Calvert v. Fort Worth Nat. Bank, 10850

• Decision Date: 14 June 1961
• Docket Number: No. 10850,10850
• Citation: 348 S.W.2d 19
• Parties: Robert S. CALVERT, Comptroller of Public Accounts of the State of Texas et al., Appellants, v. FORT WORTH NATIONAL BANK, Independent Executor of the Estate of Frank Taylor, Deceased, Appellee. ,Court of Civil Appeals of Texas, Austin
• Court: Texas Court of Appeals

Page 19

348 S.W.2d 19

Robert S. CALVERT, Comptroller of Public Accounts of the State of Texas et al., Appellants, v. FORT WORTH NATIONAL BANK, Independent Executor of the Estate of Frank Taylor, Deceased, Appellee.

No. 10850.

,Court of Civil Appeals of Texas, Austin.

June 14, 1961.

Rehearing Denied July 5, 1961.

Will Wilson, Atty. Gen., W. V. Geppert, W. E. Allen, Asst. Attys. Gen., Austin, for appellants.

Stone, Parker, Snakard, Friedman & Brown, James A. McMullen, III, Fort Worth, for appellee.

HUGHES, Justice.

The Fort Worth National Bank, as independent executor of the Estate of Frank Taylor, deceased, brought this suit against the Honorable Robert S. Calvert, the Honorable Will Wilson and the Honorable Jesse James, Comptroller of Public Accounts, Attorney General and Treasurer of the State of Texas, respectively, in their official capacities, to recover inheritance taxes claimed to be due the State by such executor under Art. 14.01 et seq., Taxation General, Vol. 20A, Title 122a, Vernon's Ann.Civ.St., and paid by the executor under protest in accordance with the provisions of Art. 7057b, V.A.C.S.

In a nonjury trial, judgment was rendered for the Executor.

The material facts were stipulated and are:

Frank Taylor, a resident of Tarrant County, died April 19, 1957, leaving a written will, duly probated, by the terms of which the Bank was appointed Independent Executor of decedent's estate, and which will provided, in part:

'It is my purpose by this will to dispose of all property belonging to me and the entire community estate of myself and my wife, Pearl S. Taylor; that is to say, with respect to such community estate it is my purpose by this will not only to dispose of my interest but also the interest therein of my wife. It is my belief that her welfare would be best served by the disposition which I am herein making of our entire community property, and it is my sincere wish that my wife elect to take under this will rather than to take her one-half of the community estate independently thereof.'

This will provided for certain benefits to Pearl S. Taylor should she elect to take under the will, and it provided for certain other benefits of her in the event she should not elect to take under the will. The will also made bequests to relatives and friends.

In the event Mrs. Taylor elected to take under the will, a testamentary trust was established which provided that she would receive the income of the trust or $500 per month, whichever was greater, for life, and that upon her death the trust would terminate and the property then on hand would be divided one-half to the heirs of Frank Taylor and one-half to three named relatives of Pearl S. Taylor.

At the time of his death, Mr. Taylor owned separate property of the value of $1,750.23, and he and Pearl S. Taylor, at such time, owned a community estate of the net value of $185,190.64.

Subsequent to the probate of the will of Frank W. Taylor, the widow, Pearl S. Taylor, elected to take under such will as is evidenced by the following instrument executed by her:

'No. 26982

Estate of Frank Taylor, Deceased}

In the County Court of Tarrant County, Texas Sitting in Probate

'Election to Take Under Will

'Now Comes Mrs. Pearl S. Taylor, a resident of Tarrant County, Texas, and the surviving wife of Frank Taylor deceased, and with respect to the Will of her deceased husband, Frank Taylor, dated October 2, 1950 and heretofore duly admitted to probate by the County Court of Tarrant County, Texas, in this proceeding, respectfully says:

'That she elects to take under such Will and to receive the benefits provided for her therein, and recognizes and acknowledges that said Will validly disposes of the entire community estate of herself and her deceased husband; and she relinquishes such interest in the community property as she might otherwise have had except for such Will and her election to take thereunder, all in consideration of the benefits accruing to her under said Will and the agreement on the part of the Executor herein that any Gift Tax arising because of her action evidenced by this instrument will be paid out of the estate disposed of by said Will.

'In Testimony Whereof, witness the signature of the said Pearl S. Taylor this the 18th day of July, 1958.

's/ Pearl S. Taylor

't/ Pearl S. Taylor'

We copy from the stipulation the computation of the taxes due according to the contentions of the parties:

'The Order fixing the amount of the inheritance tax and the notice of assessment thereof treated all of such property, including the one-half community interest of Pearl S. Taylor, as being subject to the State of Texas inheritance tax. The amount of the State of Texas inheritance tax thus computed was $5,137.82, which is a correct computation of the tax when computed including both the separate property of Frank Taylor and the entire community property of Frank Taylor and Pearl S. Taylor.

'The tax thus computed as to Pearl S. Taylor and the other beneficiaries under the will of Frank Taylor are as follows:

                "Beneficiary and   Appraised
                relationship to    actual        Statutory   Taxable                Tax
                decedent           market value  Exemption   cash value   Rate      fixed
                                   ------------             ------------        -------------
                                   Dols. cts.               Dols. cts.           Dols. cts
                Mary T. Hallam
                Sister              23,459.48    10,000.00  13,459.48      3%       403.78
                George Taylor
                Brother             23,459.48    10,000.00  13,459.48      3%       403.78
                Sam L. Taylor
                Brother             23,459.48    10,000.00  13,459.48      3%       403.78
                Mrs. Glenn Humble
                None                35,189.22       500.00  34,689.22     5-8%    2,190.14
                Mrs. R. C. Wilson
                None                11,729.74       500.00  11,229.74     5-6%      578.78
                J. B. Segrest
                None                11,729.74       500.00  11,229.74     5-6%      578.78
                Mrs. May Decker
                None                11,729.74       500.00  11,229.74     5-6%      578.78
                Pearl S. Taylor
                Wife                44,433.77                                   -------------
                                                                                $ 5,137.82
                

'This computation further contained the following statement 'Since Mrs. Taylor did not receive more than her one-half community interest plus the $25,000.00 statutory exemption, she is not subject to the tax.'

'When the State of Texas inheritance tax is computed on the basis of the value of Frank Taylor's separate property and his one-half interest in the community property of Frank Taylor and Pearl S. Taylor, it is $1,444.02.

'The tax thus computed as to Pearl S. Taylor and the other beneficiaries under the will of Frank Taylor is as follows:

                                        Relationship
                                        to decendent
                                        whether minor
                "Name of                or adult, age
                Beneficiary             if life                           Net             Tax
                         and            tenant,        Actual             Taxa-           Clai-
                                                                            ble             med
                Post Office             interest       Market  Statutory
                Address                 received       Value   Exemption  Value   Rate    Due
                -------------------------------------------------------------------------------
                Pearl S. Taylor--Forth Worth,Texas--wife
                 1/2 house                 $ 3,750.00
                 1/2 household               2,380.00
                  furniture, etc
                 $6,000.00 per year
                  times
                 expectancy 4.65125         27,907.50
                                        -------------
                                           $34,037.50   25M    $9,037.50   1%     90.38
                Mary T. Hallam--sister
                 1/3 of 1/2 residue          9,416.05   10M          .00            .00
                George Taylor--brother
                 1/3 of 1/2 residue          9,416.05   10M          .00            .00
                Sam L. Taylor--brother
                 1/3 of 1/2 residue          9,416.05   10M          .00            .00
                Mrs. Glen Humble--no
                  relation
                 1/2 of 1/2                 14,124.07   500    13,624.07  5-6%   722.44
                Mrs. R. C. Wilson--no
                  relation
                 1/6 of 1/2 residue          4,708.02   500     4,208.02   5%    210.40
                Mrs. May Decker--no
                  relation
                 1/6 of 1/2 residue          4,708.02   500     4,208.02   5%    210.40
                Mrs. J. B. Segrest--no
                  relation
                 1/6 of 1/2 residue          4,708.02   500     4,208.02   5%    210.40"
                

Due to an error in calculations, appellee concedes that the tax due is $1,444.02 and that the overpayment was $3,693.80; and this is the amount awarded in the judgment.

'It is the contention of appellee that the one-half community property interest of Pearl S. Taylor is not property passing 'by the will', is not property categorized in Article 7117, and should not have been included in computing the inheritance on the Frank Taylor Estate.'

Appellants state that 'The sole issue is whether all the community or only decedent's one half thereof 'passed' under his will within contemplation of Art. 7117.' (14.01).

We agree with appellee.

Art. 14.01, supra (7117) provides:

'All property within the jurisdiction of this State, real or personal, corporate or incorporate, and any interest therein, including property passing under a general power of appointment exercised by the decedent by will, including the proceeds of life insurance to the extent of the amount receivable by the executor or administrator as insurance under policies taken out by the decedent upon his own life, and to the extent of the excess over Forty Thousand ($40,000) Dollas of the amount receivable by all other beneficiaries as insurance under policies taken out by the decedent upon his own life, whether belonging to inhabitants of this State or to persons who are not inhabitants, regardless of whether such property is located within or without this State, which shall pass absolutely or in trust by will or by the laws of descent or distribution of this or any other state, or by deed, grant, sale, or gift made or intended to take...