Steele v. Toulson

*110 Opinion

The executor of the estate of Grace C. Steele, deceased, petitioned under Probate Code section 1080 1 for a determination whether a $12,000 per year bequest to Arlean Toulson (objector) should be charged with a proportionate share of federal estate and California inheritance taxes. The trial court determined that the bequest was not subject to apportionment of taxes and ordered that the bequest be paid without diminution for taxes. Executor appeals from this order.

The facts which gave rise to the instant appeal are as follows: Grace Steele died testate in 1974 leaving a formally witnessed will, first, second and third codicils, and a holographic codicil. The testamentary documents were all admitted to probate. In her will, executed in 1962, decedent left a number of specific legacies to charities and educational institutions and the residue of her estate in trust for her four children. Article Eight of the will directed that estate and inheritance taxes be prorated equitably among those persons receiving gifts from the gross *111 taxable estate. 2 The first codicil left some specific legacies to private individuals and also changed the residuary clause of the will,…

I dissent.

I agree with the majority that an annuity must bear a prorated portion of death taxes absent a contrary expression by the testator. However, I dissent from that portion of the majority opinion which holds that this holographic codicil expresses an intention that the recipient of the annuity be relieved from her share of death taxes.

As the majority observe, apportionment of taxes is the general rule unless there is a clear and unambiguous direction to the contrary. I find no such clear and unambiguous directon in this codicil. If the decedent had wanted this bequest to be handled in a different manner than other bequests, all she had to do was add two words—“without taxes.”

The decedent executed a formal, witnessed will and three formal, witnessed codicils. In these she made specific bequests to five individuals. I assume she held these persons in some esteem and did not get their names out of the telephone directory. I infer that they were friends, associates, compánions and may have even been former servants. Then she left part of her estate to her children for whom I assume she also had some affection.

The trouble is that this will and these codicils were drafted…

Levy, Leipziger & Norminton and David A. Leipziger for Objector and Respondent.

OPINION

TAMURA, J.

The executor of the estate of Grace C. Steele, deceased, petitioned under Probate Code section 1080 [1] for a determination whether a $12,000 per year bequest to Arlean Toulson (objector) should be charged with a proportionate share of federal estate and California inheritance taxes. The trial court determined that the bequest was not subject to apportionment of taxes and ordered that the bequest be paid without diminution for taxes. Executor appeals from this order.

The facts which gave rise to the instant appeal are as follows: Grace Steele died testate in 1974 leaving a formally witnessed will, first, second and third codicils, and a holographic codicil. The testamentary documents were all admitted to probate. In her will, executed in 1962, decedent left a number of specific legacies to charities and educational institutions and the residue of her estate in trust for her four children. Article Eight of the will directed that estate and inheritance taxes be prorated equitably among those persons receiving gifts from the gross taxable estate. [2] The first codicil left some…