Stewart

The State Controller appeals from a judgment awarding respondent Marian Sisk Stewart (Marian) a refund of gift taxes paid by her under protest plus interest.

On November 14, 1948, Cepha and Robert Sisk (Cepha and Robert), husband and wife, orally agreed that on the death of either, the survivor would succeed to all the property of the other and that such survivor would leave all property in his or her possession at the time of death to their daughter, Marian, to take absolutely at age 35. Mutual wills were executed by Cepha and Robert.

Cepha died on November 17, 1957, without having changed her will. Her property, all of which was community, passed to Robert. An order fixing inheritance tax on his succession to her estate was entered on December 11,1961.

On May 9, 1960, Robert revoked his mutual will by means of a holographic will. Robert died on February 25, 1964. Along with minor bequests not at issue, the bulk of Robert’s estate was left in a trust from which Marian was to receive the income.

Marian thereafter brought an action to impose a constructive trust on Robert’s estate. Judgment in her favor was entered on August 1, 1966. The Controller sought to impose…