Miller v. First National Bank & Trust Co. , 637 P.2d 75 ( 1981 )

HODGES, Justice.

By statute,¹ “If, after making a will the testator is divorced,” all provisions in favor of the testator’s former spouse are revoked. The question then arises, does this statute also apply to those provisions in favor of the former spouse in a trust instrument which was executed by the testator at the same time? Under the facts of this case, we answer affirmatively.

On October 15, 1971, William J. Miller, Jr., executed two instruments, one entitled “Last Will and Testament,” and the other entitled “Life Insurance Trust.” These instruments were prepared simultaneously as part of his estate plan. Dr. Miller was married to Frances L. Miller, appellee, when he made and executed these instruments. This marriage ended in divorce January 27, 1976, eight months before his death on September 11, 1976. William J. Miller, Jr. had been married three times. His second marriage, to Betty Lou Miller, was terminated by divorce on March 9, 1971. Six months later he married Frances. Dr. Miller was survived by a daughter, April Teresa Miller Mann, and a minor son, William Steffen Miller, appellants. Betty Lou Miller, mother of William, is co-appellant.

The Last Will and Testament was admitted to probate on October 1, 1976. The First National Bank & Trust Company, ap-pellee, was appointed executor. Article III of the will devised the residue of Dr. Miller’s estate² to First National Bank in trust to become a part of the corpus of the Life Insurance Trust.³ The bank, as executor, brought an action under the Declaratory Judgment Act, 12 O.S.Supp.1979 § 1651, in the District Court of Tulsa County for the purpose of determining its rights, duties, obligations and powers under the terms of the two instruments.

The District Court found that: pursuant to 84 O.S.1971 § 114, any bequests in the instrument designated “Last Will and Testament” by the decedent to Frances L. Miller were invalidated; the Last Will and Testament and the Life Insurance Trust are separate and distinct instruments; and 84 O.S. 1971 § 114 does not impair the provision in the trust agreement as to Frances L. Miller.

Appellants, Betty Lou Miller, as guardian, and April Teresa Miller Mann and William Steffen Miller, as heirs-at-law of the deceased, have appealed to this Court seeking a reversal of the district court’s ruling.

I

Appellants contend that William J. Miller, Jr.’s will incorporated the Life Insurance Trust and that provisions in the trust in favor of Frances L. Miller, divorced spouse of testator, were revoked by 84 O.S. 1971 § 114. The appellants assert that the legislative intent in enacting this particular statute was to provide that the divorced person who had overlooked changing his will would not suffer the consequences of his oversight; and that it was not Dr. Miller’s intention that the bulk of his estate should go to a divorced spouse who was not the mother of his children.

This is a case of first impression. The issue presented in this case is whether the trust was incorporated by reference into the will, thereby invalidating those provisions for the decedent’s divorced spouse pursuant to 84 O.S.1971 § 114. While the language in § 114 refers to “Will” without specifically defining it, this Court has stated that an instrument may be too defective to be entitled to probate but if it is testamentary in character it is a will.⁴ It was further defined as “the instrument by which [a man] expresses his intention as to the disposition of his property at his death.⁵ A will is a declaration of what a person desires to be done after death. It is revocable during one’s lifetime, inoperative until death, and applicable to the situation that exists at the time of death.⁶

The primary purpose in construction of wills is to ascertain and give effect to the intention of the testator.⁷ Appellants contend that the trust agreement was incorporated by reference into the will and, therefore, is operative as a part thereof. To incorporate an extraneous instrument into a will by reference, the paper must be in existence when the will is executed and must be referred to in such a way as to reasonably identify the document. The reference must show testator’s intention to incorporate the instrument into his will, “or at least his intention that the instrument should operate with his will in disposing of property left by him at his death.”⁸ The doctrine of incorporation by reference is recognized in Oklahoma,⁹ and by a majority of other jurisdictions.¹⁰ Even in jurisdictions which do not recognize incorporation by reference, it has been held that where there was clear reference to an existing trust agreement, the effect of incorporation may be given and the rule against the doctrine will not be carried to a narrowly logical extreme.¹¹

Decedent’s will clearly identifies the trust. The trust was in existence when the will was executed. The reference exhibits decedent’s intention that the trust operate with his will to dispose of his property. He signed the will and the trust contemporaneously, indicating one instrument and a scheme of testamentary disposition. Article II of the will gave Frances only those things to which she would have been statutorily entitled. The remainder of the will is directed to the trust. The will without the trust has no meaning or value to the decedent’s estate plan.

It was Frances Miller’s status as wife of the testator which was the main inducement for making testamentary provisions for her. They were subsequently divorced and a property settlement was executed between the parties. When testator died eight months later without having revoked any provisions in the trust or the will relating to his former spouse, those provisions were statutorily invalidated, giving effect to the purpose and intent of § 114.

REVERSED.

IRWIN, C. J., BARNES, V. C. J., and DOOLIN, and OP ALA, JJ., concur. LAVENDER, SIMMS and HARGRAVE, JJ., dissent.

1 . Title 84 O.S.1971 § 114 was amended in 1975 to provide:

“If, after making a will, the testator is divorced, all provisions in such will in favor of the testator’s spouse so divorced are thereby revoked. Annulment of the testator’s marriage shall have the same effect as a divorce. Provided, however, this section shall not apply if the decree of divorce or of annulment is vacated or the testator remarries his former spouse.”

2 . Dr. Miller’s “Last Will and Testament” was comprised of five Articles. Articles I and V directed the executor to administer the estate, pay debts, funeral expenses and taxes. Article II bequeathed to Frances L. Miller the homestead and all personal effects. Article III stated:

“I have heretofore created an inter vivos trust under and by virtue of a certain trust agreement under date of the 15th day of October, 1971, between myself, as Trustor, and First National Bank & Trust Company ... as Trustee. I hereby give, devise and bequeath the rest, residue and remainder of my estate, real, personal, or mixed, of whatsoever kind and character, and wherever situated, unto First National Bank ... as Trustee of such trust, and said residue shall become a part of the corpus thereof and shall be held, administered and disposed of pursuant to the terms of said trust agreement.”

Article IV named contingent legatees should the trust beneficiaries predecease Dr. Miller.

3 .The trust was to be funded by the proceeds from Dr. Miller’s life insurance policies. The policies were made payable to First National as beneficiary. First National, as trustee, was directed to pay $50,000.00 to Frances L. Miller if such amount was left after the payment of debts and expenses. Jerry Wilson, son of Frances L. Miller, April Teresa Miller Mann and William Steffen Miller were to each receive $25,000.00 if such an amount existed after the payment to Frances L. Miller was satisfied. Then the residue, if any was remaining of the trust, was to be distributed to Frances L. Miller at $750.00 a month for life, or as the trustee so deemed as necessary for her welfare and comfort.

4 . Johnson v. Johnson, 279 P.2d 928, 930 (Okl.1954).

5 . Loveren v. Eaton, 80 N.H. 62, 113 A. 206 (1921).

6 . T. Atkinson, “The Law of Wills,” p. 1 (2d ed. 1953).

7 . Matter of Estate of Anderson, 571 P.2d 880 (Okl.1977); McAllister v. Long, 206 Okl. 623, 246 P.2d 352 (1952).

8 . Bottrell v. Spengler, 343 Ill. 476, 175 N.E. 781 (1931).

9 . In re Fullerton’s Estate, 375 P.2d 933 (Okl.1962).

10 . Note 6, supra, p. 386.

11 . Matter of Rausch, 258 N.Y. 327, 179 N.E. 755 (1932); Matter of Fowles, 222 N.Y. 222, 118 N.E. 611 (1918).