Tapp v. Mitchell

Decision Date31 May 1960
Docket NumberNo. 38682,38682
Citation1960 OK 135,352 P.2d 900
PartiesElijah Delos TAPP, Appellant, v. Irene V. MITCHELL and Virginia Sue Entriken, Appellees.
CourtOklahoma Supreme Court

Syllabus by the Court

1. Where all primary funds and assets preceding in order of resort for payment of debts have been exhausted, and only specific devises and legacies remain in the estate, the same shall abate and contribute ratably, inter se, to satisfy remaining liabilities of the estate.

2. Estates taxes, both state and federal, constitute an expense of administration and, in the absence of express provisions in the statutes, or proper testamentary direction, may not be apportioned against recipients of non-probate property passing dehors the estate.

Appeal from District Court of Garfield County; F. B. H. Spellman, Judge.

Appeal from judgment of district court affirming county court's final decree of distribution, under terms of which the debts, taxes and expenses of administration were charged, on deficiency of primary funds for payment thereof against a bequest to be borne equally by five legatees; a proportionate part of estate taxes, attributable to property held by decedent in joint tenancy with one of distributees of the estate was ordered to be deducted from such distributee's share of legacy and borne by him. Reversed and remanded with directions.

Page Belcher, Jr., of Belcher, Belcher & Collins, Enid, for appellant.

McKeever, Glasser, McKeever & Conrad, by Douglas McKeever, Enid, for appellees.

HALLEY, Justice.

Elijah Delos Tapp, appellant, complains of error below in determining, on appeal from the county court, the manner of resort to property for payment of debts, taxes and expenses of the estate of James Leonard Tapp, deceased. The testamentary instrument makes, so far as pertinent, the following dispositions:

Clause I consists of a general provision for payment of debts, expenses of last illness and funeral.

Clause II provides a specific devise to Virginia Sue Entriken, decedent's niece, of property known as the Strode Farm.

Clause III contains a devise to Albert Bryan Tapp, decedent's brother, of land known as the Updyke Farm.

Clause IV devises to Irene Virginia Mitchell, testator's sister, decedent's home in Enid, Oklahoma, certain real estate located in El Reno, Oklahoma, and bequeathes to her 'all of the furniture located in the home.'

Clause V devises a remainder in the 'Sunny Slope Farm' to decedent's brothers, Harry Lionel Tapp, Albert Bryan Tapp, his sister, Irene Virginia Mitchell, and his niece, Virginia Sue Entriken, in equal shares, subject to a life estate in Elijah Delos Tapp.

Clause VI states:

'I hereby give, devise and bequeath to my brothers, Harry Lionel Tapp, Elijah Delos Tapp, Albert Bryan Tapp and to my sister, Irene Virginia Mitchell and my niece, Virginia Sue Entriken in equal shares all cash and bonds, all oil and gas properties and royalties, and all notes and accounts receivable which I may own at the time of my death. If any one of the said Harry Lionel Tapp, Elijah Delos Tapp, Albert Bryan Tapp, Irene Virginia Mitchell and Virginia Sue Entriken should pre-decease me I then give and bequeath the said personal property to the survivor or survivors, share and share alike.'

Clause VII provides:

'In the event it becomes necessary to sell any of my property during the course of administration of my estate, I hereby grant unto my executors full power and authority to sell and convey any and all of my real estate or personal property upon such terms and conditions as they deem proper without the necessity of any formal proceedings in the County Court subject only to the confirmation and approval of said Court.'

Clause VIII states:

'I have a life insurance policy with the Massachusetts Mutual Insurance Company and the beneficiary thereunder is my brother, Harry Lionel Tapp. Said policy is in the amount of $2,000.00 and I hereby direct that the proceeds thereof be used to pay my funeral expenses and expenses of my last illness. If there is any balance remaining after payment of said expenses I direct that it be applied toward the expense of administration of my estate.'

Clause IX provides:

'All the rest and residue of my property whether vested or contingent at the time of my death I give, devise and bequeath to my brothers Albert Bryan Tapp, Elijah Delos Tapp, Harry Lionel Tapp and my sister Irene Virginia Mitchell and my niece Virginia Sue Entriken in equal shares. * * *'

The total appraised value of the estate is $95,232.71. Added thereto for the purpose of estate tax assessment, both state and federal, was other property passing dehors probate and not subject to administration. This consisted of: (a) a deposit of $10,000 in a savings and loan association held in a joint tenancy with the right of survivorship in the name of the decedent and appellant Elijah Delos Tapp; (b) a life insurance policy in the sum of $10,000 payable on decedent's death to the named beneficiaries: Albert Bryan Tapp, Elijah Delos Tapp, Harry Lionel Tapp and Irene Virginia Mitchell. (The policy was exempt from state estate tax, 68 O.S.1951 § 989e(A)(6).

All residue, together with funds appropriated in Clause VIII of the will, have been applied to payment of debts, expenses and taxes. They are presently exhausted. Slightly in excess of $8,000 is still required to satisfy the balance of liabilities. Before entry of decree of distribution the executors presented 'application for instruction on order of resort to property for payment of debts, expenses of administration and estate taxes.' Four alternative formulae were submitted regarding the source to which resort should be had for payment of remaining obligations. The County Court directed they should be borne equally by the five legatees named in Clause II of the will, out of their respective distributive share thereunder; the proportionate part of the state tax occasioned by inclusion in the tax return of property in joint tenancy passing dehors probate and not subject to administration, was ordered to be paid by the appellant who was the recipient of such asset.

On appeal to the District Court by Elijah Delos Tapp, the order so outlined was affirmed. Appellant seeks corrective relief from this Court.

He asserts in substance: on exhaustion of residuary assets under Clause IX and of funds earmarked for payment of expenses under paragraph VIII of the will, the legatees and devisees named in the testamentary instrument should contribute ratably inter se toward payment of the remaining liability of the estate. The gift in Clause VI, appellant urges, constitutes a specific rather than a general legacy. Hence it stands upon the same footing as the other bequests and devises of a like class and nature made by the testator in the preceding paragraphs of the will. All legacies and devises, the argument follows, should abate proportionately. 84 O.S.1951 § 3, subdivision 5; 84 O.S.1951 § 6.

Appellees concede the issue so tendered is governed by the provisions of 84 O.S.1951 § 3; In re Fletcher's Estate, Okl., 308 P.2d 304. They contend, however: (a) the bequest in Clause VI amounts in law to a general legacy, and subdivision 4 of the mentioned statute should be applied; (b) the will, considered as a whole, exhibits a manifest testamentary intention that the legatees named in paragraph VI should bear an aliquot part of expenses, debts and taxes on exhaustion of residue and funds specifically appropriated for such purpose. 84 O.S.1951 § 3, provides in pertinent part:

'The property of a testator, except as otherwise especially provided in this code and in the chapter on civil procecure must be resorted to for the payment of debts in the following order:

'1. The property which is expressly appropriated by the will for the payment of the debts.

'2. Property not disposed of by the will.

'3. Property which is devised or bequeathed to a residuary legatee.

'4. Property which is not specifically devised or bequeathed, and,

'5. All other property ratably * * *.'

Our statute, 84 O.S.1951 § 1, subdivision 1, defines specific legacy:

'A legacy of a particular thing, specified and distinguished from all others of the same kind belonging to the testator is specific; if such legacy fails, resort cannot be had to the other property of the testator.'

In In re Fletcher's Estate, supra, we held :

'* * * Specific legacies are bequests of a particular fund, chattel or portion of an estate, distinguishable from the remainder of the property, and differentiated from other articles or funds of the same or similar nature. See generally 57 Am.Jur., Wills, Secs. 1401, 1402, 1403; 69 C.J., Wills, Secs. 2085, 2086, 2087. * * *'

The property described in Clause VI was separated and distinguished from other personalty of the testator. It may be easily identified. The gift can be satisfied solely by the things bequeathed. Considering the instrument as a whole, as we must do, we are led to the conclusion it was the unmistakable intention of the decedent that the designated legatees receive the property enumerated and should have nothing else in substitution therefor. The bequest, which bears no relation to other assets of the estate, may not be made a burden or charge thereupon. If the property described in Clause VI had no existence, due to alienation, extinction or destruction when the bequest became operative at testator's death, the legacy would fail. In re Van Duyne's Estate, 205 Okl. 440, 239 P.2d 387.

In 96 C.J.S. Wills § 1129g, p. 900, it is said:...

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11 cases
  • Glover's Estate, In re
    • United States
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    ...Minn. 516, 40 N.W.2d 342 (1949).Michigan. Knowles v. Nat. Bank of Detroit, 345 Mich. 671, 76 N.W.2d 813 (1956).Oklahoma. Tapp v. Mitchell, Okl., 352 P.2d 900 (1960).6 Under the court's opinion, the widow in the present case will receive $87,100 as her dower in personal property out of $2,15......
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    ...in the estate, the same shall abate and contribute ratably, inter se, to satisfy remaining liabilities of the estate. Tapp v. Mitchell, 1960 OK 135, 352 P.2d 900, 901 First ¶ 20 The order by which a decedent's property is to be resorted to for the payment of debts/estate expenses referred t......
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