Estate of Carley

Hubler, Burford, Moran & Quirk and John F. Quirk for Claimant and Appellant.

Cavalero, Bray, Shumway & Geiger, Cavalero, Bray, Geiger, Rudquist & Kelly and John B. Rudquist for Claimant and Respondent.

OPINION

KANE, J.

The appeal at hand involves the interpretation of the will of decedent Jesse C. Carley and deals with the specific issue of whether federal estate and state inheritance taxes should be borne by the residuary (probate) estate or the taxable estate of the decedent. The facts pertaining to the matter are simple, and may be stated as follows:

Appellant Ann C. Hubbard is the niece of the decedent and the residuary heir of his estate. Kathleen Mitchell, a cousin of the decedent (hereafter respondent), is a conditional beneficiary under the will who received her legacy, a joint tenancy bank account valued at $29,227, by right of survivorship. The will in dispute, dated July 20, 1975, was admitted to probate by a court order of December 2, 1976. Since the pertinent clause of the will (clause five) provided in broad terms only that "All estate and inheritance taxes levied or assessed shall be paid out of my estate " (italics added), the co-executors petitioned the…