remaining portion being chargeable proportionately against the bequests made in Paragraph Third of the will to certain named and designated beneficiaries.
In considering the question we should give attention to the nature of the taxes to be paid out of the assets of the estate. The federal law deals with an estate tax while the state law deals with an inheritance tax. An estate tax such as the federal law imposes is [407]*407levied upon the body of the estate before distribution. The right of the distributee to receive the property is not involved. On the other hand, an inheritance tax such as we have in this state is a succession tax — a tax upon the right of the distributee to receive the property. The two rights are distinct and separate. (Russell v. Cogswell, 151 Kan. 14, 98 P. 2d 179.)
Neither the federal government nor this state has enacted any laws directing where the burden for federal estate taxes shall fall. It has therefore been determined that in the absence of anything in the will to the contrary the burden of the federal estate tax falls on the residuary. (Central Trust Co. v. Burrow, 144 Kan. 79, 58 P. 2d 469.) This rule applies in favor of specific bequests but a different rule applies to general bequests as will be discussed later.
Insofar as the inheritance tax under the state law is concerned, it being upon the right of the distributee to take, it is apportioned among the legatees if there is no direction in the will.
Although what has been said tends to clarify or eliminate some of the contentions of the parties, it is not of much aid in determining where under the language of the will the testator intended to place the burden of the taxes under discussion.
Both parties inform us that the cardinal rule for the construction of wills, to which all other rules are subordinate, is that the intention of the testator, as garnered from all parts of the will or from the will in its entirety, is to be given effect and that doubtful or inaccurate expressions shall not override the obvious intention of the testator. (Meyer, Executor v. Benelli, 197 Kan. 98, 415 P. 2d 415; Hitchcock v. Skelly Oil Co., 197 Kan. 1, 414 P. 2d 67; Giese v. Smith, 195 Kan. 607, 408 P. 2d 687.) Or, as was said in Smyth v. Thomas, 198 Kan. 250, 255, 424 P. 2d 498, the court in construing a will should place itself as nearly as possible in the situation of the testator when he made the will, and from a consideration of that situation and from the language used in every part of the will, determine as best it can the purposes of the testator and the intentions lie endeavored to convey by the language used.
Giving detailed consideration to the provisions of the will, we :find in Paragraph First the executor is directed to pay all just debts and funeral expenses.
Paragraph Second of the will is clearly for the purpose of protecting the donee of any gift in contemplation of death from per[408]*408sonal liability because of estate, inheritance and succession taxes accruing at the donor’s death.
Referring back rather than again repeating the rather lengthy paragraph, it will be noted that the executrix directs that estate, inheritance and succession taxes are to “be paid out of the residue of my probate estate” and this was to be done “whether or not attributed to properties subject to probate administration.” The last clause in Paragraph Second again protects only assets conveyed before death and not included in the probate estate.
Considerable stress is placed on the language stating that such taxes “shall be paid out of the residue of my probate estate.” The difficulty we have here is in determining whether the testatrix was referring to the remainder or residue of her probate estate after the payment of debts and funeral expenses mentioned in Paragraph First or to the residue after payment of the percentage legacies.
Stress is also placed on the phrase in Paragraph Second of the will: “My Executor shall not be reimbursed for, nor collect, any part of such taxes from any person, legatee, devisee or beneficiary under this Will, . . .” It is contended that this shows an intent that no burden be placed on the percentage bequests in Paragraph Third because of the taxes mentioned. We do not so understand the intention. The percentage bequests amounted to 82% of the estate, leaving only 18% for the residuary clause. The testatrix must have known that this was not sufficient to pay the taxes under discussion and if the 82% was to be a percentage of the gross it would have to bear part of the taxes because there would not be sufficient funds in the residuary clause unless there were lapses in the percentage bequests which did not occur.
It is difficult for us to believe that the gift to the Wesley Hospital and Nurse Training School was an intentional worthless gesture on the part of the testatrix.
We find the best guide to the intention of the testatrix lies in Paragraph Third of the will. We quote:
“I give, devise and bequeath of my property, of whatever kind or character and wheresoever situated, the following percentage interests therein to-wit:
Then followed ten separate bequests of “% interest in my estate.” The testatrix does not say gross estate which would have been so easy had that been the intention.
[409]*409We believe at this point the trial court made an erroneous conclusion and improperly construed the will.
The trial court concluded — “That the bequests under Paragraph Third in said decedent’s Will constitute specific bequests.”
A bequest of a percentage of an estate is perhaps the best example of a general bequest.
The nature of a bequest or legacy was defined in Taylor v. Hull, 121 Kan. 102, 104, 245 Pac. 1026, as follows:
“A legacy is said to be general when it does not direct the delivery of a particular thing, but which may be paid or satisfied out of the general assets; it is demonstrative when the bequest is of a certain sum of money, with directions that it shall be paid out of particular funds; and it is specific when it is a bequest of some definite thing. In 40 Cyc. 1869 it is said:
“ ‘A specific legacy is a bequest of some definite, specific thing, capable of being designated and identified; one which separates and distinguishes the property bequeathed from the other property of the testator so that it can be identified, and delivered to the legatee as a particular thing or fund bequeathed. Such a legacy can be satisfied only by a delivery to the legatee of the particular thing bequeathed to him, and if that thing is not in existence when the bequest would otherwise become operative the legacy has no effect.’ ”
We must conclude that the percentage bequests and legacies made in Paragraph Third of the will are general bequests.
By creating percentage or general legacies we think that the testatrix considered all of her estate not disposed of in Paragraph First to be the “residue of her probate estate” as that term was used in Paragraph Second of the will.
No previous case in this state has been found controlling the precise issue here presented but the conclusion and result we reach are in accord with cases from other jurisdictions which have expressly considered the matter. The leading case, and the one on which the latter decisions appear to rely, is Wells v. Menn, 158 Fla. 228, 28 So. 2d 881, 169 A. L. R. 892. It is there stated:
“We approve the better rule which provides that when a testator devises ten per cent of his estate, or any fractional part thereof, to a named beneficiary it has reference to ten per cent of the net or distributable part of the estate. Henderson v. Usher, 125 Fla. 709, 170 So. 846; Estate of Hinckley, 58 Cal. 457; Zimmer v. Gudmudsen, 142 Nebr. 260, 5 N. W. (2nd) 707; In re: Kirby Estate, 199 Cal. 135, 248 Pac. 517; Stark v. McEwen, 15 Ohio App. 188; Blakeslee v. Pardee, 76 Conn. 263, 56 Atl. 503; Smith v. Terry, 43 N. J. (Equity) 659, 12 Atl. 204; Barnett’s Appeal. 104 Pa. State 342; Briggs v. Hosford, 22 Mass. (Pickering) 288.” (p. 234.)
Cases following the above rule are presented in the annotation at [410]*410169 A. L. R. 904. Our research has disclosed no cases directly to the contrary.
We believe the rule is sound where as here there are no specific bequests to be protected and the gross estate amounts to $594,395.
We are also influenced by the fact that any other construction of the will would completely destroy the gift to the Wesley Medical Center. We prefer the rule that where one construction of ambiguous language in a will casts the burden of taxation in such a way as to extinguish certain gifts, whereas another construction gives effect to all dispositive provisions of the will, the latter is to be preferred if no specific gifts are affected.
We are forced to conclude that when the testatrix used the words “residue of my probate estate” in Paragraph Second of her will she was referring to the remainder of her estate after the payment of the charges in Paragraph First, and that she intended her percentage legacies to be a percentage of the net after payment of estate and inheritance taxes.
The judgment is reversed with instruction to the trial court to charge the legacies in Paragraph Third of the will with their proportionate part of the estate and inheritance taxes.
APPROVED BY THE COURT.