Tompkins' Estate, In re
| Decision Date | 12 December 1960 |
| Docket Number | No. 47526,No. 1,47526,1 |
| Citation | 341 S.W.2d 866 |
| Parties | In re ESTATE of Mary W. TOMPKINS, Deceased. Mary T. HALL, Executrix, Estate of Mary W. Tompkins, Deceased, Appellant, v. Milton CARPENTER, Director of Revenue, State of Missouri, Respondent |
| Court | Missouri Supreme Court |
C. P. Fordyce, St. Louis, for appellant.
John M. Dalton, Atty. Gen., Robert R. Welborn, Asst. Atty. Gen., for respondent.
This is an appeal from the judgment of the circuit court, affirming an order of the probate court overruling the exceptions of Executrix Mary T. Hall to the report of a Missouri Inheritance Tax Appraiser theretofore filed in the Estate of Mary W. Tompkins, deceased. We have jurisdiction of the appeal for the reason, among others, that the amount in dispute, exclusive of costs, exceeds $60,000.
The cause comes to the writer on reassignment. After an opinion was prepared and adopted a motion for rehearing was sustained and the cause was redocketed and reargued. Appellant's motion for rehearing and her brief on rehearing do not question the statement of facts set out in the opinion and, since we find it correct and sufficient, we adopt it and certain other portions of the opinion with slight modification.
Mary V. K. de Giverville died in 1913. Her will created a trust which was to continue until the death of the last survivor of five named relatives including Mary W. Tompkins, Mrs. de Giverville's niece. During the existence of the trust and during Mrs. Tompkins' life, the trustee was to pay to her a stated portion of the net income. If Mrs. Tompkins died before the end of the trust, her share of the net income and the same fractional part of the principal (at the termination of the trust) were to be paid to her surviving issue, subject, however, to the provision that Mrs. Tompkins had the unlimited power to appoint by her will the persons to receive such net income and principal which otherwise would go to her surviving issue. On December 16, 1942, Mrs. Tompkins, in a writing directed to the successor trustee, released her right to appoint anyone other than her own descendants and their respective spouses.
Mrs. Tompkins died testate on October 29, 1951, but was not the last survivor of the five named relatives and, consequently, the trust continued. She was survived by her daughter-in-law, Mary T. Tompkins, the widow of her only son Louis. Mary and Louis had two children. Mary subsequently remarried and at trial time was Mary T. Hall, the executrix of the will of Mrs. Tompkins and the present appellant. Thus appellant's two children were Mrs. Tompkins' surviving issue who would have been takers under the de Giverville will in default of appointment. Mrs. Tompkins exercised the power of appointment and by her will gave one half of her 17/27ths share of the income to her daughter-in-law, Mary, and one fourth each to her grandchildren, and directed that upon the termination of the trust 17/27ths of the principal was to be distributed one half to her daughter-in-law, Mary, if living, and the balance thereof or all if Mary should die prior to the end of the trust to her descendants.
By her will Mrs. Tompkins directed her executrix to pay, out of residue of the property which she owned in her own name at her death, all inheritance taxes due in respect of the bequests and devises made in her will, including all 'succession taxes for the payment of which my executor, or any legatee, devisee, or appointee, is liable.'
The inheritance tax appraiser in the Tompkins estate determined that the value of 17/27ths of the principal of the de Giverville trust was $725,468.71 and used that figure in fixing the tax due from appellant and her children, respectively. The total of their assessment was $62,652.36.
In 1913 there had been assessed against the executor of the de Giverville estate an inheritance tax in the amount of $43,628.89, representing five per cent of the gross market value of that estate, and the tax had been paid. With reference to this assessment the appellant contends the appraisal included all of Mrs. de Giverville's property, while respondent says the assumption that the tax assessed was on the entire estate is not justified in view of Sections 314-323 RSMo 1909. We think it is unnecessary to determine this question in order to determine the issues here presented. For our purposes we shall assume that the payment of inheritance taxes in 1913 by the executor of Mrs. de Giverville's estate included inheritance tax on the same property as the instant appointed property. This appeal, as we shall see, turns upon the construction of Section 145.030 RSMo 1949, V.A.M.S., which we shall subsequently set out haec verba.
Appellant's Brief on Rehearing, under the heading of Points and Authorities, contains headings as follows: I--Powers of Appointment at Common Law. II--Historical Development of Inheritance Taxation of Right to Receive Appointive Property. III--The Missouri Power of Appointment Statute. The headings under Division III are as follows: (A) Statutory Provisions; (B) Differences between Provisions of Missouri Statute and Comparable New York and Illinois Statutes; (C) Effect of Statutory Changes Made by Missouri; (D) Respondent's Construction of Our Statute is Erroneous; (E) The Construction Adopted by This Court in Its First Opinion is Erroneous; (F) Our Statute Does Not Require Those Who Receive Appointive Property at Death to Pay Two Inheritance Taxes for the Privilege of Doing So.
This brief does not comply with Supreme Court Rule 83.05(a)(3) and (e), V.A.M.R. as to what the appellant's brief shall contain under Points and Authorities, nor does appellant's original brief fully comply with Supreme Court Rule 1.08 in effect prior to April 1, 1960. The original brief under 'Points and Authorities' states: The subheads, under B, are as follows: '1. The clear words of said Section show that the tax here involved was assessed to the wrong estate and in an erroneous manner. 2. The General Assembly of Missouri did not intend Section 145.030 to require appointees to pay double inheritance taxes upon the privilege or receiving property appointed to them by the donee of a power of appointment. Authorities are cited under the several headings.
Waiving any defects in the form of the briefs filed, we have given them full consideration and find that appellant contends the trial court erred in affirming the order of the probate court overruling her exceptions to the report of the Missouri Inheritance Tax Appraiser because 'Section 145.030 RSMo 1949 does not authorize the imposition of the tax assessed against the appellant and * * * the imposition of the tax in the present case will result in illegal, double taxation.' In the statement portion of Appellant's Brief on Rehearing, we find the following:
Does Section 145.030 RSMo 1949, V.A.M.S. authorize the imposition of the mentioned tax? Section 145.030 provides: (Our italics.)
Appellant argues that the foregoing statute is unambiguous and that a reasonable construction of the language clerly demonstrates that the instant tax was 'assessed to the wrong estate and in an erroneous manner.' In support she points to the first italicized language in the above-quoted section and particularly to the phrase 'and had been bequeathed or devised by the donor by will.' She argues that inasmuch as Mrs. de Giverville was the donor, the instant appointive property has not been, as the statute requires, taxed as though it had been bequeathed or devised by Mrs. de Giverville by will, but, on the contrary, has been taxed as though it was bequeathed or devised by Mrs. Tompkins (the donee) by will. Appellant's position in that respect is amplified by her statement in one of the exceptions to the appraiser's report: '* * * it is impossible for a transfer of property to be taxed in the same manner as though it belonged absolutely to one person and had been bequeathed or devised by the will of another and different person.' Appellant also says 'Section 145.030 does...
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