Hume's Estate, In re
| Decision Date | 13 July 1954 |
| Docket Number | No. 9364,9364 |
| Citation | 272 P.2d 999,128 Mont. 223 |
| Parties | In re HUME'S ESTATE. FURNESS v. LAUGHLIN. |
| Court | Montana Supreme Court |
Daniel G. Kelly and P. F. Leonard, Miles City, Ralph J. Anderson, Helena, for appellant, Thomas Furness.
Hugh J. Lemire, Miles City, for objector, Walton C. Baker, et al.
Leavitt & Lucas and W. B. Leavitt, Miles City, for respondent and executor.
Two appeals have been here consolidated. They arise from two orders made by the Honorable S. D. McKinnon, district judge, in the estate of John B. L. Hume, deceased.
John B. L. Hume, a single man, died on March 21, 1952, in Miles City, Custer County, Montana, leaving an estate valued at approximately $446,959.92, which he disposed of by will.
The will, in part, provided: 'Fourth: I give * * * to Thomas Furness the sum of $10,000.00 net and clear of any charge whatsoever, it being my direction that any inheritance tax that may be chargeable on this bequest shall be paid by my executor as an administrative expense of the estate.
'Fifth: I give * * * to my old friend, John C. Laughlin and to his wife, Elizabeth Laughlin, * * * the sum of $10,000.00 each * * * both of these bequests shall be net and clear of any charge, it being my direction that any inheritance tax that may be chargeable to either or both of these bequests shall be paid by my executor as an administrative expense of the estate.'
Of some thirty-seven specific gifts and bequests, the only ones in which the testator specifically declared that any inheritance tax that may be chargeable thereon 'shall be paid by my executor as an administrative expense of the estate,' are the three as set out above, whereby Thomas Furness, John C. Laughlin an Elizabeth Laughlin were each given $10,000.
The will also provided: 'Thirty-fourth: That after the payment of expenses of administration, inheritance taxes and all other legal charges against my estate if there is not sufficient money and property remaining with which to pay all of the bequests and legacies herein provided for, then such bequests and legacies shall be paid in full in the order that they are set forth in this Will commencing with that [the first] contained in paragraph Third hereof and continuing in the order given until all my property is exhausted, it being my will and direction that there shall be no apportionment between the devisees.'
The intention of a testator is to be carried out as far as possible. R.C.M.1947, Sec. 91-201. See In re McLure's Estate, 63 Mont. 536, 208 P. 900; In re Murphy's Estate, 99 Mont. 114, 43 P.2d 233; In re Hauge's Estate, 92 Mont. 36, 9 P.2d 1065; In re Spriggs' Estate, 70 Mont. 272, 225 P. 617.
Such intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made, exclusive of the testator's oral declarations. R.C.M.1947, Sec. 91-202. In determining the intention of the testator the words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be collected, and that other can be ascertained. R.C.M.1947, Sec. 91-208. See In re Estate of Hash, 64 Mont. 118, 208 P. 605. 'All the parts of a will are to be construed in relation to each other * * *.' R.C.M.1947, Sec. 91-205.
Apparently the decedent had knowledge that an inheritance tax is collectible from the share of the person who receives the property on which the tax is computed, and, not wanting the Furness and Laughlin gifts to be lessened by the deduction of the amount of such tax thereon, specifically provided in such bequests that the inheritance tax on such gifts 'shall be paid by my executor as an administrative expense of the estate.' In no other bequest did he use such words or their equivalent.
'All taxes imposed by this act [inheritance tax] shall be due and payable at the time of the death of the decedent, * * * and the person to whom the property is transferred and the * * * executors * * * shall be personally liable for such tax until its payment', R.C.M.1947, Sec. 91-4415, and the executor 'shall not deliver or be compelled to deliver any specific legacy on property subject to tax under this law, to any person until he shall have collected the tax thereon. * * *' R.C.M.1947, Sec. 91-4417. 'Under statutes similar to ours, the universal holding has been that each specific share, interest or legacy passing upon the death of a decedent must bear its proportionate part of the inheritance tax * * *.' In re Powell's Estate, 110 Mont. 213, 101 P.2d 54, 57, 128 A.L.R. 116.
It is the contention of the appealing devisees, in one appeal, that the wording of paragraph 'Thirty-fourth' of the will entitled them to take their bequests as though the testator had directed 'that any inheritance tax that may be chargeable on this bequest shall be paid by my executor as an administrative expense of the estate.'
With this contention the district court did not agree, nor do we.
If the decedent had intended that his estate should pay the inheritance taxes due on the respective shares of the appealing devisees, he could have so directed, in clear, certain and concise terms, as he did when he declared the inheritance taxes on the ten thousand dollar bequests to Furness and the Laughlins should be paid out of his estate. The fact he did not so declare convinces us he had no such intention.
To hold that paragraph 'Thirty-fourth' of the will, hereinbefore set forth, shows that the testator intended that inheritance taxes due on the bequests of devisees, other than Furness and the Laughlins, should be paid by the estate, requires words be read into such paragraph which the testator did not, and did not intend to, place in such paragraph.
Such paragraph is clear and needs no interpretation, and when considered together with paragraphs 'Fourth' and 'Fifth,' also hereinbefore set forth, cannot be held to show the intention of the testator was that the estate should pay the inheritance taxes due on the bequests of the appealing devisees or on any other bequest than the designated ten thousand dollar bequests of Furness and the Laughlins.
The question raised by the second appeal arises out of paragraph three of the will which, in part, provides: 'I give and bequeath to Thomas Furness * * * all my real property * * * said bequest to and it does hereby include my entire ranch holdings, both real and personal, as the same exists at the time of my death * * *.'
Hume, prior to his...
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