concurring.
I concur in the result. The will and the trust instrument were contemporaneously executed as a part of a single testamentary plan.
[T]he instruments must be construed to avoid, if possible, repugnancy in the various provisions, ... and when, as here, a trust agreement and a will form parts of the same plan, the documents must be construed together.
Commerce Trust Company v. Starling, 393 S.W.2d 489, 494 (Mo.1965) (citations omitted). Also see Love v. St. Louis Union Trust Company, 497 S.W.2d 154 (Mo. banc 1973); Estate of Fleischmann v. Fleischmann, 723 S.W.2d 605 (Mo.App.1987). When so construed, there is an ambiguity in the meaning of the will concerning the assets of the testator with which the “family trust” is to be funded. However, I do not believe this ambiguity is such that it causes the declarations of the testator concerning his testamentary intent to be admissible. Hanna and Borron, 5 Missouri Probate Law and Practice, § 315 (1988).
I do believe the proper construction of the will, when considered with the trust instrument, reaches the same result as the majority opinion. The applicable principles of construction include the following.
The controlling rule in construing wills in this state, to which all technical rules of construction must give way, is to give effect to the true intent and meaning of the testator as the same may be gathered from the whole instrument, if not violative of some established rule of law; and in arriving at that intention the relation of the testator to the beneficiaries named in the will and the circumstances surrounding him at the time of its execution are to be taken into consideration, and the will read as near as may be from his standpoint, giving effect, if possible, to every clause and portion of it, and to this end, if need be, words may be supplied and omitted, and sentences transposed.
Grace v. Perry, 197 Mo. 550, 95 S.W. 875, 877 (1906) (emphasis added). Those circumstances include “any motives which reasonably could have actuated testator in the disposition of his property.” Lehmann v. Janes, 409 S.W.2d 647, 654 (Mo.1966).
It is our task here to find the general purpose of the testator, to reconcile and *925co-ordinate provisions which may appear to be in conflict when such reconciliation and co-ordination can reasonably be made consistent with the general purpose, and, if the testator was confused in the expression of his desires, to pierce through such confusion and reduce to articulate terms the underlying intent.
Coleman v. Haworth, 320 Mo. 852, 8 S.W.2d 931, 932-933 (1928), 7 A.L.R.2d 268 (1949).
Significant circumstances to be considered in construing the will of Paul R. Schupbach include the following. The testator had great affection for his wife. He had confidence in entrusting property to her. He was familiar with the impact of the federal estate tax. By his prior will he devised directly to his wife such portion of his estate required to secure the maximum marital deduction. He devised the remainder to a non-marital trust for the benefit of his wife and children. His obvious purpose was to take advantage of the marital deduction and minimize the federal estate tax resulting from the death of both parties.
Article III of the trust instrument provides that if the grantor’s wife survived him, the “family trust” should be funded with an amount equal to the largest amount that could “pass free of federal estate tax under this trust by reason of the Unified Credit and the State Death Tax Credit_” Article IV of the trust instrument provides that if the grantor’s wife survived him “the trustee shall distribute to her outright and free of trust the remainder of the trust estate not otherwise disposed of hereunder.” As noted, Article III of the will devised testator’s residuary estate to the named trustee adding that “such residuary estate to become a part and parcel of the said Family Trust.” The latter provision is in direct conflict with the residuary clause of the trust instrument.
Considering the surrounding circumstances, the obvious intent of the testator is to fund the family trust only to the extent the creation of that trust will result in the minimum federal estate tax being imposed upon the death of both husband and wife. This intent is not to be defeated by an inadvertent misuse of language. Briant v. Garrison, 150 Mo. 665, 52 S.W. 361 (1899); 5 Missouri Probate Law and Practice, § 364. The will should be construed to effectuate this intent and if need be, words may be supplied and omitted and sentences transposed. The residuary clause of the will should be construed to read as follows:
All of my residuary estate I give and devise to BOATMEN’S NATIONAL BANK, Springfield, Missouri, which is named trustee of the Trust in the Trust Agreement dated April 4, 1984, between myself, as Grantor, and BOATMEN’S NATIONAL BANK as trustee, ... such residuary estate to become a part and parcel of the said Trust and to be held, administered and distributed pursuant to the terms thereof.
Such construction will result in funding the family trust in the amount of $325,000 as determined by the trial court and the majority opinion. The remainder of the entire trust estate will be distributed to the wife under paragraph IV of the trust instrument.