Griffin's Estate, In re, 3987

• Decision Date: 06 March 1964
• Docket Number: No. 3987,3987
• Citation: Griffin's Estate, In re, 164 So.2d 883 (Fla. App. 1964)
• Parties: , 64-1 USTC P 9436 In re ESTATE of Berlin GRIFFIN, Deceased. UNITED STATES of America, Appellant, v. Gladys H. GRIFFIN, individually, and Gladys H. Griffin and Karl D. Griffin, as executors of the Estate of Berlin Griffin, deceased, Appellees.
• Court: Florida District Court of Appeals

Page 883

164 So.2d 883

13 A.F.T.R.2d 1132, 64-1 USTC P 9436

In re ESTATE of Berlin GRIFFIN, Deceased UNITED STATES of America, Appellant, v. Gladys H. GRIFFIN, individually, and Gladys H. Griffin and Karl D. Griffin, as executors of the Estate of Berlin Griffin, deceased, Appellees.

No. 3987.

District Court of Appeal of Florida, Second District.

March 6, 1964.

Rehearing Denied April 7, 1964.

Harold C. Wilkenfeld, Dept. of Justice, Washington, D. C., for appellant.

John R. Williams, of Blank & Davis, and Coleman & Cook, West Palm Beach, for appellee executors of the estate.

Elwyn L. Middleton, of Burns, Middleton, Rogers & Farrell, Palm Beach, for Gladys H. Griffin, individually.

ALLEN, Acting Chief Judge.

This appeal is from an order of the County Judge's Court of Palm Beach County, in probate.

The appellant, United States of America, appeals that part of an order awarding Gladys H. Griffin, widow of the deceased, dower in the personal property of her deceased husband free and clear of her husband's debts.

Berlin Griffin died testate in West Palm Beach on March 2, 1961. Prior to his death, he was indebted to the Federal Government for unpaid taxes for the years 1943 and 1944 in a sum approximating $584,241. The tax liabilities were assessed against him on October 2, 1959, and notice of the tax lien was filed of record in Palm Beach County, Florida, on January 5, 1960. Gladys H. Griffin, his widow, waived the provisions of the Will and petitioned the probate court for assignment of dower.

Fla.Stat. § 731.34 (1961), F.S.A. provides:

'Whenever the widow of any decedent shall not be satisfied with the portion of the estate of her husband to which she is entitled under the law of descent and distribution or under the will of her husband, or both, she may elect in the manner provided by law to take dower, which dower shall be one third part in fee simple of the real property which was owned by her husband at the time of his death or which he had before conveyed, whereof she had not relinquished her right of dower as provided by law, and one third part absolutely of the personal property owned by her husband at the time of his death, and in all cases the widow's dower shall be free from liability for all debts of the decedent and all costs, charges and expenses of administration; provided, however, that nothing herein contained shall be construed as impairing the validity of the lien of any duly recorded mortgage or the lien of any person in possession of personal property. * * *'

Fla.Stat. § 733.09, F.S.A. makes it the duty of the personal representatives to lay off and assign dower immediately after the widow has exercised her election to take dower. From an order in these proceedings, this appeal ensued.

The point on appeal is stated as follows:

'Is a widow's right to dower in her deceased husband's personal property subject to a federal income tax lien filed against decedent prior to his death?'

The appellant concedes that the lower court was correct in assigning the widow a dower interest in the real property, free from the debts of the decedent.

The appellant contends that the recorded tax lien should have been accorded priority over the widow's dower right in the personal property of the deceased because the tax lien arose on the property at the time that the assessment was made. They further argue that dower right in personalty can be defeated by the husband during his lifetime by inter vivos gift, as opposed to those inchoate dower rights, accorded to the wife as to any real property owned by the husband at his death or which had been owned by him during his lifetime and transferred without the signature of the wife.

In United States v. Weissman, Fla.App.1961, 135 So.2d 235, this court had occasion to hold that a federal income tax lien had priority over a landlord's lien against a tenant. The circuit court had entered a final decree holding that the landlord's lien was superior, except as to the one federal lien which had been filed prior to the lease. The result of this court's holding was that all three federal tax liens had priority over the landlord's lien for rent due, notwithstanding that only one notice of tax lien had been recorded before the date of the lease, since all assessment dates by the government were prior to the first default in the payment of rent.

In the Weissman case, Judge Smith, in writing the opinion of this court, stated:

'The liens of the federal government arose under the Internal Revenue Code of 1954, which provides, insofar as material to the question here, in Section 6321, 26 U.S.C.A. § 6321, that, if any person liable to pay any tax neglects to pay the same, after demand, the amount shall be a lien in favor of the United States upon all property belonging to such person. Section 6322 provides that the lien imposed shall arise at the time the assessment is made and shall continue until the amount is satisfied. Section 6323(a) provides that the lien so imposed shall not be valid as against any mortgagee, pledgee, purchaser, or judgment creditor until notice thereof has been filed (in this instance in the Office of the Clerk of the Circuit Court of Palm Beach County, Florida.)

'* * * The lien of the United States for unpaid taxes, while a general lien in the sense that it attaches to all of the property of the delinquent taxpayer, nevertheless is a perfected lien at the time it arises, and where the federal tax lien and the competing statutory lien are of equal dignity, that is, where the competing statutory lien is a perfected lien in the sense that there is nothing more to be done to have a choate lien, when the identity of the lienor, the property subject to the lien, and the amount of the lien are established, priority is to be determined on the principle that, 'the first in time is the first in right.' United States v. City of New Britain, 347 U.S. 81, 74 S.Ct. 367, 371, 98 L.Ed. 520. We must, therefore, look to the Federal statutes and decisions to determine this issue.

* * *

* * *

'* * * The Federal decisions further hold that a landlord's statutory lien for rent is inchoate and unperfected under the circumstances here at the time the federal tax liens arose, and the landlord's lien was not entitled to priority under the doctrine of first in time is first in right or under any doctrine of relation back. United States v. New Britain, supra, and United States v. Security Trust & Savings Bank, supra [340 U.S. 47, 71 S.Ct. 111, 95 L.Ed. 53].'

The United States Court of Appeals for the Ninth Circuit, in the case of Hoare v. United States of America, 294 F.2d 823 (1961), held that the holder of a chattel mortgage given by a tax debtor of the United States as security for the performance of a lease had priority by virtue of the protection provided by Section 6323(a), to the extent only of the arrearages existing when the tax lien attached.

A study of the various Federal cases shows that property interest or liens competing with the Federal tax liens, to have priority, must not be inchoate.

This court, in United States v. First Federal Savings & Loan Ass'n, Fla.App.1963, 155 So.2d 192, had a question involving the priority between the allowance of attorney's fees payable to the mortgagee, and a federal tax lien. The mortgage involved provided for the allowance of attorney's fees and there was no question but that the mortgage itself, accrued interest, etc., had priority under the federal statutes over the perfected federal tax lien, but attorney's fees were not definite, not choate, at the time the federal tax liens were assessed and perfected. In the opinion of the court, it was stated:

'In connection with an...