not have the right to this income for his life, nor that same was retained, as provided in the statute, 'for any period which does not in fact end before his (Trustor's) death', plaintiffs specifically referring in that regard to Paragraphs 3 and 6 of the Trust agreement.
Paragraph 3 of the agreement provides:
'The Trustee shall have the right, in his sole discretion, to release any portion of the lands and premises from the lien of said mortgage upon payment to him of the reasonable value of the portion of the lands and premises so released. The payment so received shall be distributed among those entitled thereto in the proportions hereinafter set forth.'
Plaintiffs claim that the Trustee may accordingly receive payment of the mortgage and distribute such payment, thus terminating the trust, this possibly occurring before decedent's death. Plaintiffs then refer to the distribution clause of the agreement, Paragraph 7. This provides: 'The Trustee shall distribute the proceeds of the said bond and mortgage and the interest to accrue thereon after the decease of the Trustor, among * * *' certain children, or other members of the family.
But in the first place, the undisputed facts are that no such contingency occurred. The mortgage was never paid off by the mortgagor to the trustee. So, even if we disregard entirely the above reservation in Paragraph 4 of the agreement to the Trustor, of the exclusive right to the interest 'during his lifetime', we have a situation where the decedent still had the right to the income from the mortgage at the time of his death. Thus, the mortgage was taxable, under the very words of the statute, since the Trustor had the right to the income from the property for a 'period which does not in fact end before his death.' The period, of the existence of the mortgage before its payment, in fact continued till after decedent's death. It is the facts as they existed at the time of death to which this clause refers, according to the legislative history of the Act. Committee Reports 1932, amended House Report 708, 72nd Congress, 1st Session, Age 46-7. For this reason, mere contingencies which never occur are to be disregarded in applying the Act. Goldstone v. United States, 1945, 325 U.S. 687, 693, 65 S. Ct. 1323, 89 L. Ed. 1871.
Since this contingency as to the paying off of the mortgage is to be disregarded, it is quite immaterial whether plaintiffs' interpretation of this contingency is correct in the light of the extrinsic evidence which he claims he can introduce, i.e., that there paid off mortgage proceeds should be distributed immediately to the other beneficiaries than the Trustor, or whether, on the other hand, the defendant's interpretation of same is correct, to wit, that the trust continues as to such proceeds, and that same are not distributable till the death of the Trustor. For, in either event, the contingency never occurred. Indeed, it might be added that, unless and until such contingency occurs, the Trustor has not a mere possibility of receiving the income, but a definitely vested right thereto.
Plaintiffs further contend that the express reservation to the Trustor of the exclusive right to the income during his lifetime, as aforesaid, is defeated by the provisions of Paragraph 6 of the instrument. This paragraph provides:
'Except as herein specifically limited, the Trustee shall have the right to reduce or waive the interest charge on the said indebtedness for any portion of the unexpired term thereof including such extensions as may be granted; provided, nevertheless, that such reduction or waiver shall not become effective until it shall have been approved by two of the cestuis que trustent herein named not including the Trustee individually.'
Were it not for the above 'except' clause, the provision that the Trustee has the right to reduce or waive the interest, with the approval of two of the cestuis, would be contrary to the provision of the Paragraph 4 that 'the Trustor shall have the exclusive right during his lifetime to * * reduce or waive the same (interest) in his sole discretion.' But this ambiguity is immediately cleared up by this 'except' clause, which obviously refers to the provisions of the entire agreement, including Paragraph 4. It further will be noted that the right of the Trustor to so reduce or waive the interest is limited to the Trustor's lifetime, while the right of the Trustee to do the same thing is general. Obviously, therefore, the intent of the instrument was to give the Trustor this right during his lifetime, and the Trustee, with the two cestuis, the same right after the Trustor's death.
But plaintiffs claim that extrinsic evidence will show that this 'except' clause refers only to Paragraph 6, and not to the instrument as a whole, including Paragraph 4. Though we have just found that, giving the instrument and this 'except' clause the normal construction, there is no ambiguity whatever in the instrument, we find, on the contrary, that the introduction of this alleged extrinsic evidence would, far from clarifying the instrument, create a clear ambiguity in the instrument. This is because plaintiffs' attempted construction would, by Paragraph 4, vest the right to reduce or waive the mortgage interest exclusively in the Trustor during his life, whereas, by Paragraph 6, this same right would be vested generally in the Trustee. However, parol evidence is admissible, not to vary or contradict the terms of an instrument apparently complete on its face, but only to clarify an ambiguity in such instrument. Buchanan v. Swift, 7 Cir., 1942, 130 F.2d 483; 17 C.J.S., Contracts, § 597. Obviously, therefore, no extrinsic evidence is admissible in this regard, as it would simply create an ambiguity, where none existed previously.
Since there is no ambiguity in the instrument, there is no room whatever for the admission of extrinsic evidence.
Plaintiffs further claim that the fact that the mortgage interest was not paid Trustor for the last few months before his death prevents the transfer from being taxable, as one where the Trustor has not retained the possession or enjoyment of the income for a period which does not in fact end before his death. The answer to this is three-fold. First, this non-payment was in exact accord with the trust agreement, which specifically authorized the Trustor to waive such payment at his discretion. Second, we are here concerned, not with the possession of income, but with the right to income. Third, even if the payment of the income ended before Trustor's death, Trustor's right to the income did not end before his death, but, in fact, according to the agreement, was expressly retained 'for his life.'
Since there is no ambiguity in the entire instrument, which alone is relied on by plaintiffs as divesting decedent's estate of the property in question, no extrinsic evidence as to the legal effect of this instrument is admissible for a jury to consider. Since the pleadings and affidavits thus show there is no genuine issue as to any material fact, and that the property titled to judgment. An order accordingly may be submitted by counsel.