Wilkinson v. Brune

• Decision Date: 30 October 1984
• Docket Number: No. 47896,47896
• Citation: 682 S.W.2d 107
• Parties: In the Matter of Irvin E. WILKINSON, Respondent, v. John BRUNE, Appellant.
• Court: Missouri Court of Appeals

Page 107

682 S.W.2d 107

In the Matter of Irvin E. WILKINSON, Respondent, v. John BRUNE, Appellant.

No. 47896.

Missouri Court of Appeals,

Eastern District,

Division Six.

Oct. 30, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 5, 1984.

Charles J. McEnery, Jr., Clayton, for appellant.

Briegel, Dempsey, Baylard & Patane, P. C., Union, for respondent.

REINHARD, Chief Judge.

This is an appeal from two orders of the Circuit Court of Franklin County, Probate Division. One order provided that the widow's election to take her statutory share of decedent's estate would be charged proportionately against all beneficiaries of the will, rather than against the residuary estate. The other order apportioned among beneficiaries the cost of certain payments made from decedent's estate, rather than charging it to the residuary beneficiary as a debt of the estate. John Brune, a specific legatee, appeals both orders.

Irvin and Albert Wilkinson, brothers, owned three parcels of land as tenants in common, and approximately $49,000 in joint accounts and certificates of deposit with right of survivorship. Albert individually owned 107 shares of bank stock, 300 shares of stock in U.S. Steel, $1,109 in cash, and a debenture in U.S. Steel.

Albert died testate on May 5, 1979. He devised all his estate to his brother Irvin, and appointed Robert Vossbrink as his personal representative. Albert's estate owed approximately $27,400 including $19,000 in federal and state inheritance and estate taxes. The debenture in U.S. Steel was sold, and Albert's liquid assets reduced the obligations to approximately $23,500.

Before Albert's estate was closed, Irvin died. He appointed Vossbrink and John Brune as his personal representatives. Vossbrink and Brune paid $23,500 out of Irvin's estate in order to close Albert's estate. Irvin's will provided:

FIRST: I direct the payment of all my just debts and funeral expenses.

SECOND: To my wife, Emma Mae Wilkinson, I give and bequeath one-third ( 1/3) of my estate as finally determined for federal estate inheritance tax purposes. This bequest to be in lieu of any and all other allowances of whatsoever nature provided by law.

THIRD: To my friend, John Brune, of Franklin County, Missouri, I give devise and bequeath my home farm with all improvements thereon.... This bequest is subject, however, to a one-acre tract upon which is located the Wilkinson family cemetary located on the above tract of land which cemetary is to be maintained and cared for by said John Brune and his executors, administrators, successors and assigns. This is also subject to the right of my wife, Emma Mae Wilkinson, to occupy the residence on said farm as long as she desires to use and occupy the house as her home.

FOURTH: Any stock or debentures that I may have in United States Stell [sic] Corporation at the time of my death, I give and bequeath to Otto N. Horn, to have and to hold, absolutely.

FIFTH: All of the rest, residue and remainder of my property and estate, of every kind, I give, devise and bequeath to my friend, Emmet Ming, to have and to hold, absolutely.

SIXTH: All estate taxes, inheritance taxes and successive duties assessed ... against my estate shall be paid by my executors out of the general assets of my estate and thereafter the such taxes shall be apportioned between the beneficiaries of my estate and each beneficiary shall contribute to my estate his or her proportionate share of such taxes and no bequest to any beneficiary shall become final until the beneficiary's share has made full contribution to my estate, except my wife, Emma Mae Wilkinson, who shall not be required to make any contribution. It being my desire and my will that such taxes shall be charged against or deducted from such gift, devise or bequeath upon or by reason of which such taxes are assessed and paid, except in the case of my wife. My executors, however, shall not be charged with the payment of any Missouri Inheritance Tax which cannot be determined finally as of the date of my death.

Pursuant to § 474.160 RSMo. 1978, Irvin's wife, Emma Mae Wilkinson, renounced the will and elected to take her statutory share of the estate rather than the one-third ( 1/3) Irvin had devised to her. Because there were no lineal descendants, she was entitled to one half of the estate.

The principal issue in this case is how a surviving spouse's election to take against the will affects the distribution of the rest of the estate when the testator has not specified what is to happen. Clearly when the testator has so provided in his will, the testator's intent is given effect. However, in cases where the testator has not so provided, the parties appear to agree that the issue is not clearly resolved by the Missouri cases. See e.g., Mercantile Commerce Bank & Trust Co. v. Binowitz, 238 S.W.2d 893 (Mo.App.1951); cf. In re Howe's Estate, 379 S.W.2d 154 (Mo.App.1964). These cases offer little guidance for determining who bears the loss when the testator's intentions are not apparent.

Generally, there are two views on the issue. Both views are subject, of course, to the testator's expressed intent to the contrary. One view is that when a surviving spouse elects to take against the will, the loss caused by the spouse's increased share is distributed among the beneficiaries by using the general rules of abatement. In other words, the loss is first assessed against the residuary estate, next against general legacies, and then against specific legacies, if necessary. The rationale behind this view is that the testator probably would have intended to give his specific legatees a preference over general legatees, and general legatees a preference over residuary legatees. For applications of this view, see Campbell v. Cason, 206 Miss. 240, 40 So.2d 258 (Miss. banc 1949); Crocker v. Crocker, 230 Mass. 478, 120 N.E. 110 (1918).

The other view is that the surviving spouse takes an undivided interest in all property in the estate, and the loss is distributed pro rata among all the remaining beneficiaries, regardless of the class of their legacies. The basis for this view is that the general plan of the will is preserved, and the intended balance between preliminary and residuary beneficiaries is maintained. This view recognizes that the testator does not necessarily prefer his specific legatees over general and residuary legatees. In fact, the exact opposite may be his intent. The testator may wish to leave some specific but less significant items to specific legatees, and the bulk of the estate to another through the residuary clause. For application of the pro rata view, see In re Rosenzweig's Will, 19 N.Y.2d 92, 278 N.Y.S.2d 192, 224 N.E.2d 705 (1966); In re Povey's Estate, 271 Mich. 627, 261 N.W. 98 (1935); In re Taylor's Estate, 213 Minn. 509, 7 N.W.2d 320 (1942).

Here, the order of the trial court was in line with the second view. The widow received a "common one-half interest of each asset of the estate subject to payment of claims and cost of administration or one-half of each specific bequest and one-half of the residuary ..." Appellant Brune argues that the electing spouse's increased share should be charged against the remaining beneficiaries under the general rules of abatement in § 473.620 RSMo. 1978, which follows the first view above: the loss would fall first on the residuary estate, then on the general legacies, and then, if necessary, on the specific legacies.

The election statute itself does not indicate where the loss to remaining beneficiaries should fall. Section 474.160 RSMo. 1978. There is case law which indicates that an electing spouse takes an undivided interest in all of the real property in the estate. See, e.g., Borchers v. Borchers, 352 Mo. 601, 179 S.W.2d 8, 10 (1944); Wigley v. Beauchamp, 51 Mo. 544, 547 (1873); In re Estate of Youngblood, 447 S.W.2d 824, 827 (Mo.App.1969), aff'd 457 S.W.2d 750 (Mo. banc 1970). However, these cases were either decided before the current election statute or their language is not dispositive of the issue before us.

Brune notes that the omitted spouse statute, § 474.235 RSMo. Supp.1983, expressly provides that the abatement rules of § 473.620 apply in an omitted spouse situation. He argues by analogy that the abatement statute should also apply to an election by a surviving spouse. Evaluation of this argument calls for a closer examination of these statutes.

We note initially that although the election statute provides that the electing spouse takes "by descent," § 474.160 RSMo. 1978, this does not mean the spouse takes under the general intestacy statute. Rather, the spouse takes strictly under the election statute. Jones v. Jones, 376 S.W.2d 210 (Mo. banc 1964).

Prior to the enactment of the current election statute, an election such as the present one was governed by §§ 469.110 and 469.090(2) RSMo. 1949 (repealed 1955), which provided that the electing widow was entitled to "one-half of the real and personal estate belonging to the husband at the time of his death, absolutely, subject to the payment of the husband's debts." The current election statute, § 474.160(1) RSMo. 1978, provides that the electing spouse shall receive "one-half of the estate." The term "estate" is defined in § 472.010, RSMo. Supp.1983, to mean "the real and personal property of the decedent..." Applied literally, the statute indicates that the electing spouse actually takes an interest in each item of property.

Both the current election statute and the applicable section of the definitional statute were enacted in 1955 and are based on the Model Probate Code of 1946. See Committee Comments following § 472.010, RSMo. Supp.1957 (explaining source of definitions, including...