Estate of Merle Allen Whiting, Jr., Deceased, Vicki Ann Whiting, Executrix - Page 17

                                       - 17 -                                         
          if she did not survive him, he named his cousin.  Mrs. Whiting              
          selected decedent as her guardian; and if he did not survive her,           
          she named her son.                                                          
                    2.   Terms Relating to Disability Section Create                  
               We find that the terms of the disability section conflict              
          with the terms of the marital deduction trust.  The provision of            
          the disability section pertaining to the trustee’s specific power           
          to accumulate income conflicts with the terms contained in the              
          marital deduction trust pertaining to distributions of income.              
          The marital deduction trust provides that the trustee shall                 
          distribute at least annually the net income of the trust to or              
          for the benefit of the surviving spouse.  Section 15.A. states              
          that “the Trustee may accumulate the annual net income” to which            
          the beneficiary is entitled.  (Emphasis added.)  The first                  
          provision requires the trustee to distribute all of the income              
          from the marital deduction trust to or for the benefit of the               
          surviving spouse, while the second provision permits the trustee            
          to accumulate the surviving spouse’s income received from the               
          marital deduction trust.                                                    
               Where terms in a trust conflict, Arkansas law provides:  “In           
          construing a * * * [trust] a court should give force to each                
          provision thereof.  It is only if there is an irreconcilable                
          conflict between two clauses that one must give way to the                  
          other.”  In re Estate of Lindsey, 832 S.W.2d 808, 812 (Ark. 1992)           

Page:  Previous  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  Next

Last modified: May 25, 2011