Opinion
May 15, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 453
Spurgeon, Aman & Hanes, Richard W. Hanes, Colorado Springs, for petitioner-appellee.
Robert Dunlap, Colorado Springs, for respondent-appellant.
SILVERSTEIN, Chief Judge.
First National Bank of Colorado Springs, executor of the Estate of Dale C. Sanderson, deceased, sought a declaratory judgment to determine whether certain assets of the decedent were held by her in trust or were to be included in her estate to be distributed under her will. All of the beneficiaries having interests under the will and the trust were served with process. Gene Berkley, one of the trust beneficiaries, was the only beneficiary to appear. Following a trial to the court, judgment was entered declaring that the assets were not held in trust and were to be included in the probate estate. Berkley appeals from that judgment. We reverse.
The material facts are undisputed. The executor's evidence disclosed that, following the death of Miss Sanderson in 1970, one of its trust officers found among her assets a revocable trust agreement dated October 4, 1968, in which Miss Sanderson was both settlor and trustee. By the terms of the instrument the settlor transferred to the trustee shares of Financial Industrial Income Fund, Inc., (F.I.I.F) purchased by her, 'together with such additional shares . . . as more particularly described in the 'Schedule of Investments' (see reverse side) which may be hereafter included in this trust . . ..' In the 'Schedule of Investments' the following was hand written: 'F.I.I.F. acct No F3730 certif # G4340.' Stapled to the trust agreement was a stock certificate of F.I.I.F. bearing number G6578, which had the legend F03730 in the upper left hand corner, and which stated, 'This Certifies that Dale C. Sanderson TR UDT DTD 10/04/68 is the owner of' 6162 shares of F.I.I.F. The certificate was dated December 23, 1969. The trust agreement and the certificate were admitted into evidence. The bank's trust officer who testified to the above facts stated, on cross-examination, that he understood the initials following Miss Sanderson's name on the certificate to mean, 'Trustee, under declaration of trust, dated 4 October, 1968.'
The beneficiary then introduced evidence which established that when the declaration of trust was executed, Miss Sanderson held F.I.I.F. stock certificate #4340 as trustee under the declaration of trust; that on November 3, 1969, Miss Sanderson transferred 1000 shares of F.I.I.F. from the trust fund to another similar trust account; and that thereafter certificate G6578 was issued and delivered to her in December 1969. The form which Miss Sanderson signed for the transfer of the 1000 shares contained the following: 'Any revocable Declaration of Trust executed in connection with the above account is hereby revoked.' The subject declaration of trust provided, 'The undersigned Trustor, at any time may revoke or modify the trust, in whole or in part, by appropriate written instrument.' An officer of the company managing F.I.I.F. testified that when only part of the assets of a trust was being transferred, the revocation stated in the form was treated as a partial revocation only. The evidence also disclosed that on the receipt which Miss Sanderson signed for certificate G6578 she was designated as trustee under the declaration of trust dated October 4, 1968.
The trial court determined that the trust had been revoked and that the shares represented by certificate G6578 were to be included in the probate estate of the decedent. The sole issue on review is whether the trust had been revoked or remained valid and subsisting.
Resolution of this issue depends upon a determination of the intent of the decedent, as it may be gleaned from the documents presented in evidence. In construing the documents, the cardinal rule is to determine the actual intent from the instruments in their entirety, and to carry out that intent. Meier v. Denver U.S. National Bank, 164 Colo. 25, 431 P.2d 1019. Since the evidence in this case relevant to the decedent's intent consists of documents, this court is not bound by the trial court's findings. Meier v. Bank, Supra; Helmericks v. Hotter, 30 Colo.App. 242, 492 P.2d 85.
The trust instrument is complete and unambiguous. The stock certificate stapled thereto shows that it was held by the decedent as trustee under the declaration of trust. The only possible ambiguity arises from the handwritten reference to a different certificate on the schedule of investments. This ambiguity was resolved by the evidence of the transfer of 1000 shares and the issuance of certificate G6578 for the shares remaining in the account. The document evidencing the transfer of the 1000 shares is ambiguous in that it contains a statement which, standing alone, apparently revokes the trust. However, the document in all other particulars indicates only a partial revocation. The form contains several blank spaces which were filled in by typing. This information shows a transfer of only a part of the assets of the trust. Where there is a discrepancy between the printed parts of a document and those which are typed in or written, the latter generally control. Nicklis v. Nakano, 118 Colo. 317, 195 P.2d 723.
The pertinent documents issued subsequent to the transfer of the 1000 shares further indicate decedent's intent to hold the shares evidenced by certificate G6578 as trustee under the trust. The certificate so stated, as did the receipt for the certificate, which she signed. The fact that the certificate was stapled to the declaration of trust is further evidence of that intent.
Although a trust, revocable by its terms, can be revoked by a definite manifestation of the settlor's intent to revoke, '. . . a trust is not revoked by any . . . act which is consistent with its continued existence.' Hoffa v. Hough, 181 Md. 472, 30 A.2d 761. All of the acts of the decedent subsequent to the transfer of the 1000 shares were consistent with the continued existence of the trust. We hold, therefore, that the trust was not revoked and that the shares evidenced by certificate G6578 must be distributed to the trust beneficiaries in accordance with the terms of the declaration of trust.
The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
COYTE and SMITH, JJ., concur.