Batterton v. United States, 26263.

• Decision Date: 02 June 1969
• Docket Number: No. 26263.,26263.
• Citation: 406 F.2d 247
• Parties: A. J. BATTERTON, Executor of the Will of Mary Todd Batterton, Deceased, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

406 F.2d 247 (1968)

A. J. BATTERTON, Executor of the Will of Mary Todd Batterton, Deceased, Appellant, v. UNITED STATES of America, Appellee.

No. 26263.

United States Court of Appeals Fifth Circuit.

December 10, 1968.

Rehearing Denied January 28, 1969.

Certiorari Denied June 2, 1969.

James G. Stephenson, Brown, Dixon & Shear, Tampa, Fla., for appellant.

Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Roger Moore, David E. Carmack, Jonathan S. Cohen, Attys., Dept. of Justice, Washington, D. C., Edward F. Boardman, U. S. Atty., Tampa, Fla., for appellee.

Before TUTTLE and AINSWORTH, Circuit Judges, and MITCHELL, District Judge.

Certiorari Denied June 2, 1969. See 89 S.Ct. 1995.

TUTTLE, Circuit Judge:

The decision in this case turns upon our deciding whether a contract to make mutual wills, carried out by the decedent in favor of her husband by the execution of a will "pursuant to the attached contract this day made," and which was attached as an exhibit to the will, became a part of the will by incorporation in such manner as to convert what might otherwise appear to be a residuary bequest in fee simple to the husband into a life estate.

The resolution of the question is necessary to determine whether the estate of the decedent is entitled to deduct one half of the wife's separate property, thus conveyed to her husband, from the taxable estate as a marital deduction under the provisions of 26 U.S.C.A. § 2056.

On May 3, 1954, A. J. Batterton and his wife, Mary Todd Batterton, the decedent, executed mutual wills, both of which, in the first paragraph, stated that they were executed "pursuant to the attached contract this day made with my wife or husband." A copy of a contract of the same date was attached as an exhibit to each of the wills.

Each of the wills made what appeared to be a devise and bequest to the survivor in fee simple to the other spouse of the entire estate. Each of the wills had a second paragraph which provided as follows:

"2. Should my said husband predecease me, I give, devise, and bequeath all of my property, real, personal, and mixed, wherever situated, whereof I may be seized or possessed, or to which I may be in any manner entitled, or in which I may be interested, at the time of my death, to the United Christian Missionary Society, Missions Building, Indianapolis, Indiana, a corporation created by and existing under the laws of the State of Indiana, in trust nevertheless to be used for charitable purposes only the income therefrom to be divided equally between Florida Christian Home, Edgewood, Jacksonville, Florida, Hazel Green Academy, Hazel Green, Kentucky, and said United Christian Missionary Society."

The contract "pursuant" to which each of the wills was executed, and a copy of which was attached to the wills, provided as follows:

"WITNESSETH: each hereby agrees, in consideration of the promises of each to the other, that neither will without the consent in writing of the other revoke, or make any Last Will and Testament different from, his or her Last Will and Testament copies of which are attached hereto, and that neither will during his or her lifetime make any gift, or transfer or assign any of his or her property without receiving a fair financial consideration, except for Public Charities."

Thus it is that upon the death of Mrs. Batterton on April 21, 1962, a resident of the state of Florida, her husband became entitled to receive her entire estate which he could utilize and, if he desired, consume, subject only to the restraints imposed upon him by the will-cum-contract that he could neither give away to any person other than a public charity nor leave by will to any other than the named residuary beneficiary, the religious remainderman.

For whatever legal effect it may have, appellant, in his brief, concedes that "at the time of her death the two wills and the agreement above referred to were in full force and effect."

Stated in non-technical language, the estate of Mrs. Batterton is entitled to be reduced by the amount of a marital deduction provided for in the Federal Statutes to the extent of any fee simple bequest to her surviving husband, or to the extent of the amount left to her husband in a life estate provided the husband is given the absolute power of control and disposition of the property constituting the life estate either by power of appointment or by his own will. See 26 U.S.C.A. § 2056(b), and Federal Tax Regulations, Sections 20.2056(b)5(a).

It is the thrust of appellant's contention here that the will stands by itself, and as such, it conveyed a fee simple estate to the husband. It is argued that the husband's obligation so to deal with the estate received by him from his wife to pass it on by his will intact to the named residuary legatee, and to refrain from giving it away during his lifetime except for charitable purposes, was an obligation imposed not by the nature of the estate created by Mrs. Batterton's will, but rather by a contract which, fortuitously, was signed on the same day as that on...