Sheard's Estate v. Pemberton

• Court: Washington Supreme Court
• Writing for the Court: MITCHELL, Justice.
• Citation: Sheard's Estate v. Pemberton, 181 Wash. 62, 42 P.2d 34 (Wash. 1935)
• Decision Date: 07 March 1935
• Docket Number: 25082.
• Parties: SHEARD'S ESTATE v. PEMBERTON, Sup'r of Inheritance Tax, etc., Division.

42 P.2d 34

181 Wash. 62

SHEARD'S ESTATE v. PEMBERTON, Sup'r of Inheritance Tax, etc., Division.

No. 25082.

Supreme Court of Washington

March 7, 1935

Department 2.

Appeal from Superior Court, Pierce County; F. G. Remann, Judge.

Proceeding in the matter of the estate of William F. Sheard, deceased on petition of the Bank of California, Tacoma Branch, as executor of the estate, opposed by the State of Washington upon the relation of William H. Pemberton, Supervisor of the Inheritance Tax and Escheat Division of the State of Washington. From a judgment in favor of the executor, the Supervisor appeals.

Affirmed.

Neal &amp Bonneville, of Tacoma, for respondent.

MITCHELL Justice.

William F. Sheard died testate February 24, 1932, a resident of, and leaving estate in, Pierce county, Wash. His will, dated August 30, 1930, was admitted to probate February 29, 1932. A portion of his estate was devised to Caroline Sheard, wife of Harold Prescott Sheard, a son of the testator. To Harold Prescott Sheard and Caroline Sheard a son, William Franklin Sheard (sometimes spoken of as William Sheard), was born six years prior to the death of the testator, the boy's grandfather. The boy survived his grandfather. Between the date of the execution of the will and the date of the death of the testator, Carolina Sheard and Harold Prescott Sheard were divorced by final decree entered on July 23, 1931. Thereafter, date not shown, she married one Cutting.

In settling the inheritance tax on that portion of the estate of William F. Sheard passing to Caroline Cutting, formerly Sheard, the executor contended that the tax should be fixed at the statutory rate upon an inheritance going to a daughter-in-law, while the supervisor of the inheritance tax and escheat division of the state contended that it should be reckoned at the higher statutory rate provided for an inheritance going to a stranger to the blood. The superior court entered judgment in favor of the executor. The supervisor has appealed.

The judgment is right if at the time of the death of the testator the devisee was his daughter-in-law.

In the absence of some controlling statute to the contrary, it is the law that death or divorce does not sever the tie of affinity between one spouse and the blood relatives of the other spouse, if there be issue of the marriage surviving. Appellant admits this rule, as we understand, but says that our statute changes the rule. The statute, Rem. Rev. Stat. § 11202, which fixes the rates for inheritance taxes to be imposed on estates subject to the tax, says: 'If passing to or for the use of a father, * * * or to a son-in-law or a daughter-in-law of the decedent, being in such relation, the tax shall be one per centum of any value not exceeding fifty thousand dollars; * * * Provided, however, That in the above cases, * * * five thousand dollars shall be exempt to * * * each son-in-law or daughter-in-law of the decedent, such son-in-law or daughter-in-law being in such relation at the time of the death of said decedent. * * * If passing to or for the use of collateral heirs beyond the third degree of relationship or to strangers to the blood, the tax shall be ten per centum of any value not exceeding fifty thousand dollars. * * *'

Now, if death or divorce does not sever the tie of affinity, in case issue of the marriage survive, certainly nothing in the statute leads to a different result as applied to the present case, since the statute makes clear the time the relationship shall exist, that is, 'at the time of the death of said decedent.' The statute is plain. The judgment in this respect is correct.

Another dispute arose between the executor and the supervisor with respect to an inheritance tax concerning the south six feet of lot 7, all of lots 8, 9, 10, 11, and 12, block 1002, as the same appear on the map of New Tacoma, Washington territory, filed for record in the county auditor's office February 3, 1875, which property is held by the Bank of California, N. A., Tacoma Branch, as trustee, under a trust deed dated October 30, 1926. It was found and decreed that no inheritance tax was due or owing to the state on account of that property upon the death of William F. Sheard. The supervisor has appealed from this portion of the decree.

William F. Sheard and Elizabeth Sheard, his wife, acquired this real property after their marriage in 1890. On October 15, 1903, he conveyed all his interest in it to her, thus making it her separate property. Rem. Rev. Stat. § 10572. On November 12, 1903, she conveyed the property to him in trust for the benefit of their children, reserving support money for themselves, the grantee taking the legal title to the property with a provision in the conveyance that upon the death of Mr. and Mrs. Sheard the property should vest absolutely in the children surviving at that time.

On November 15, 1904, Mr. and Mrs. Sheard entered into and signed and acknowledged a written agreement dividing all of their property, in...