In re Dean's Estate

• Decision Date: 07 December 1942
• Docket Number: 38142,38225
• Parties: In re Estate of William B. Dean, deceased. Anna S. Dean, Appellant, v. Estate of William B. Dean, deceased. Anna S. Dean, individually and Anna S. Dean and Fred L. English, as Executors of the Estate of William B. Dean, deceased, Appellants, v. State of Missouri, Exceptions to Report of Appraiser Assessing Inheritance Taxes
• Court: Missouri Supreme Court

166 S.W.2d 529

350 Mo. 494

In re Estate of William B. Dean, deceased. Anna S. Dean, Appellant, v. Estate of William B. Dean, deceased. Anna S. Dean, individually and Anna S. Dean and Fred L. English, as Executors of the Estate of William B. Dean, deceased, Appellants, v. State of Missouri, Exceptions to Report of Appraiser Assessing Inheritance Taxes

Nos. 38142, 38225

Supreme Court of Missouri

December 7, 1942

Appeal from Circuit Court of St. Louis County; Hon. John J Wolfe, Judge.

Case no. 38225 reversed and remanded (with directions). Case no. 38142 transferred to St. Louis Court of Appeals.

Williams Nelson & English, R. F. O'Bryen and Walter Wehrle for appellants.

(1) Points and Authorities -- Cause No. 38142. Where a husband dies without children his widow is, under Section 325, R. S Mo. 1939, entitled to receive one-half the net value of the personal estate belonging to the husband at the time of his death, and where the estate consists of personal property with no real estate it is the duty of the court to award to the widow upon application therefor this statutory share of the personalty without any election or renunciation of any will; because: (a) the husband could not by making a will interfere with or deprive her of this statutory share; (b) the statute giving her the right says that it is absolute (c) the only exceptions to the rule being the equitable rule of estoppel that where the widow by claiming statutory rights and taking the balance under the will would receive more than she would have received had there been no will and the rights of other beneficiaries would be affected adversely. R. S. 1939, sec. 325; Tipton v. McClary, 227 Mo.App. 460, 54 S.W.2d 490; Brown v. Estate of Tucker, 135 Mo.App. 598, 117 S.W. 96; Nies v. Stone, 232 Mo.App. 1226, 117 S.W.2d 407; Klocke v. Klocke, 276 Mo. 572, 208 S.W. 825; Egger v. Egger, 225 Mo. 116, 123 S.W. 928; Sparks v. Dorrell, 151 Mo.App. 173, 131 S.W. 761; Kerwin v. Kerwin, 204 S.W. 922, 204 S.W. 925; Newton v. Newton, 162 Mo. 173, 61 S.W. 881; 69 C. J. 1095, sec. 2339; Bryant v. McCune, 49 Mo. 546; Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135; Burgess v. Bowles, 99 Mo. 543. (2) Points and Authorities -- Cause No. 38225. In assessing the Missouri inheritance tax pursuant to Chapter 1, Article XXI, Revised Statutes of Missouri 1939, against the share of the surviving widow of a deceased childless husband, the widow is entitled by Section 576, R. S. Mo. 1939, to an exemption equal to $ 20,000 plus her marital right of one-half the net value of the estate. Secs. 571, 576, R. S. 1939; In re Rogers' Estate, 250 S.W. 576; In re Bernays' Estate, 126 S.W.2d 209, 344 Mo. 135, distinguished; Laws 1917, p. 117, sec. 4; Laws 1921 (Ex. Sess.), p. 28. (2) Long continued construction of the inheritance tax statute by the Attorneys General and the tax authorities is entitled to weight in the construction of the statute by the courts. In re Bernays' Estate, 344 Mo. 135, 126 S.W.2d 209. (4) The widow of a deceased childless husband is entitled as a marital right to one-half the clear net market value of his estate without any election or the renunciation of any will unless to take both her marital right and to take under the will would give her more than she would receive had she renounced the will. (See Points and Authorities under Cause No. 38142, which for brevity are not here repeated but are incorporated by reference.)

Roy McKittrick, Attorney General, Russell C. Stone and William C. Connett, IV, Assistant Attorneys General, for respondent.

(1) Where a husband by last will leaves an interest to his widow which clearly shows an intention to provide for his widow by will, in lieu of widow's statutory dower rights, the widow must either accept the will or reject the same; she may not claim both. Secs. 325, 571, R. S. 1939; Egger v. Egger, 225 Mo. 116, 123 S.W. 928; Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135; Bryant v. Christian, 58 Mo. 98; Davidson v. Davis, 86 Mo. 440; Stoepler v. Silberberg, 220 Mo. 258, 119 S.W. 418; Wood v. Conqueror Trust Co., 265 Mo. 511, 178 S.W. 201; Sparks v. Dorrell, 151 Mo.App. 173, 131 S.W. 761; Burgess v. Bowles, 99 Mo. 543, 12 S.W. 341; Nies v. Stone, 232 Mo.App. 1226, 117 S.W.2d 407; 69 C. J. 1095; In re Howe's Estate, 163 A. 235, 112 N.J.Eq. 217. (2) If the widow takes practically the whole estate by will, the property she takes comes within the provisions of the Inheritance Tax Act. Secs. 571, 573, R. S. 1939; Chap. I, Art. 21, R. S. 1939; In re Rosing's Estate, 337 Mo. 544, 85 S.W.2d 495; In re Bernay's Estate, 344 Mo. 135, 126 S.W.2d 209. (3) If the widow takes partly under the will, and partly by way of her elective dower, the whole of the property she receives from her husband's estate, less her exemption, comes within the purview of our Inheritance Tax Act. Chap. I, Art. 21, R. S. 1939; Secs. 323, 325, 571, 573, 576, R. S. 1939; In re Roger's Estate, 250 S.W. 576; Secs. 106-111, R. S. 1939; State ex rel. Pettit v. Probate Court of Hennepin County, 163 N.W. 285, 137 Minn. 238; Billings v. The People, 189 Ill. 472, 59 N.E. 798; In re Estate of Albert Lackman, 26 O. N. P. R. (N. S.) 387; In re Kennedy's Estate, 108 P. 280, 157 Cal. 517; In re Bernays' Estate, 344 Mo. 135, 126 S.W.2d 209; In re Rosing's Estate, 337 Mo. 544, 85 S.W.2d 495; People of the State of Illinois v. Moir, 207 Ill. 180, 69 N.E. 905; People v. Moses, 363 Ill. 423, 2 N.E. 724; In re Brockett's Estate, 111 N.J.Eq. 163, 162 A. 150. (4) The Legislature, in enacting Section 576, R. S. Mo. 1939, did not intend the phrase "marital right" to mean dower or elective dower, but rather meant the marital right of support and allowances as provided by Sections 106, 107, 109, R. S. Mo. 1939. Secs. 325, 571, 576, R. S. 1939; Cyclopedic Law Dictionary (Third Ed. 1940), p. 699; 2 Bouvier's Law Dictionary (1914), pp. 2091, 2102, 1465-1476; Wharton's Law Lexicon (14th Ed.), 1938; Ballantine's Law Dictionary (1930), pp. 263, 795; St. Louis Y. M. C. A. v. Gehner, 47 S.W.2d 776, 329 Mo. 1007, 81 A. L. R. 1449; Secs. 106-109, R. S. 1939; Williams v. Schneider, 1 S.W.2d 230; State ex rel. Pettit v. Probate Court of Hennepin County, 163 N.W. 285, 137 Minn. 238.

Ellison, C. J. All concur except Hays and Gantt, JJ., absent.

OPINION

ELLISON

These two cases have been consolidated for submission in this court, on appeal from the circuit court of St. Louis county. Both originated in the probate court. In cause No. 38,142 the question for decision is whether the appellant Anna S. Dean, widow of the deceased testator, William B. Dean, is entitled to an order setting over one-half of his net estate to her as her absolute property under Sec. 325, R. S. 1939, Mo. R. S. A., sec. 325, independent of his will. The agreed value of the whole net estate as of the date of trial was $ 354,780.54; and the value of the half interest claimed, $ 177,290.27. The estate consisted entirely of personalty. The testator died a resident of this State and left no children or their descendants, and no father, mother, brother or sister, or their descendants. The will bequeathed the entire residuary estate to the appellant widow, this being the whole net estate except as reduced by $ 11,000 in specific bequests. She did not file a written election to take the half interest, either under Secs. 327 and 329, R. S. 1939, Mo. R. S. A., secs. 327, 329, or otherwise. Neither did she renounce the will under Sec. 333, R. S. 1939, Mo. R. S. A., sec. 333, or otherwise.

She seeks thus to claim one-half of the net estate independent of the will, although the will gives her far more, mainly because of the asserted effect it will have in reducing her state inheritance tax. She contends she may take that interest under the statute, and the remainder of the residuary estate under the will; and that the statutory one-half interest is exempt from inheritance tax, under Sec. 576, R. S. 1939, Mo. R. S. A., sec. 576. The State contends the widow cannot take the residuary estate partly under the statute and partly under the will; that the will does not sanction it; that if she desires to take pursuant to the statute she should have renounced the will. The probate and circuit courts upheld the State's contentions on these points. The widow appeals, but contends a decision against her in this cause, No. 38,142, will not defeat her claim in the other case.

We think we have no jurisdiction of this appeal. The amount claimed is not in dispute. The only question is, in what right the widow shall receive it -- under Sec. 325 or under the will. On an analogous question see Koch v. Meacham (Mo. Div. 2), 116 S.W.2d 16. Neither does the fact that the two cases have been consolidated for submission here make any difference. They were tried separately below and there were separate judgments. Bradley v. Milwaukee Mechanics Ins. Co., 147 Mo. 634, 49 S.W. 867. But since the questions in this first case inhere in the second, and both have been briefed together, we shall decide them in our consideration of the latter.

The second cause, No. 38,225, involves the inheritance tax itself. The tax was assessed against the widow on the whole net estate, as of the value of $ 392,808.85 at the date of the death of the testator, deducting only the $ 11,000 in specific bequests and the $ 20,000 exemption admittedly allowed a widow by Sec. 576, supra. She was denied the further exemption claimed by her under that same statute, on one-half the net estate allowed her by Sec. 325. The State contends that if a widow takes practically the whole estate of her husband by will, or even if she takes partly under the will and partly under Sec. 325, supra, in either event the property received, less exemptions, is subject to the inheritance tax. And in this connection the State further...