First Nat. Bank of Guthrie v. State (In re Inheritance Tax On Dale's Estate)

• Decision Date: 23 January 1934
• Docket Number: Case Number: 22732,Case Number: 22731
• Citation: 29 P.2d 88,1934 OK 31,167 Okla. 240
• Parties: In re INHERITANCE TAX ON DALE'S ESTATE (two cases). FIRST NAT. BANK OF GUTHRIE et al. v. STATE et al.
• Court: Oklahoma Supreme Court

1934 OK 31

29 P.2d 88

167 Okla. 240

In re INHERITANCE TAX ON DALE'S ESTATE (two cases).

Case Number: 22731

Case Number: 22732

Supreme Court of Oklahoma

Decided: January 23, 1934

Syllabus

¶0 1. Wills--Construction--Determination of Nature of Estate Vested.

In determining the nature of an estate vested by the terms of a will, the intention of the testator is to be ascertained from the words of the will, taking into view the circumstances under which it was made, and all parts of the will are to be construed in relation to each other so as to form one consistent whole, if possible, and the words of a will are to receive an interpretation which will give to every expression some effect rather than one which will render any of the expressions inoperative.

2. Same--Devise Construed to Pass Life Estate Only.

Where a devise or bequest is in general terms only, expressing neither fee nor life estate, with a subsequent limitation over of what remains at the taker's death, if there is also given to the taker an express or implied power of disposition which is not absolute, or is limited or restricted in its exercise, the devise is construed to pass a life estate only.

3. Same--Joint Will of Husband and Wife Construed--Survivor Held to Take Life Estate With Absolute Power of Disposal by Gift, Sale, or Conveyance, and not Fee-Simple Estate.

The testator and testatrix, husband and wife, executed a joint will devising their entire property to the survivor with absolute power of disposition by gift, sale, or conveyance, and further providing for the disposition of the estate remaining at the death of the survivor to certain other devisees. The terms of the will and the conditions under which it was executed indicated an intention on the part of the testator and testatrix to make a final disposition of their estate, and further indicated an intention that said survivor should not have the power to dispose of the property by will; held, that the survivor took a life estate with absolute power of disposal by gift, sale, or conveyance and not a fee-simple estate.

Nos. 22731, 22732.

Appeal from District Court, Logan County; Freeman E. Miller, Judge.

In the matter of computation of inheritage tax against estates of Frank Dale and Martha W. Dale, deceased. From judgment of county court, the State and Frank Carter, State Auditor, appealed to district court, where judgment was in their favor, and the First National Bank of Guthrie, Trust Department, and Harry F. Brown, executors, bring error. Reversed and remanded, with directions.

Harry F. Brown for plaintiffs in error.

J. Berry King, Atty. Gen., and F. M. Dudley, Asst. Atty. Gen.

OSBORN, J.

¶1 Causes Nos. 22731 and 22732 present but one issue for determination, and have been consolidated by appropriate order.

¶2 Frank Dale and Martha W. Dale, husband and wife, executed a joint will dated August 6, 1929. By the terms of the will each devised to the other all property, real and personal, of which each devisor died seized and possessed, and further provided that upon the death of the survivor the property should pass to certain other devisees.

¶3 Frank Dale and Martha W. Dale, hus-Martha W. Dale died on June 25, 1930. At the time of the death of Mrs. Dale, the estate of Frank Dale had not been inventoried and no part of the estate had been distributed.

¶4 A hearing was had before the county court on the matter of the computation of inheritance tax against the estate, and the county court ordered that the tax be computed on the estate of Frank Dale only once, and after the death of Mrs. Dale only upon her independent estate, making a total inheritance tax of $ 6,401.04. The state appealed to the district court, where a hearing was had and the judgment of the county court reversed and an order made that the tax be computed twice, that is, once on the entire estate after the death of Frank Dale, and again on the entire estate after the death of Martha W. Dale, which with her independent estate amounted to a total tax of $ 12,461.62, or a difference in the two theories of computation of $ 6,050.58. From said judgment, the executors have appealed. The executors will be referred to as plaintiffs, and the state and State Auditor as defendants.

¶5 There is no controversy in regard to the facts. The issue is one of law and requires the determination of the nature of the estate vested in Martha W. Dale by the terms of the will. The material portions of the will are set out as follows:

"The makers of this will and testament were married June 10th, 1885, and at the time of such marriage, neither of us possessed property of any considerable value, either real or personal. Since our marriage, by our joint efforts, we have accumulated real and personal property and money and have both arrived at that age in life when we deem it advisable to make this joint will providing for the distribution of our estate in such manner as we deem just and equitable to those who should be selected as the proper beneficiaries of the proceeds to be derived from the sale and disposal of our properties after we have died.

"With the idea we have in mind of carrying out this purpose, I, Frank Dale, do hereby give and bequeath to my beloved wife, Martha W. Dale, all my property, real and personal and mixed wheresoever situated, to become hers absolutely upon my death, subject only to the provisions hereinafter set forth, and I, Martha W. Dale, hereby give and bequeath to my beloved husband, Frank Dale, all my property, both real and personal wheresoever the same may be situated, to become his absolutely upon my death, subject only to the provisions hereinafter set forth.

"Upon the death of either of us, the survivor shall take and become possessed absolutely of the entire estate herein designated and may use and dispose of the same in such manner as he or she may desire, may make gifts of money or property, or purchase other property as he or she may desire; but upon the death of such survivor the property of the estate still remaining of which the survivor died seized, shall be divided and descend to the following named parties, who are hereby designated to receive the same. * * *"

¶6 Following this provision 36 devisees are designated, divided in two separate groups, one group headed "Heirs of Frank Dale," the other, "Heirs of Martha W. Dale."

¶7 Plaintiffs contend that the will, as the will of Frank Dale, bequeathed to Martha W. Dale a life estate in his property, with power of sale or disposal, with a vested remainder over to the 36 devisees named in the will, and that it is subject to inheritance tax but once.

¶8 Defendant contends that the will bequeathed to Martha W. Dale an absolute title in fee simple without any remainder over, and that all of Frank Dale's property should be first assessed to Martha W. Dale, and upon her death, which occurred four and one-half months after that of Frank Dale, it should be assessed again, jointly with Martha W. Dale's independent estate to the other 36 devisees named in the will.

¶9 Attention is directed to the following statutory provisions: Section 11264 C. O. S. 1921, sec. 1579, O. S. 1931, which provides that a will is to be construed according to the intention of the testator, and where his intention cannot have effect to its full extent, it must have effect as far as possible. Section 11265, C. O. S. 1921, sec. 1580, O. S. 1931, which provides that the intention is to be ascertained from the words of the will taking into view the circumstances under which it was made. Section 11268, C. O. S. 1921, sec. 1583, O. S, 1931, which provides that all parts of a will are to be construed in relation to each other and so as to form one consistent whole, if possible; and section 11272, C. O. S. 1921, sec. 1587, O. S. 1931, which provides that the words of a will are to receive an interpretation which will give to every expression some effect rather than one which shall render any of the expressions inoperative.

¶10 The construction of wills containing provisions similar to those in the will involved herein has produced a great mass of litigation in the various jurisdictions. Although apparently conflicting, when the specific provisions in the various wills are analyzed, and appropriate regard shown to the intention of the testator, based on surrounding circumstances, there is but little lack of harmony apparent in the adjudicated cases.

¶11 The precise question involved herein has not been heretofore presented to this court. It may be helpful, however, to examine a few of our previous decisions in connection with questions of a similar nature.

¶12 The case of Porter v. Porter, 97 Okla. 231, 222 P. 971, involved the construction of the will of John W. Porter, which in part provided:

"I give, devise and bequeath one-third of all my estate whatsoever and wheresoever, both real and personal, to which I may be entitled or which I may have power to dispose of at my death to my beloved wife, Eda Porter, absolutely if she be living at the time of my death.

"I give, devise and bequeath all the rest and residue of my property to my wife Eda Porter, to be and remain hers during her widowhood. In the event that my wife should marry again I direct that all the said property above bequeathed to her, except the one-third, shall be given to my said children. * * *"

¶13 In determining the nature of the estate vested in the widow, the court said:

"Where a testator, by apt and appropriate words, creates a life estate in his widow, and subsequently by apt words creates a contingent remainder, in his children, such remainder constitutes a conditional limitation on such life estate, and not a condition subsequent.

"In such case, where the life tenant is not given power of disposition, but the executrix of the will is given power to sell, such power of sale in the executrix is not referable or incidental to the life estate created so as to enlarge the same to a qualified or determinable fee and thus defeat

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