Norton v. Jones

• Decision Date: 26 March 1948
• Docket Number: No. 13873.,13873.
• Citation: 210 S.W.2d 820
• Parties: NORTON et al. v. JONES et al.
• Court: Texas Court of Appeals

210 S.W.2d 820

NORTON et al. v. JONES et al.

No. 13873.

Court of Civil Appeals of Texas. Dallas.

March 26, 1948.

Rehearing Denied April 30, 1948.

Appeal from District Court, Hunt County; Newman Phillips, Judge.

Action by Mrs. Myrtle Jones and another against J. A. Norton and others, executors, for construction of will. Judgment for plaintiffs, and defendants appeal.

Reversed and rendered.

Allen Clark and L. L. Bowman, Jr., both of Greenville, for appellants.

G. C. Harris, of Greenville, for appellees.

YOUNG, Justice.

Suit below was to construe the will of Dr. E. P. Becton, deceased, certain devisees thereunder contending that from terms of the will inheritance taxes due the State of Texas were not a charge against respective devises but were included in the words "all taxes" to be paid by the executors from corpus of the estate. Following an adverse judgment, the independent executors only have appealed.

Dr. Becton, of Greenville, Hunt County, died testate August 7, 1946, leaving property valued at more than $100,000. His will, dated November 9, 1942, and codicil (March 1946) left cash bequests in varying amounts to nieces and nephew, other items of money and property to named friends, hospital nurses and employees; the residue, after payment of legacies and charges, going to Miss Florence B. Simpson. After probate of will and filing of inventory and appraisement, the executors duly filed in County Court the Inheritance Tax report or affidavit of appraisal, on which a hearing was had before the county judge who "ordered that the administrator (executor) be and he is hereby authorized and directed to pay and deliver forthwith to the Comptroller of Public Accounts the sum of $5989.23 as and for inheritance tax to which said heirs, legatees or devisees are liable and charge the same to the respective shares as taxed herein."

Then followed the present action by appellees, Myrtle Jones and Mrs. A. E. Barrett (beneficiaries in money and property valued at $13,000 and $3,000 respectively), making request of the district court to construe the will in question, in form of declaratory judgment, viz: "Was it the intention of the testator, E. P. Becton, that the bequests and devises made to these plaintiffs be free from payment of inheritance taxes?"

By paragraph One of the will, the testator had directed that all just debts and funeral expenses be promptly paid "out of my estate." However both parties herein rely on paragraph Five of the will for answer to the foregoing question of law; the court below ruling that the particular legacies were payable to plaintiffs without diminution on account of State Inheritance Taxes; appellants, on the other hand, contending that the question should be given a negative answer. Paragraph Five reads: "Out of the residue of my estate, remaining on hand not disposed of under the preceding paragraphs of this will, I direct my executors, if need be in order to pay any of the beneficiaries the amount of special bequests hereinbefore set forth (in the event there shall not be sufficient cash on hand with which to pay such bequests) to pay such special legacies, all taxes, state, National, all debts, just and provable, against my estate, and my executors shall have the power and authority to make sales out of such residue in order to raise sufficient funds with which to pay such bequests, taxes, debts, then all of the residue of my estate then left on hand undisposed of under the preceding paragraphs of this will, I give, will and bequeath unto Miss Florence B. Simpson, such residue of my estate, including Bank Stock, farm lands, consisting of 206 acres of land situated in Hunt County, Texas, located near the U. S. Experiment Station and being the same lands purchased from Bowman and Sockwell; also all government bonds and cash on hand remaining belonging to my estate." It will be observed that Dr. Becton's estate in the main was given to nonrelatives and the contention here made is limited to such group.

Under Art. 7117 et seq. the tax therein contemplated (inheritance) is imposed on the right to receive or succeed to the possession or enjoyment of property; the legatee or beneficiary simply receiving his share or interest burdened with the tax. State v. Hogg, 123 Tex. 568, 72 S.W.2d 593; Bethea v. Sheppard, Tex.Civ.App., 143 S.W. 2d 997, writ ref. "Under inheritance tax laws, the tax is not one of the expenses of administration, or a charge upon the general...