This is an appeal from several orders of the probate court pertaining to certain disputed issues in probating the estate of the testator, William Herbert Hanna. The disagreements arose between the appellant, the testator’s widow and executrix, and appellees, the testator’s son, William Herbert Hanna, Jr., and a local bank as trustee, residuary beneficiaries. All matters were resolved by the probate court in favor of the appellees.
The testator, age 85, died March 24, 1975, leaving an adjusted gross income valued for federal estate tax purposes which was determined to be 51,774,003.22. His will was admitted to probate and his widow appointed executrix on April 4 of that year. His will left one-half of the assets of the estate to the appellant, to be selected by her (after deducting the amount of properties passing to her outside the will), as a marital deduction bequest, 540,000 to Hanna, Jr., several specific bequests of lesser amounts, and the remainder to the bank as trustee with the net income to be paid to appellant at least quarter-annually, according to her needs — the remaining net income to be distributed at least annually to the son. The trust had other provisions not pertinent here.
It appears that by February, 1977, the specific bequests had been paid as well as the debts of the estate including the federal and state estate taxes. During the next two years, various motions, accountings, objections thereto, interrogatories and responses were filed, and hearings conducted. Finally, when certain issues could not be resolved by agreement, they were submitted to the probate court. On these issues the court found that all of the income derived from the estate during the administration should be allocated to the residuary trust; that $750 per month, being paid by a court order to appellant from the estate, should be applied and allocated against her marital bequest; that appellant was entitled to $3,000 as compensation for her services as executrix of the estate; and that on the main issue, the marital bequest to her was a pecuniary and not a fractional bequest, that the clear intent of the testator was that his widow would select and receive estate assets in an amount which would equal one-half of the deceased’s adjusted gross estate as defined for federal estate tax purposes, that the value of the assets used to fund that pecuniary bequest be determined at their fair market value on the date or dates of their distribution. The court noted that the will provided the fair market value on the date of distribution be no less than the amount of the pecuniary bequest. The adjusted gross estate was $1,774,003-22 and, therefore, appellant was entitled to one-half ( $887,001.61), no more or less. She had received $393,037.37 independently of the marital bequest which, by the terms of the will, was to be charged to her one-half marital bequest. Thus, a balance of $493,964.24 was due her from the assets of the estate. Any assets selected and distributed to her which exceeded that amount were ordered returned to the estate.
The primary issue asserted for reversal is that the court erred in holding that the marital bequest should be funded with assets of the estate by using the fair market value of such assets as of the date or dates of distribution. The paramount rule in construing wills is that we determine the intent of the testator, from the four corners of the will, considering the whole will and in the light of the situation and circumstances surrounding the testator at the time of execution. McLane v. Chancey, Admr., 211 Ark. 280, 200 S.W. 2d 782 (1947). The third paragraph of the will here reads:
In the event I am survived by my wife, I give, devise and bequeath to Mary Sue S. Hanna assets of my estate, to be selected by the Executrix of this Will, in an amount which, when added to any other property which is passed or will pass to my wife independently of this bequest and which will qualify as a part of the marital deduction of my estate, will equal one-half of my adjusted gross estate as defined for federal estate tax purposes in the Federal Internal Revenue Code. Only assets that qualify for the marital deduction shall be available for selection by my Executrix and the fulfillment of this bequest. The values used in fulfilling this bequest shall be those values as finally determined for federal estate tax purposes, but the aggregate fair market value at the date or dates of distribution of the property received by my wife must be no less than the amount of this bequest as finally determined for federal estate tax purposes.
The appellant asserts this is not a true pecuniary bequest, but a “minimum worth” pecuniary formula provision and, thus, the clear intent of the testator was that, in fulfilling the marital bequest, the property distributed to satisfy the bequest should be valued as of the date of its valuation for federal estate tax purposes. Therefore, apel-lant should benefit from any appreciation of the assets, selected by her, up to the date of distribution. We disagree.
This is clearly a true pecuniary bequest. Here, the preresiduary marital bequest in the will provided for the funding of the marital bequest with assets “in an amount which ... will equal one-half of my adjusted gross estate as defined for federal estate tax purposes ...” (Italics supplied.) The words “an amount” are construed to indicate a true pecuniary bequest, or a bequest of a certain fixed amount unaffected by appreciation or depreciation of the assets and not a fractional bequest, although the bequest may be satisfied by assets in kind. In re Estate of Thompson, Deceased, 90 N.J. Super. 350, 217 A. 2d 627 (1966); In re Lewine’s Estate, 286 N.Y.S. 2d 566 (1968); In re Estate of Kantner, 143 A. 2d 243 (1958); and Fed. Est. & Gift Tax Rep. (CCH) par. 2081.09. Here, we note the appellant does not contend this is a fractional share bequest. In a true pecuniary bequest, unless otherwise provided, “the widow is not entitled to share in the appreciation of security values to the date of distribution and does not suffer by reason of any shrinkage thereof.” In re Estate of Thompson, Deceased, supra.
The clause in the will stipulating that the fair market value of those assets used to fund the bequest could be no less than the amount of the bequest as determined for federal estate tax purposes merely satisfied the requirement of the Internal Revenue Service, pursuant to Rev. Prac. 64-19. See Ark. Stat. Ann. § 62-2909.1 et seq. (Repl. 1971); Estate of Doyle J. Smith, par. 78, 175 P-H Memo TC; Polasky, Marital Deduction Formula Clauses in Estate Planning — Estate and Income Tax Considerations, 63 Mich. L. Rev. 809 (1965). It appears that the I.R.S. clearly warns that a marital bequest does not qualify as a marital deduction when the bequest is funded with estate properties which have a fair market value on the date or dates of distribution of less than the amount which was deducted for federal estate tax purposes. Thus, depreciated assets cannot be used to fund such a bequest to give the estate the full benefit of the marital deduction while the estate of the surviving spouse is not increased by the full amount. Here, the testator used language in his will which indicates a typical pecuniary type formula for the fixed amount of a gift in order to accomplish the exact maximum marital deduction — no more and no less.
It is apparent from a reading of the above quoted provision that the testator intended to take full advantage of the federal estate tax marital deduction of one-half to the surviving spouse, by providing that any assets passing to her independently of the bequest, i.e., by operation of law, be deducted from the amount of the assets so that the total amount not exceed one-half of his adjusted gross, estate. Here is evidenced a clear intent that the bequest not be overfunded and that federal estate taxes be kept to a minimum. To allow the appellant to receive the appreciation accruing to those assets she selected to fund the bequest would be to allow an amount in excess of the pecuniary bequest of one-half the estate. This would result in overfunding the bequest and increased tax liability. Williams, Overqualification of Marital Deduction Due to Joint Ownership and Insurance, 21 Ark. L Rev. 23 (1967-68). Furthermore, here the testator made an additional or backup provision for his widow as primary beneficiary in the trust by providing her with funds from the trust income which might become necessary to maintain her needs and standard of living. We find the probate judge correctly held that the bequest should not exceed one-half of the amount of the estate as valued for federal estate tax purposes and any excess due to appreciation of those assets (as of the date of distribution) selected by her should be returned to the trustee.
Next, it is urged that the court erred in finding the income earned by the estate during its administration should be allocated to the residuary beneficiaries. We find no error. This matter is covered by Ark. Stat. Ann. § 58-605 (b) (Repl. 1971), as the probate judge held. That statute provides in pertinent part:
(b) Unless the will otherwise provides, income from the assets of a decedent’s estate after the death of the testator and before distribution ... shall be ... distributed as follows:
(1) to specific legatees and devisees, the income from the property bequeathed or devised to them respectively... (2) to all other legatees and devisees, except legatees of pecuniary bequests not in trust, the balance of the income ... in proportion to their respective interests in the undistributed assets of the estate computed at times of distribution on the basis of inventory value. (Italics supplied.)
Here, the will provided for a pecuniary bequest to appellant, as previously discussed; no provision was made for the income to be distributed to the widow. Therefore, the language of the above statute controls.
Appellant also contends that the probate judge erred in determining that the appellant was entitled to only @3,000 as compensation for her services as executrix, rather than the statutory maximum, which appellant computes as being in excess of @49,000. Ark. Stat. Ann. § 62-2208 (Supp. 1981). That statute also provides:
(a) The personal representative shall be allowed such compensation for his services when and as earned, as the court shall deem just and reasonable ...
Here, the appellant has listed numerous pleadings, orders, and matters filed in the administration of the estate to justify her claim for services as executrix. This is a sizeable estate and no doubt much effort has been required in administering it. There was no testimony taken at the hearing as to the issue of appellant’s compensation. Appellant, 87 years of age, was unable to attend this hearing due to her health. It appears that the work was done largely by her brother, who was allowed @500 per month by the court, as her assistant, and her accountant and her attorney. In the circumstances, we find no abuse of discretion by the trial court as to the award. Torian et al v. Smith, 263 Ark. 304, 564 S.W. 2d 521 (1978).
The final point is that the judge erred in determining that the @750 per month paid appellant during the administration of the estate should be charged against her marital deduction bequest provided for in the will. Appellant relies on Ark. Stat. Ann. § 62-2016 (d) (Repl. 1971), which provides that on appeal from an order of distribution, all prior appealable orders to which written objections were filed within 60 days after rendered shall be reviewed, urging no written objection was filed within 60 days of the order. We do not find this statute to be controlling here. The petition seeking the monthly support payments acknowledges that the will makes no provision for a distribution to her from the income of the estate. Appellant had asked that $750 per month from the income of the estate be paid to her “to be charged against the bequest made to her in said will.” The ex parte order stated the requested payment should be distributed to appellant during the administration of the estate; however, such payments should ultimately be “charged against” her bequest. This is what the probate judge has ordered. Also, as the court found, there was no showing that the appellant needed the money to maintain her standard of living. To the contrary, she did not need it. It appears she has considerable personal wealth in her own right.'
Affirmed.
Purtle, J., dissents.