OPINION
KOEHLER, Justice.
In a contest involving the construction of the provisions of a testamentary trust relating to ownership of accrued but undis
tributed income on the date of the termination of the trust, the trial court granted partial summary judgment in favor of the trust income beneficiary. The parties representing the • remainder interest in the trust estate bring this appeal contending that the court erred in its construction of the will as a matter of law. We affirm.
The last will and codicil of Cynthia L. Monroe was, following her death on October 3,1976, admitted to probate by order of the district court of Shawnee County, Kansas, and admitted to ancillary probate in Ward County, Texas. The will created several trusts, including the one here in question which devised one-sixth of the residuary estate to the designated trustee, with all income from such trust for the use and benefit of the testatrix’ sister, Lenore M. Stratton, for her life, and upon her death, for the use and benefit of Lee M. Stratton, the testatrix’ nephew and Appellee herein, for his life, and upon his death, the remainder to be divided in equal shares between Cynthia Day Stratton, Joanna Lenore Stratton and Clifton Jairus Stratton, III, the testatrix’ great-nieces and great-nephew and Appellants herein. The will was amended by codicil which essentially provided that the income trust for the Appel-lee was to continue until his death or until January 1, 1990, whichever occurred first.
Lenore M. Stratton disclaimed her rights in the trust in 1976 shortly after the death of the testatrix and Appellee succeeded his mother as the sole income beneficiary of the trust. A dispute subsequently arose between the parties as to whether the Ap-pellee as income beneficiary or the Appellants as remaindermen were entitled to oil and gas royalty income which was earned or accrued before January 1, 1990 but was either paid or remained to be paid after January 1, 1990. Although Appellants and Appellee assert that the will, including the codicil, are unambiguous, they urge diametrically opposite interpretations of the will provisions relating to disposition of income which had accrued but was unpaid as of January 1, 1990. Specifically, Appellants insist that all accrued income not actually received before January 1, 1990 became or becomes part of the trust principal and must be turned over to them as the remain-dermen. They rely primarily on language in paragraph Fourth B which relates to disposition of accrued, undistributed income in the event that the Appellee died prior to January 1, 1990: “[A]nd upon the termination thereof by reason of the death of LEE M. STRATTON prior to January 1, 1990, any undistributed income theretofore accruing shall thereupon become a part of the principal of the trust provided in said paragraph B for [the three Appellants], or upon January 1, 1990, the income trusts hereunder shall in all things terminate and all of the Trust Estate subject thereto shall be distributed, delivered and paid over, absolutely and free of trust hereunder, unto [the three Appellants]....” Appellants also argue that the provision in paragraph Fifth A requiring the trustee to pay monthly to the beneficiary “all of the current net income actually received by the respective Trustees during the preceding month, ...” shows that income not actually received prior to January 1, 1990 was not to be paid to the income beneficiary.
Appellee, on the other hand, contends that the language of paragraph Fourth B, particularly when considered in context with other relevant trust provisions, requires a different treatment of the accrued, undistributed or unpaid income if the trust terminates on January 1, 1990, than would be the case if termination resulted from his death prior to that date.
Both parties agree that when construing an unambiguous will, the intention of the testator in the disposition of the estate is to be ascertained from the four corners of the instrument.
Floyd v. Floyd,
813 S.W.2d 758, 761 (Tex.App.—El Paso 1991, writ denied). That intention is to be determined from the words actually used, not from extrinsic evidence of what the testator may have intended.
Id.
The reviewing court should give the words used their common and ordinary meanings.
White v. Taylor,
155 Tex. 392, 286 S.W.2d 925 (1956). Effect should be given to every part of a will if the language used by the testator is reasonably susceptible to a harmonious construction.
Perfect Union Lodge No. 10, A.F. and A.M., of San Antonio v. Interfirst Bank of San Antonio, N.A.,
748 S.W.2d 218, 220 (Tex.1988).
With the foregoing principles of will construction in mind, an examination of the relevant provisions of the will and codicil and the language used by the testatrix brings us to the conclusion that she intended for the income beneficiary, if she or he survived until January 1, 1990, to be paid all income which had accrued prior to that date even though it was either not received by the trustee until after December 31, 1989 or though received had not been distributed before January 1. A close look at the language of codicil paragraph Fourth B on which Appellants rely in support of their position indicates that the testatrix intended to differentiate between the situation where the trust terminated by the death of either income beneficiary and the situation where the trust terminated by passage of time. If similar results were intended by the testatrix regardless of which of the two terminations occurred, she logically and undoubtedly would have used the same language for disposition of accrued, undistributed income for both contingencies, or more simply, would have said, “and upon termination thereof by the occurrence of either event, any undistributed income, etc.” Appellants’ contention does not harmonize and give effect to the two separate clauses of the sentence dealing with termination of the income trust for the benefit of Appellee.
Appellants’ argument that will paragraph Fifth A requiring the trustees to distribute monthly all of the current net income actually received by them during the preceding month “prohibits them from paying income which was not ‘actually received ... during the preceding month’ ” is not persuasive. In our view, this provision sets out when, not what, income is payable to the income beneficiary. This provision was undoubtedly intended to prevent the trustees from accumulating income. Obviously, the trustees could not distribute income until it was actually received nor is it likely that the trustees would be able to determine what the current net income would be for a particular month until the following month.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
KOEHLER, Justice.
In a contest involving the construction of the provisions of a testamentary trust relating to ownership of accrued but undis
tributed income on the date of the termination of the trust, the trial court granted partial summary judgment in favor of the trust income beneficiary. The parties representing the • remainder interest in the trust estate bring this appeal contending that the court erred in its construction of the will as a matter of law. We affirm.
The last will and codicil of Cynthia L. Monroe was, following her death on October 3,1976, admitted to probate by order of the district court of Shawnee County, Kansas, and admitted to ancillary probate in Ward County, Texas. The will created several trusts, including the one here in question which devised one-sixth of the residuary estate to the designated trustee, with all income from such trust for the use and benefit of the testatrix’ sister, Lenore M. Stratton, for her life, and upon her death, for the use and benefit of Lee M. Stratton, the testatrix’ nephew and Appellee herein, for his life, and upon his death, the remainder to be divided in equal shares between Cynthia Day Stratton, Joanna Lenore Stratton and Clifton Jairus Stratton, III, the testatrix’ great-nieces and great-nephew and Appellants herein. The will was amended by codicil which essentially provided that the income trust for the Appel-lee was to continue until his death or until January 1, 1990, whichever occurred first.
Lenore M. Stratton disclaimed her rights in the trust in 1976 shortly after the death of the testatrix and Appellee succeeded his mother as the sole income beneficiary of the trust. A dispute subsequently arose between the parties as to whether the Ap-pellee as income beneficiary or the Appellants as remaindermen were entitled to oil and gas royalty income which was earned or accrued before January 1, 1990 but was either paid or remained to be paid after January 1, 1990. Although Appellants and Appellee assert that the will, including the codicil, are unambiguous, they urge diametrically opposite interpretations of the will provisions relating to disposition of income which had accrued but was unpaid as of January 1, 1990. Specifically, Appellants insist that all accrued income not actually received before January 1, 1990 became or becomes part of the trust principal and must be turned over to them as the remain-dermen. They rely primarily on language in paragraph Fourth B which relates to disposition of accrued, undistributed income in the event that the Appellee died prior to January 1, 1990: “[A]nd upon the termination thereof by reason of the death of LEE M. STRATTON prior to January 1, 1990, any undistributed income theretofore accruing shall thereupon become a part of the principal of the trust provided in said paragraph B for [the three Appellants], or upon January 1, 1990, the income trusts hereunder shall in all things terminate and all of the Trust Estate subject thereto shall be distributed, delivered and paid over, absolutely and free of trust hereunder, unto [the three Appellants]....” Appellants also argue that the provision in paragraph Fifth A requiring the trustee to pay monthly to the beneficiary “all of the current net income actually received by the respective Trustees during the preceding month, ...” shows that income not actually received prior to January 1, 1990 was not to be paid to the income beneficiary.
Appellee, on the other hand, contends that the language of paragraph Fourth B, particularly when considered in context with other relevant trust provisions, requires a different treatment of the accrued, undistributed or unpaid income if the trust terminates on January 1, 1990, than would be the case if termination resulted from his death prior to that date.
Both parties agree that when construing an unambiguous will, the intention of the testator in the disposition of the estate is to be ascertained from the four corners of the instrument.
Floyd v. Floyd,
813 S.W.2d 758, 761 (Tex.App.—El Paso 1991, writ denied). That intention is to be determined from the words actually used, not from extrinsic evidence of what the testator may have intended.
Id.
The reviewing court should give the words used their common and ordinary meanings.
White v. Taylor,
155 Tex. 392, 286 S.W.2d 925 (1956). Effect should be given to every part of a will if the language used by the testator is reasonably susceptible to a harmonious construction.
Perfect Union Lodge No. 10, A.F. and A.M., of San Antonio v. Interfirst Bank of San Antonio, N.A.,
748 S.W.2d 218, 220 (Tex.1988).
With the foregoing principles of will construction in mind, an examination of the relevant provisions of the will and codicil and the language used by the testatrix brings us to the conclusion that she intended for the income beneficiary, if she or he survived until January 1, 1990, to be paid all income which had accrued prior to that date even though it was either not received by the trustee until after December 31, 1989 or though received had not been distributed before January 1. A close look at the language of codicil paragraph Fourth B on which Appellants rely in support of their position indicates that the testatrix intended to differentiate between the situation where the trust terminated by the death of either income beneficiary and the situation where the trust terminated by passage of time. If similar results were intended by the testatrix regardless of which of the two terminations occurred, she logically and undoubtedly would have used the same language for disposition of accrued, undistributed income for both contingencies, or more simply, would have said, “and upon termination thereof by the occurrence of either event, any undistributed income, etc.” Appellants’ contention does not harmonize and give effect to the two separate clauses of the sentence dealing with termination of the income trust for the benefit of Appellee.
Appellants’ argument that will paragraph Fifth A requiring the trustees to distribute monthly all of the current net income actually received by them during the preceding month “prohibits them from paying income which was not ‘actually received ... during the preceding month’ ” is not persuasive. In our view, this provision sets out when, not what, income is payable to the income beneficiary. This provision was undoubtedly intended to prevent the trustees from accumulating income. Obviously, the trustees could not distribute income until it was actually received nor is it likely that the trustees would be able to determine what the current net income would be for a particular month until the following month.
Appellants further contend that if provisions of codicil paragraph Fourth B are construed to mean that the income beneficiary is entitled to receive all income which accrued prior to January 1, 1990, this would have the effect of extending the trust and the powers of the trustee indefinitely contrary to the provisions of that paragraph which require the termination of the trust and distribution of the trust estate upon the happening of either the death of Appellee or January 1, 1990. Appellants agree that this provision does not mean that the trustees on January 1, 1990 lost all power, but that they would have whatever reasonable time was required to wind up the trust in an orderly fashion. This would necessarily include whatever time it might take to gather and transfer the assets of the trust estate to the remaindermen as well as to collect any income which had accrued prior to January 1, 1990 and distribute it to the income beneficiary. In either event, it necessitates extending the powers of the trustees until they have carried out the duties imposed upon them by the trust provisions.
Finally we consider Appellants’ contention that by a letter from the trial judge indicating his ruling, he “yielded to the temptation to ‘climb into the brain’ of the testatrix to ascertain the true meaning of the provisions in question[,]” and by so doing, he disregarded all of the will construction rules. Since the letter formed no part of the court’s judgment, the assumption of Appellants that the judge disregarded the rules in arriving at his judgment is unwarranted. His speculation on what the testatrix really intended comes at the end of a three page letter after he had, by his analysis of the relevant trust provisions, concluded that the income beneficiary (Ap-pellee) was entitled to summary judgment in his favor.
Appellants’ point of error is overruled. Judgment of the trial court is affirmed.