dissenting: The court in applying technical rules, pronounced and followed by courts throughout the history of Kansas law to give effect to the expressed intention of the testator in a will, reaches a conclusion absolutely inconsistent with the expressed and overriding intention of the testatrix in her will in this case.
Paragraphs Fourth, Fifth, Sixth and Seventh of the will are devoted exclusively to the expressed intention of the testatrix, Laura M. Graves, to equalize the distribution of her estate among her three children.
When Laura M. Graves died testate on the 9th day of November, 1965, she left surviving as her sole and only heirs at law her three children: Mary Faye Holland, a daughter (appellee); Gena M. Hildinger, a daughter (appellee); and Harlan L. Graves, a son (appellant). They are also the devisees and legatees under her will. She owned a section of land and a residence in Greensburg, all in Kiowa County. She also owned personal property which was inventoried and appraised at $54,324.31.
Included in the personal property was a note of Clay M. Hildinger, the husband of Gena M. Hildinger, in the amount of $36,600.
It is to be noted Harlan L. Graves was appointed executor under the will of Laura M. Graves. As executor he did not request the appointment of commissioners pursuant to paragraph Fourth of the decedent’s will, which required the initiative of Gena, through her counsel, to accomplish the fulfillment of this condition.
Harlan contended the appraisal of the two half sections of land by the court-appointed appraisers at $44,800 each was sufficient to fulfill the requirements of the will for distribution and equalization purposes, but at Gena’s insistence the commissioners appointed pursuant to paragraph Fourth, who were directed to appraise only the two half sections of land owned by the decedent for equalization purposes, valued the two half sections at $72,000 each.
The commissioners’ appraisal was not made until eighteen months after the decedent’s death, and it is assumed they valued the land *773as of the date of the decedent’s death, contrary to Harlan’s contention that it was appraised at its increased value eighteen months after the date of the decedent’s death. In my opinion these points made by Harlan have no merit, and in view of the court’s determination of these points adverse to Harlan, further comment is unnecessary.
The decedent’s will expresses her intention to give each of her three children an equal amount of her estate in value, except Harlan who was to receive the farm machinery and equipment belonging to the farm. To accomplish her purpose and intention, the testatrix devised the North Half of the section to Harlan, and the South Half of the section to Mary Faye. She then provided for the appointment of three commissioners with their only duty to appraise each of the half sections and to use the value they placed on the land as a means of equalization. Under paragraph Fifth the testatrix provided and bequeathed to Gena property or money equal to one-half of the appraised value of the section of land, as follows:
“Fifth. From my personal estate X will and bequeath to my daughter, Gena M. Hildinger, property or money equal to one-half (%) of the appraised value of the land hereinbefore described, and this bequest shall be satisfied in the following manner: I have heretofore sold to Clay M. Hildinger and J. D. Baer my interest in the partnership of Graves Lumber and Hardware Company; if at the time of my death the notes evidencing the purchase price and secured by said contract have not been fully paid then I direct that my executor shall transfer and set over to my daughter, Gena M. Hildinger, such a portion of the unpaid notes as shall equal one-half of the appraised value of the section of land above described, and if the unpaid balance of the notes shall not be sufficient to equal one-half of the appraised value of said land then the remainder of value shall be paid in cash to the said Gena M. Hildinger, by my executor.” (Emphasis added.)
Paragraph Sixth of the testatrix’ will provided for an equalization between Harlan and Mary Faye, if the two half sections were not appraised at the same price.
By paragraph Seventh the testatrix left the residue of her estate equally to her three children.
Now, if Gena was to have property of the value of $72,000 to equalize the value with Harlan and Mary Faye, she was entitled to cash in the sum of $35,400 in addition to the $36,600 note of her husband, Clay M. Hildinger. The inventory and appraisal disclosed personal property in the amount of $54,324.31, including the note. This, together with the residence, which the executor had authority to sell and convert to cash, was appraised at $18,000, totaling *774$72,324.31. If, for equalization purposes, these assets were applied to the specific bequest to Gena, there would be left $324.31 to be used for the payment of debts, taxes and expenses of administration.
While the residence was later sold at private sale by the executor for the sum of $14,781.12, which was less than the appraised value ■of the residence, according to the final accounting filed by the executor, the cash receipts and the Hildinger note still exceeded $72,000. However, there is not enough over and above the $72,000 required to equalize with Gena to pay the debts, taxes and expenses of administration. The question then is where does the executor get the money to pay the deficiency of the debts, taxes and expenses of administration, assuming the intention of the testatrix is carried out to equalize the distribution of her estate among her three children?
If the executor uses the cash in the estate to pay the indebtedness to which the testatrix directed attention in paragraph First of her will, Gena’s bequest will not be equal to that of the other two children, and herein lies the ambiguity or uncertainty in the will. Paragraph First does not say from what source the funds shall come to pay this indebtedness.
The trial court held that one-third of such deficiency should come from the property bequeathed to Gena, one-third should be paid by Harlan and one-third should be paid by Mary Faye. Only upon failure to pay such deficiency by Harlan and Mary Faye was the ■obligation to become a charge against the real estate.
Mary Faye, against her pecuniary interest, and Gena both agreed with the orders of the trial court, but Harlan appealed. Mary Faye through independently employed counsel filed a brief in support of the trial court’s decision.
The appellant (Harlan) claims that all of the debts, taxes and administration expenses should be paid from the cash on hand, and as a matter of fact, the executor (Harlan) has paid the debts and taxes from the cash, and contends that all of these items should be paid from the cash which would otherwise be used to equalize with Gena. The big problem, considering the assets of the estate, is the federal estate taxes which were in excess of $17,000, and the Kansas inheritance taxes in excess of $1,000. The federal estate taxes were based on $44,800 valuation for each half section of land, but the Federal Internal Revenue Service may open the matter for more taxes based on the $72,000 appraisal by the commissioners.
*775Under the court’s decision all the cash will be spent for the debts, taxes and expenses, leaving only the Hildinger note for Gena in the amount of $36,600, which is slightly over half as much as Harlan and Mary Faye received, contrary to her mother’s expressed intention in her will to equalize the distribution of her property.
The majority of the members of the court hold the trial court erroneously applied rules of judicial construction to the testatrix’ will because the language used was clear and unambiguous. In the opinion the court says:
“Paragraph Fourth of the will provided for the appointment of three commissioners to appraise the land devised at its true value in money. It must be conceded that this was for the purpose of equalizing the legacies in accordance with Paragraphs Fifth and Sixth of the will, if possible, from the personal property.” (p. 767.)
In so doing the court places undue emphasis on the words “From my personal estate” in paragraph Fifth of the will. From this expression the court construes the will to say the testatrix intended to say Gena’s bequest should be paid “from my personal estate, if possible.” It goes even further and says the testatrix meant “from my personal estate remaining after the payment of debts, taxes and expenses of administration.”
What the testatrix said in paragraph Fifth was that Gena should receive from her personal estate property or money equal to one-half of the appraised value of the section of land, and if the indebtedness of Gena’s husband at the time of the testatrix’ death, as evidenced by note, was not sufficient to equal one-half of the value of the section of land as appraised by commissioners pursuant to paragraph Fourth, then the remainder of the value “shall be paid in cash” (Emphasis added) to Gena by her executor.
The rules stated by the court in its opinion and the Kansas authorities cited to support them are conceded to be the law of Kansas, but it is respectfully submitted the rules have been misapplied.
Based upon Kansas cases it makes little difference whether one speaks in terms of “interpretation,” “construing” or “construction” of a will. The expressions have been used interchangeably. (See Custom Built Homes Co. v. State Comm. of Rev. and Taxation, 184 Kan. 31, 334 P. 2d 808; Weiner v. Wilshire Oil Co., 192 Kan. 490, 389 P. 2d 803; In re Estate of Cline, 170 Kan. 496, 227 P. 2d 157; Brown v. Brown, 101 Kan. 335, 166 Pac. 499; In re Estate of Miller, *776186 Kan. 87, 348 P. 2d 1033; and the many Kansas authorities cited in the court’s opinion.)
In the case of In re Estate of Cline, supra, the court said in the first syllabus:
“The primary function of courts in the interpretation of wills is to ascertain the testator’s intent. It must be gathered, if possible, from the four corners of the will and nothing between them may be ignored. When ascertained the intent will be executed unless contrary to law or public policy.”
Similarly, in Brown v. Brotan, supra, the first syllabus reads:
“A rule for the interpretation of wills, to which all other rules are subordinate, is that the intention oí the testator, as gathered from all parts of the will, is to be given effect and that doubtful or inaccurate expressions in the will shall not override the obvious intention of the testator.” (Emphasis added.)
In the Brown opinion the rule stated in Syllabus ¶ 1 was referred to as a canon of construction to which all other rules are subordinate.
In approaching any problem in the construction of a will certain definite rules are to be borne in mind. These rules were well stated in In re Estate of Ellertson, 157 Kan. 492, 142 P. 2d 724, as follows:
“There is no occasion for employing any rules of judicial construction where the intention is expressed clearly and unequivocally in the will (National Life Ins. Co. v. Watson, 141 Kan. 903, 905, 44 P. 2d 269). The will is to be construed so as to give effect to every part thereof, providing an effect can be given to it which appears to be consistent with the purposes of the testator as gathered from the entire will, and to effectuate rather than defeat the intention of the testator. (Ernst v. Foster, 58 Kan. 438, 49 Pac. 527; Selzer v. Selzer, 146 Kan. 273, 69 P. 2d 708.) Controlling significance is not to be given to one of the terms of devise or bequest and other terms ignored. (Johnson v. Muller, 149 Kan. 128, 86 P. 2d 569.) The court must put itself as nearly as possible in the situation of the testator at the time he made the will and from a consideration thereof and the language used in every part of the will, determine the purposes and intentions of the testator (Dyal v. Brunt, 155 Kan. 141, 123 P. 2d 307). All of the above rules are only phases of the fundamental rule that the intention of the testator is to be gathered from the will as a whole and that intention must prevail if it is consistent with the rules of law (Zabel v. Stewart, 153 Kan. 272, 109 P. 2d 177). The above cases are illustrative. Many others of like effect might be cited. It is also to be borne in mind that a will speaks from the time of the testators death, unless it plainly shows a contrary intention, and is to be construed as operating according to conditions then existing. ■ ■ ■ ” (pp- 496,497.) (Emphasis added.)
Applying the foregoing rules, it is to be noted the conditions the court is obligated to take into consideration as of the time of the testatrix’ death are: The extent of the property owned by the testatrix at the time of her death, its description as inventoried; *777the appraised value of the property inventoried; the amount of indebtedness on the Hildinger note; the debts, taxes and expenses of administration; and the persons who were the object of the testatrix’ bounty and her heirs. The executor recognized these conditions when he filed his petition for final settlement; the court in its opinion gave consideration to these facts; and in my opinion the court construed the will to arrive at its conclusion.
An effort will be made to interpret (or construe) the will of the testatrix herein in accordance with the above rules by giving expression to every word used in the will consistent with the overriding intention of the testatrix to equalize the distribution of her estate among her three children.
Paragraph First of the will is to be carefully noted. It does not direct that the debts, taxes and expenses of administration be paid from any given source, nor does it direct that the indebtedness be paid first. It merely directs the executor to pay them. Except as to state inheritance taxes mentioned therein, the direction is the same as required by law. It is to be noted the court in its opinion excepted the state inheritance taxes from its order to the executor.
The court in the instant case seems to have unwittingly followed the doctrine of the old McNutt case (McNutt v. McComb, 61 Fan. 25, 58 Pac. 965) which was disapproved repeatedly by subsequent decisions of this court. The McNutt rule has given way in the construction of a will to the rule that the testator’s intention is to be gleaned from the entire text of the testament, and not by giving a controlling significance to any one paragraph as to render abortive other and subsequent provisions of the will, which likewise indicate part of the testator’s purposes. (In re Estate of Miller, supra.)
A careful study of the will and all of the language used in each and every paragraph thereof discloses the overriding intention of the testatrix to equalize the distribution of her estate among her three children.
Both the appellant and the court in its opinion emphasize paragraph Fifth of the will, that the bequest to Gena should come from the personal estate and be satisfied by assigning the note to Gena with the remainder to be paid in cash. The underlying question in this case is whether the bequest to Gena is on the same basis as the devises to Harlan and Mary Faye.
The record discloses and the trial court found there was sufficient personal property and cash (considering that the residence was *778reduced to cash by the executor as authorized) to equalize the value with Gena. However, after satisfying the bequest to Gena, there was not sufficient money left to pay the debts, taxes and costs of administration.
The appellant contends and the court holds that the deficiency of the amount remaining to pay debts, taxes, costs and expenses should come from the property bequeathed to Gena, and that neither Harlan nor Mary Faye should be required to pay any of the debts, taxes or expenses because they were devised real property.
This was not the intention of the testatrix expressed in her will. It thus seems quite clear that the will must either be interpreted or construed in this respect.
K. S. A. 59-1405 is cited by the court as the statute controlling the question. This must be conceded. This statute provides for the order in which the property is to be used for the payment of debts and other items. It states that unless the will provides otherwise for the payment thereof, the property of the testator, subject to the payment of debts and other items, shall be applied in the following order. Of material consideration in this case are order “(5) property not specifically bequeathed or devised;” and order “(6) property specifically bequeathed or devised.”
The court in its opinion says:
“The notes evidencing the purchase price of the lumber yard in the amount of $36,600.00 bequeathed to Gena was a ‘specific legacy’ while any balance necessary to equal one-half the value of the land was to be paid in cash and constituted a ‘general legacy.’ ” (p. 766.)
This sweeping statement, classifying the balance necessary to equal one-half the value of land as a “general legacy,” fails to take into consideration the overriding intention of the testatrix in her will and it fails to comply with the statute (59-1405, supra). When the intention of the testatrix is taken into consideration the entire bequest to Gena must be classified as a specific legacy just as the land devised to Harlan and Mary Faye is classified as specific devises. This was the intention of the testatrix. Paragraph First of the will does not say from what source of funds the debts, taxes and expenses of administration shall be paid. It merely directs the executor to pay them which he is obligated by law to do absent such provision. Under these circumstances the will does not provide otherwise and the statutory scheme must be pursued.
The statute (59-1405, supra) simply says “property” which in-*779eludes both real and personal property. Thus, property specifically devised or bequeathed includes both a specific devise of real property and a specific bequest of personal property, and the property falling in this classification is all equally liable for the testatrix’ debts. Consequently, when it becomes necessary to resort to assets thus given, the general rule is that the specific legacies and devises must contribute pro tanto; the measure of liability being- proportionate to the value of the respective properties at the testatrix’ death.
In 2 Bartlett, Kansas Probate Law and Practice, § 831, it is said:
“The rule (that personal property is primarily liable for payment of debts ) ought not to have any application where a testator makes a specific bequest of personalty. Such a bequest evidences a clear and unmistakable purpose upon the part of the testator to exonerate the property covered by it from the payment of debts. No stronger statement could be made with regard to realty specifically devised. Neither of these gifts should be preferred to the other. Sound equity dictates that they should contribute pro rata to the payment of debts in the case of a deficiency of assets. It is not so much a question of the application of the abstract rule of law subjecting personalty before realty to the payment of debts, as it is an ascertainment of the testator’s intention; and that intention is evidenced by his making specific bequests and specific devises. In this manner the testator indicates a purpose on his part that both should be exonerated from debts. When that becomes impossible because of deficiency of assets, it is not logical to resort to the dry rule of law above referred to, but on the contrary to sustain the testator’s intention as far as possible. This can only be done by subjecting the specific legacies and devises pro rata.” (pp. 359, 360.) (Emphasis added.)
This brings us back to the intention of the testatrix.
A supposititious case will bring into clear focus the intention of the testatrix in the instant case. Assume the testatrix had been-incompetent for the last ten years of her life and had lived a few years longer; that the price of the section of land she owned in Kiowa County, Kansas, had continued to inflate in value; and that the notes evidencing the balance of the purchase price of the Graves Lumber and Hardware Company had been paid off and reduced to cash at the time of the testatrix’ death. Assume further that the section of real estate had appreciated in value sufficiently to create a federal estate tax liability, together with other indebtedness directed by paragraph First of the testatrix’ will to be paid, which would consume the entire personal estate of the testatrix.. Under the court’s decision Gena would take nothing; Harlan would take a half section of land free and clear, together with the fama machinery and equipment belonging to such farm, and Mary Faye-*780would take a half section of land free and clear. Could anyone say after reading the testatrix5 will herein that she, under such circumstances, intended to disinherit her daughter, Gena? Yet, the rules applied by the court to the facts in this case to arrive at its decision could well lead to this result — a result which is absolutely contrary to the intention expressed by the testatrix in her will.
In Baldwin v. Hambleton, 196 Kan. 353, 411 P. 2d 626, Syllabus ¶ 3 reads:
“A will will be construed in favor of the heirs of a testator, and an heir, including a child of a deceased child, will not be considered as disinherited except by express words or necessary implication."
Why is this result accomplished by the court’s decision? The court says it is because the testatrix failed to take into consideration changed economic conditions. It would be more nearly correct to say that the scrivener of the will faded to give adequate consideration to the prospect of federal estate taxes. Would the court under its decision permit a malpractice action against the scrivener of the will herein at the instance of Gena?
Why should the bequest to Gena be classified as specifically bequeathed property? Because this was the intention of the testatrix.
This subject has been exhaustively treated in 6 A. L. R. 1353-1395, and supplemented in 64 A. L. R. 2d 778-811, under an annotation entitled: “When legacy is regarded as demonstrative.” It is now well settled by courts that the rules of construction generally apply to effectuate the testator’s intention in determining whether or not a legacy is demonstrative, general or specific. In 6 A. L. R. 1358, 1359, it is said:
“The general rules with reference to the interpretation of wills are fully applicable in determining whether a legacy, in any particular instance, is to be treated as demonstrative, general, or specific. Especially operative is the rule that effect will be given to the intent of the testator as evinced by the words of the will, and, in cases where such evidence is admissible, by surrounding ■circumstances. . . .
“. . . As a matter of fact, a legacy is classified for convenience in treatment as general, specific, or demonstrative, because it appears to possess certain ■characteristics and incidents, and these incidents attach because they are construed to have been intended by the testator in the first instance. Thus it is .said that a gift of a specified sum of money with reference to a certain fund is •either specific or demonstrative. It is specific, if the fund is designated as the •exclusive source out of which the legacy is to be paid; it is demonstrative, if the fund is merely the primary but not the exclusive source for the satisfaction •of the legacy. Now it is clear that whether this fund should be considered as *781the exclusive source or not must, by the ordinary rules of construction, depend on the intent of the testator in designating the fund, and it is said that a legacy is classified according to the incidents it is designated to possess by the testator, and not that it possesses these incidents because of its classification. This process of reasoning is found in the general modern authorities, and is supported by the following cases, which hold that the intent of the testator is of primary importance in determining the nature of a legacy: [Many citations follow.]” (Emphasis added.)
After K. S. A. 59-1405 sets forth the order of payment of debts and other items from the property of a testator, it provides in part:
“Demonstrative legacies shall be classed as specific legacies to the extent of the payment thereof from the fund or property out of which payment is to be made, and as general legacies upon failure or insufficiency of the fund or property out of which payment was to be made to the extent of such insufficiency. . . .”
The bequest to Gena is treated by the court as demonstrative. But the court concludes the legacy to the extent it is payable from the Hildinger note is a “specific bequest” under the statute, and to the extent it is payable from cash it is a “general bequest” under the statute.
If the bequest to Gena is demonstrative, the particular fund or property out of which it was made payable is the decedent’s “personal estate.” The testatrix prefaced the bequest to Gena in paragraph Fifth of her will: “From my personal estate.” (Emphasis added.) Under the above statutory scheme the entire bequest to Gena is a “specific legacy.”
I seriously question whether the legacy to Gena was demonstrative as that term has been defined in the case law. A specific legacy is one which is to be paid only out of a particular source or fund designated by the will, so that if the fund out of which it is payable is extinguished, or such a change in it is made as makes it another thing, the bequest fails for reasons paramount to considerations of intention.
Clearly, it was the intention of the testatrix to give Gena a specific legacy equal to one-half the value of the section of land, the only uncertainty in the bequest being the amount required to equalize the distribution of the estate among the testatrix’ three children. By paragraph Fourth the testatrix specified how to ascertain this sum to make it certain and specific. Failure to so interpret the will would ignore paragraph Fourth, which further gives a clue to the intention of the testatrix. By giving effect to the intention *782of the testatrix the bequest in paragraph Fifth of the will was equivalent to a specific bequest of $72,000 to Gena.
The appellant contends the orders of the trial court could require the executor to sell the land if necessary to pay the debts, taxes and expenses. The trial court provided that contributions should be made by Harlan and Mary Faye which would avoid the necessity of selling the land. Mary Faye has consented to the orders of the court and a contribution would be made by her if the trial court were to be sustained. Harlan, however, refused to accept the orders of the court, and the trial court was required to provide some way to enforce collection of the contribution, which could be the sale of the land. In this case the trial court has equity powers to require compliance with the terms of the will in accordance with the intention of the testatrix, and the court is obligated to enforce compliance with 59-1405, supra, where the property of the decedent is liable for her debts and other lawful demands against her estate.
K. S. A. 59-301, referring to the powers of the probate court, states as follows:
“(12) And they shall have and exercise such equitable powers as may be necessary and proper fully to hear and determine any matter properly before such courts.”
Even before our present probate law which specifically extends to probate courts wide equitable powers, probate courts did have some equitable powers. In Selzer v. Selzer, 146 Kan. 273, 69 P. 2d 708, the court required contribution and made it a charge on land. The court said that if a devisee accepted a devise of land, he did so with all obligations that might attach thereto in carrying out the intentions of the testator.
It is respectfully submitted the judgment of the lower court should be affirmed.
Price, C. J., and Kaul, J., join in the foregoing dissent.