concurring: Joyce Evans Pickrell died testate on October 7, 1987. Her will, executed on June 9, 1982, was duly admitted to probate.
During her lifetime, the decedent was the beneficiary of a testamentary trust (Trust No. 1) established by her late husband, Lloyd R. Pickrell. She also was the donee of a general power of appointment for the Trust No. 1 trust estate, exercisable by will. The decedent exercised that power by including this in her will:
“I hereby intend to and by this Will do fully exercise said power of appointment and appoint . . . the entire trust estate of TRUST NO. 1 ... to my trustees hereinafter named . . . for the use and benefit of my grandchildren .... This trust shall be known as the Joyce E. Pickrell Testamentary Trust . . . .”
The will provides for certain specific bequests, the sale of decedent’s residential properties by her executors, and the disposition of tangible personal property pursuant to K.S.A. 59-623. *384It then provides that “[a]ll the rest, residue and remainder of my estate ... I give, devise and bequeath unto [the trustees of the Joyce E. Pickrell Testamentary Trust], and such property shall become a part of the [Testamentary Trust].”
The now significant text of the will is this:
“I direct that all .. . estate taxes . . . and all inheritance . . . taxes payable upon or resulting from or by reason of my death, 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 from, any person, legatee, devisee, or beneficiary under this Will, nor shall there be any charge or recovery [therefor] upon the basis of proration, apportionment, contribution, distribution, or otherwise, against estates not included in my probate estate, or against persons not receiving benefits under this Will." (Emphasis added.)
By a trust indenture executed contemporaneously with the execution of her will in 1982, the decedent, as settlor, established a revocable inter vivos trust for the benefit of herself for life with the remainder to her two children and two nieces. Some five years later, on April 23, 1987, the decedent altered and amended the inter vivos trust indenture to read in part:
“[U]pon the death of Settlor, . . . [the] Trustees are hereby directed and authorized to pay and distribute to Settlor s executors . . . from the assets of [this inter vivos trust], such portion of the• total Federal estate, State inheritance taxes and administration expenses . . . due and payable . . . by reason of Settlors death, in the share or proportion that the value of the assets of [this trust] . . . shall bear to the total value of all assets, including the value of the assets of this Trust . . . included in .. . determining the taxes due and payable ... by Settlor s estate. It is Settlors intent . . . that [this trust’s] assets, the share of each beneficiary of [this] Trust, and the shares of the beneficiaries of Settlor’s estate outside this Trust, be charged with and bear [respectively] their proportionate share of all Federal estate, State inheritance tax and expenses of administration determined to be due and payable by Settlor’s estate.”'(Emphasis added.)
In sum, the trial court held, and we hold, that by the foregoing text of the decedent’s will and the inter vivos trust indenture, as amended, the inter vivos trust trustees are charged with the duty to pay to the decedent’s executors a sum equivalent to the inter vivos trust’s proportion of the estate and inheritance taxes and administration expenses payable by reason of the death of *385Mrs. Pickrell with the proportion being the ratio that the inter vivos trust’s assets bear to the decedent’s taxable estate, including the inter vivos trust.
I agree with Judge Larson that the will and trust indenture here are inconsistent and, therefore, in conflict.
Based on a theory of last expressed intent, it seems to be a general rule that, when a trust instrument’s directions for payment of death taxes conflict with directions in the settlor’s will, the instrument executed later in time controls. Matter of Osborn, 8 Misc. 2d 859, 866, 166 N.Y.S.2d 446 (1957).
Inasmuch as the supporting authorities cited by the parties and found in our research concern only wills and trust instruments, I conclude that the “rule” of last expressed intent as to responsibility for payment of death taxes applies to will and trust instrument conflict cases only. This is consistent with related provisions in the Kansas Inheritance Tax Act. K.S.A. 79-1537d; K.S.A. 79-1538.
No authority cited or found has applied the rule of last expressed intent as to responsibility for payment of death taxes other than where a will and a conflicting trust instrument are involved. That leads me to conclude that the last expressed intent effect is not to be afforded to a later instrument that conflicts with a will or trust instrument in those instances where the later instrument is not a will or trust instrument. That, of course, is not the case before us.
Further, I am satisfied that acceptance here of the last expressed intent theory is limited to cases where responsibility for payment of or reimbursement for death taxes is the subject.