concurring: The trial court and our majority have reached the correct result, and, while I do not disagree with the general statements of law of the majority opinion, I differ from the majority’s reasoning in reaching the same result.
The second article of the will provides:
“[A]ll Federal estate taxes . . . and all inheritance . . . taxes . . ., whether or not attributed to properties subject to probate administration,. . . and all expenses of administration of my estate, shall be paid out of the residue of my probate estate.
My executors shall not be reimbursed for, nor collect, any part of such taxes or estate administration costs . . ., nor shall there be any charge or recovery therefore [sic] . . . against persons not deriving benefits under this Will.”
This provision is in direct conflict to and inconsistent with the directions of the Settlor’s Amendment to Joyce Pickrell Trust, Trust Indenture of June 9, 1982, which provided:
“Trustees are hereby directed and authorized to pay and distribute to Settlor’s executors . . ., from the assets of the Trust, such portion of the total *382Federal estate, State inheritance taxes and administration expenses . . ■. in the share or proportion that the value of the assets of the Trust . . . shall bear to the total value of all assets . . . included in Settlor’s estate . . .
When the payment to the executors is made by the trustees, there has clearly been a “recovery therefore [sic] . . . against persons not deriving benefits under this Will [the beneficiaries of the trust].”
The usage of “shall” rather than “may” in the tax clause of the will must be construed as mandatory that there shall not be any “recovery” from an outside source of funds.
We should not justify our result on the reasoning that, because the will does not prohibit acceptance of a proffered payment by the trustees, the wording of the two. documents is consistent. The testator’s intent in the will is directly contrary to and in opposition with that expressed in the trust’s amendment. The inconsistency between the documents is actual and existing, not “perceived. ”
Joyce Evans Pickrell’s intent in the last instrument she executed is clear. This is stated in the last sentence of the amended Section 12 of her trust as follows:
“It is Settlor’s intent by the preceding, sentence that the Trust assets, the share of each beneficiary of the Trust, and the shares of the beneficiaries of Settlor’s estate outside this Trust, be charged with and bear respective their proportionate share of all Federal estate, State inheritance tax and expenses of administration determined to be due and payable by Settlor’s estate.”
The intent was stated April 23, 1987, almost five years after the will was executed on June 9, 1982.
When a conflict exists between an earlier executed will and a later executed inter vivos trust, the last instrument in, time controls. 42 Am. Jur. 2d, Inheritance, Etc., Taxes § 352. See also Annot., Will Provision — Estate or Inheritance Tax, 69 A.L.R. 3d 122, 215, which recognizes the rule that, in case of a conflict between the provisions of a will and an inter vivos trust, the later instrument will control.
Although Kansas has no cases directly on point, the general rule from other jurisdictions is that, when the provisions of a trust agreement are in conflict with the provisions of a will, the instrument being later in time controls. Matter of Osborn, 8 Misc. *3832d 859, 866, 166 N.Y.S.2d 446 (1957). See In Re Estate of Strohm, 241 So. 2d 167 (Fla. Dist. App. 1970).
Appellants’ contention is that the will’s provisions should control because “a will speaks from the time of the testator’s death, unless it plainly shows a contrary intention, and is to be construed as operating according to conditions then existing,” citing In re Estate of Laue, 225 Kan. 177, 182, 589 P.2d 558 (1979), and In re Estate of Ellertson, 157 Kan. 492, 497, 142 P.2d 724 (1943). Ellertson cited 69 C.J., Wills § 1168, p. 128, which stated:
“The rule making a will speak as though executed immediately before the death of the testator related, it has been explained, to the effect and operation of the instrument rather than to its construction, but, as regards the intention of the testator, the will is to be construed as of the date of execution.”
Usage of the date of execution as the time for determination of intent is clear from In re Estate of Wernet, 226 Kan. 97, 106, 596 P.2d 137 (1979).
Nobody would disagree that in cases such as this our primary function is to ascertain and carry out the decedent’s intent. In re Estate of Cline, 170 Kan. 496, 227 P.2d 157 (1951). Here this intent is clear and is plainly stated in the last document Joyce Evans Pickrell executed, the amended inter vivos trust.