Opinion
No. 88-4.
November 15, 1989.
On Rehearing of Appeal from the District Court of Sweetwater County; Kenneth G. Hamm, Judge.
Robert James Wyatt, Henry A. Burgess, Burgess Davis, Sheridan, for appellant.
David E. Arnold, Michael J. Finn, Scorsine Law Offices, Rock Springs, for appellee, First Security Bank of Rock Springs.
Edward R. Munson, Jones Waldo, Holbrook McDonough, Salt Lake City, for First Security Bank of Utah, N.A.
Calvin E. Ragsdale, Marty Ragsdale, Green River, for appellees, Rock Springs Grazing Ass'n, Lazy VD Land and Livestock, Elza Eversole, and Lois M. Eversole.
David L. Baker, Sp. Asst. Atty. Gen. for amicus curiae, University of Wyoming, Laramie.
Before CARDINE, C.J., THOMAS, MACY and GOLDEN, JJ., and ROONEY, J., Retired.
ORDER DENYING PETITION FOR REHEARING AND CONFIRMING PRIOR DECISION
This case came on before the Court upon the Petition for Reargument and Rehearing of Appellant, Shriners Hospitals for Crippled Children, filed on April 5, 1989; Appellant's Brief in Support of Petition for Reargument and Rehearing, filed April 5, 1989; Appellant's Supplemental Brief upon Rehearing Pursuant to the Court's Order Dated April 21, 1989, filed May 18, 1989; Answer of Appellees, Rock Springs Grazing Association, Lazy VD Land and Livestock, Elza Eversole and Lois M. Eversole to Petition for Reargument and Rehearing of Appellant, filed May 19, 1989; Brief on Rehearing of Appellees Rock Springs Grazing Association, Lazy VD Land and Livestock, Elza Eversole and Lois M. Eversole, filed May 19, 1989; Answer and Supporting Brief on Rehearing of Appellees First Security Bank of Utah, N.A. and First Security Bank of Rock Springs, filed May 22, 1989; and Brief of Amicus Curiae University of Wyoming upon Rehearing, filed May 22, 1989; and the oral argument of counsel, and the Court, having reviewed the file and record of the Court and the opinion of the Court in Matter of Estate of Jones, 770 P.2d 1100 (Wyo. 1989), finds and holds that:
The primary interest of the University of Wyoming as amicus curiae is expressed in its statement of the issue as follows:
"1. Whether the property interest of the remainderman of a charitable remainder trust is a contingent interest or vested interest subject to complete defeasance."
The Shriners Hospitals for Crippled Children also expressed concern about its categorization as a contingent beneficiary.
The Court is of the opinion that the prior decision of the Court should be confirmed insofar as it is expressed in the essence of the ratio decidendi:
"The resolution of the problem of notice does not depend, however, upon whether Shriners was a vested beneficiary or a contingent beneficiary. It still was not a `beneficiary named in the will.'" Matter of Estate of Jones, 770 P.2d at 1103.
The Court now is of the opinion that the description of the Shriners Hospitals for Crippled Children and the University of Utah as contingent beneficiaries of the testamentary trust is not a material concern with respect to the disposition of this case. Consequently, the Court withdraws that categorization and those portions of the prior opinion that seem to depend upon, or discuss, the status of Shriners Hospitals for Crippled Children and the University of Utah as contingent beneficiaries.
The Court understands that the requirement in the testamentary trust that those beneficiaries qualify as organizations described in §§ 170(c) and 2055(a) of the Internal Revenue Code is verbiage that is necessary to assure that the trust will be treated as a charitable remainder trust by the Internal Revenue Service. Consequently, it would appear that the point made by the University of Wyoming as amicus curiae that these beneficiaries should be perceived as vested beneficiaries whose interest may be defeated by the loss of their status as a charitable organization is sound and should be respected. We do not deem it necessary to so hold, however, any more than we now deem it to have been necessary to identify Shriners Hospitals for Crippled Children and the University of Utah as contingent beneficiaries.
The crux of this case is that any beneficiary of a trust created in a will is not a beneficiary under the will for purposes of the notice requirements of §§ 2-7-615 and 2-7-205, W.S. 1977. We need make no further categorization of the status of Shriners Hospitals for Crippled Children than to conclude that it was not a "beneficiary under the will."
IT, THEREFORE, IS ORDERED that the Petition for Reargument and Rehearing of Appellant, Shriners Hospitals for Crippled Children, be, and the same hereby is, denied, and the opinion of the Court in Matter of Estate of Jones, 770 P.2d 1100 (Wyo. 1989), is confirmed except that it is modified to withdraw therefrom any categorization of Shriners Hospitals for Crippled Children and the University of Utah as contingent beneficiaries.
ROONEY, Justice, Retired.
I would have granted the petition for the reasons set forth in my dissent and in the dissent of Chief Justice Cardine.