Title Insurance & Trust Co. v. Goodcell

• Decision Date: 15 August 1932
• Docket Number: No. 6777.,6777.
• Citation: 60 F.2d 803
• Parties: TITLE INSURANCE & TRUST CO. v. GOODCELL, Collector of Internal Revenue.
• Court: U.S. Court of Appeals — Ninth Circuit

60 F.2d 803 (1932)

TITLE INSURANCE & TRUST CO. v. GOODCELL, Collector of Internal Revenue.

No. 6777.

Circuit Court of Appeals, Ninth Circuit.

August 15, 1932.

Carey Van Fleet, of San Francisco, Cal., for appellant.

Samuel W. McNabb, U. S. Atty., and Ignatius F. Parker and Alva C. Baird, Asst. U. S. Attys., all of Los Angeles, Cal., and Eugene Harpole, Sp. Atty., Bureau of Internal Revenue, of Washington, D. C. (C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, of Washington, D. C., of counsel), for appellee.

Before WILBUR and SAWTELLE, Circuit Judges, and NORCROSS, District Judge.

NORCROSS, District Judge.

From a judgment for defendant in an action to recover the sum of $60,894.08 paid under protest as an estate tax, the plaintiff, Title Insurance & Trust Company, appeals.

Emil Firth, a resident of Los Angeles, Cal., died August 23, 1922, leaving him surviving his widow, Benveneda S. Firth, and a daughter and granddaughter. The decedent left a last will and testament, dated August 11, 1922, which was duly probated. Under this will the decedent devised and bequeathed all of the property then held by him, including the entire community estate. Substantially all of this property was placed in a trust, which provided for the payment of something less than one-half of the income therefrom to the decedent's wife, and gave her testamentary disposition of one-half of the corpus of the property. Coincident with the execution of the will, his said wife executed a paper containing, among other provisions, the following:

"* * * I hereby elect to and do accept, acquiesce in and consent to said Will and all of its provisions, including disposition at the death of my said husband of all of our community property thereunder, and hereby waive all claims to my share of any community property, and any and all other claims, rights, interests and estates which I may have at the time of the demise of my said husband, upon or in all of his separate property and all of our community property. * * *"

The court found that the value of decedent's gross estate was $1,602,843.55 and the net value $1,361,537.33; that the entire estate was community property, except separate property of the value of $27,700.

The total tax upon the estate was $85,159.86, which was paid under protest and claim for refund in the amount of $60,894.08 filed therefor, which was rejected by the Commissioner of Internal Revenue. In the claim for refund filed, and upon which this action is predicated, appellant defined its position as follows:

"At the time of decedent's death, therefore, the widow had a vested interest and owned outright her community interest so that at the time of his death decedent only owned and his estate then was only one-half of all the community property. The fact that the widow took her community one-half under the will with other benefits is immaterial for the reason that she cannot thereby convey her interest to her spouse as of a time before or at the time of his...