Starr v. Watrous

• Decision Date: 28 March 1933
• Citation: 165 A. 459,116 Conn. 448
• Court: Connecticut Supreme Court
• Parties: STARR et al. v. WATROUS et al.

165 A. 459

116 Conn. 448

STARR et al. v. WATROUS et al.

Supreme Court of Errors of Connecticut.

March 28, 1933

Appeal from Superior Court, New Haven County; Edwin C. Dickenson Judge.

Proceeding in the matter of the will of Marion C. E. Dunscomb, and appeal by Sarah DeForest Starr and another, from an order and decree of the Court of Probate accepting and allowing the account of George D. Watrous and others, executors of the will of Marion C. E. Dunscomb, except that certain items were ordered so restated that succession taxes due to the state on the pecuniary legacies would be paid out of the legacies instead of from the residue of the estate, taken to the Superior Court and tried to the court. Judgment was rendered that the order and decree be restated so as to charge these taxes on the residue of the estate, and Marie Mosle Winter residuary legatee, appeals.

No error.

Lucius F. Robinson and John C. Parsons, both of Hartford, for appellant.

Anson T. McCook, of Hartford, for appellees.

Argued before MALTBIE, C.J., and HAINES, BANKS, and AVERY, JJ.

HINMAN, Justice.

Marion C. E. Dunscomb died in New Haven in September, 1930, leaving a will dated April 7, 1926, article I of which is: " I direct that all my just debts, funeral expenses, succession and other taxes be paid by my executors hereinafter named." In their account the executors claimed credit for payment to the state treasurer for succession taxes indicating an intention to pay these taxes out of the estate and to pay the pecuniary legacies without deduction therefor. After hearing, at which the residuary legatee objected to that feature of the account, the court of probate ordered the account to be so restated that these taxes would be deducted from the legacies. Upon appeal the superior court sustained the course adopted by the executors and rendered judgment ordering the account to be so restated as to charge the taxes to the residue.

The inquiry on this appeal is whether the will of the decedent expresses an intention that the succession taxes upon the legacies should be paid out of her estate, instead of from the legacies. The applicable provision of the statutes concerning the payment of succession taxes, in effect at the time when the will was made and which the testatrix must be deemed to have had in contemplation, was that, except as otherwise provided by a will, " such tax shall be paid from property passing to the donee, beneficiary or distributee, unless such recipient shall pay to the administrator, executor or trustee the amount thereof." Chapter 297, Public Acts 1921, § 6; section 1268, General Statutes 1918; chapter 332, Public Acts 1915, § 10. The obvious purposes of this provision were to clarify and render more definite than had prior statutes (sections 2370, 2372, General Statutes, 1902; chapter 231, Public Acts 1913, § § 5 and 7) the procedure for payment of the tax and further facilitate and insure its collection by the state in the most direct and convenient manner. The same provision was retained in the revised act, chapter 299, Public Acts 1929, § 29, and in section 1388 General Statutes, 1930. In addition, section 36 of the 1929 act, now section 1395 of the General Statutes, made administrators and executors personally liable for the tax, and section 37 (section 1396, General Statutes) provided that " in the absence of a provision in the will charging the tax imposed by the provisions of this chapter to the residuary estate or to some particular fund, an executor, administrator or trustee receiving property, the transfer of which is subject to the tax imposed by this chapter, shall not deliver such property to the transferees without retaining a sufficient portion thereof to pay the tax or in the case of a specific legacy, without collecting the tax from the transferees."

The exceptions mentioned in section 1388 and section 1396 confirm the recognition given in Sherman v. Moore (1915) 89 Conn. 190, 194, 93 A. 241, that a testator may free any or all gifts under his will from diminution, by succession tax in the amount receivable by the legatee, by providing for payment of the tax in some other way than through deduction, by the executor, from the amount of the legacy, of the sum required to be paid as the tax thereon. A testamentary direction that the tax be paid out of the residuary estate or some particular fund would be particularly appropriate in the case of a transfer of specific property or of a specific legacy, to which section 1398 has reference, but, in general, all that is required is that the will sufficiently express an intent that the tax shall be paid out of the estate of the testator other than the property passing to the recipient as donee, beneficiary, or distributee. A natural and appropriate method of accomplishing this purpose is to provide for payment of the tax in like manner as debts of the estate and funeral expenses, the result...