Bushee v. Bushee

• Decision Date: 12 March 1981
• Docket Number: No. 9882,9882
• Citation: 303 N.W.2d 320
• Parties: Margaret BUSHEE, Personal Representative and Appellee, v. Charles G. BUSHEE and Donald S. Bushee, Respondents and Appellants. In the Matter of the ESTATE OF Alexander G. BUSHEE, a/k/a George Bushee,a/k/a George Bushee, Jr., Deceased. Civ.
• Court: North Dakota Supreme Court

Page 320

303 N.W.2d 320

Margaret BUSHEE, Personal Representative and Appellee, v. Charles G. BUSHEE and Donald S. Bushee, Respondents and Appellants In the Matter of the ESTATE OF Alexander G. BUSHEE, a/k/a George Bushee,a/k/a George Bushee, Jr., Deceased.

Civ. No. 9882.

Supreme Court of North Dakota.

March 12, 1981.

Vaaler, Gillig, Warcup, Woutat, Zimney & Foster, Grand Forks, for personal representative and appellee; argued by Robert Vaaler, Grand Forks.

Pearson & Christensen, Grand Forks, and Brink, Sobolik, Severson & Vroom, Hallock, Minn., for respondents and appellants; argued by Dennis M. Sobolik, Hallock, Minn ERICKSTAD, Chief Justice.

This case involves the administration of the estate of Alexander G. Bushee and the interpretation of certain provisions of Bushee's last will and testament. Pursuant to a direction in the will, Bushee's spouse, Margaret Bushee, was appointed personal representative of the estate. The testator's two sons by a previous marriage, Charles G. Bushee and Donald S. Bushee, petitioned the County Court of Grand Forks County for supervised administration of the estate, and their motion was granted by the county court in its judgment dated April 6, 1978.

On October 15, 1978, Charles and Donald filed a petition with the county court requesting the court to construe certain provisions of the will. Subsequent to a hearing on the petition, the county court determined, among other things, that the will failed to direct a method of apportionment of estate taxes different from the method described under Sections 30.1-20-16(2) and 30.1-20-16(5)(b), N.D.C.C. Accordingly, the county court entered judgment on February 26, 1979, directing that the estate tax be apportioned according to the foregoing statutory sections. Charles and Donald appealed from the judgment of the county court to the District Court of Grand Forks County, and on September 29, 1980, that Court entered its judgment affirming, in all respects, the judgment of the county court.

Charles and Donald have now appealed from the district court judgment to this Court and have raised the following issues for our determination:

(1) Whether or not the testator's will provides the method by which estate taxes are to be paid by the estate so as to preclude apportionment of such taxes under Section 30.1-20-16, N.D.C.C.;

(2) Assuming that Section 30.1-20-16, N.D.C.C., applies, whether or not the testator's spouse must pay a share of the estate taxes in proportion to the value of the interest she receives from the estate; and

(3) Whether or not the accounting filed by the testator's spouse, as Personal Representative of the estate, reflects inaccurate estate values and expense amounts.

Charles and Donald assert that the testator provided the method by which estate taxes were to be paid from the estate and that, accordingly, the apportionment statute, Section 30.1-20-16, N.D.C.C., does not apply. Margaret's assertion, with which both the county court and the district court agreed, is that the testator's will provides no such direction for payment of estate taxes and that, accordingly, the taxes must be apportioned pursuant to Section 30.1-20-16, N.D.C.C.

Subsection 2 of Section 30.1-20-16, N.D.C.C., provides:

"2. Unless the will otherwise provides, the tax shall be apportioned among all persons interested in the estate. The apportionment is to be made in the proportion that the value of the interest of each person interested in the estate bears to the total value of the interests of all persons interested in the estate. The values used in determining the tax are to be used for that purpose. If the decedent's will directs a method of apportionment of tax different from the method described in this title, the method described in the will controls."

With respect to the apportionment issue, the will provides in relevant part:

"It is my further wish that upon my death that my land, stocks, bonds, Machinery, buildings, or equipment or anything else which may be connected with my business interests, be sold or otherwise disposed of, and that all of my debts, taxes etc; be paid in full, from revenue from such sale. The remaining balance of my estate be divided as follows:

"To my long and faithful employee Roy G. Dubuque $10,000.00 (at final settlement).

"To my wife Margaret F. Bushee, and my sons Charles G. Bushee and Donald S. Bushee, equal shares of 1/3 each of the final balance."

Section 30.1-20-16, N.D.C.C., provides a method of apportioning estate tax by which every part of the estate contributing to the creation of the tax liability bears its fair share of the tax burden. Upon construing a will, this Court will not lightly infer an intent by the testator to exonerate certain estate property from its fair share of the estate tax burden. The estate taxes will be paid according to the apportionment statute unless the decedent's will directs in clear and unambiguous language a method of apportionment different from that provided by the statute. See, In Re Estate of Benton, 191 Neb. 324, 215 N.W.2d 86 (1974); In Re Estate of Hilliar, 498 P.2d 1237 (Wyo.1972); In Re Estate of Erieg, 439 Pa. 550, 267 A.2d 841 (1970); See also, annot., 70 A.L.R.3d 630, § 3(c) (1976).

Charles and Donald assert that the will in the instant case unambiguously directs that payment of the estate taxes be made from the proceeds...