Opinion
No. 4234.
Submitted October 6, 1953.
Decided October 30, 1953.
The certification by the probate court to the Supreme Court of questions relating to the incidence of the state inheritance tax on legacies and devises in wills is proper where both the probate court and the executor are in doubt and it is impossible to make an accurate distribution of the estate until the will has been construed. Briefs of fiduciaries upon certified questions to the Supreme Court by the probate court may properly be furnished as amicus curiae to make useful suggestions to the court. In the absence of a definite provision in the will, express or implied, the legacy and succession tax imposed by R. L., c. 87, as amended, is to be deducted from each legacy or devise or collected from the legatee or devisee by the executor and paid over to the State. The legacy and succession tax (R. L., c. 87, as amended) is levied upon the interest of the legatee or distributee. The use of the word "taxes" in the preamble of a will in the following manner "After the payment of my just debts, funeral charges and expenses of administration, taxes, I dispose of my estate as follows" does not sufficiently indicate a testamentary intention that the legacy and succession tax (R. L., c. 87) shall be paid out of the residuary clause rather than a proportionate charge against each legatee and devisee.
CERTIFICATION, of a question of law to the Supreme Court by the probate court of Strafford County pursuant to R. L., c. 346, s. 29, as inserted by Laws 1947, c. 90.
The testatrix, a single woman, died in 1953 leaving a will dated July 8, 1949. The will was not drawn with legal advice although it is known that the testatrix was furnished with a suggested draft of a will by a layman having some experience with wills. The testatrix disposed of her personal estate totalling approximately $17,000 and her real estate valued at $12,000. She bequeathed $1,200 for Masses for herself, her sister and her brother in the second, third and fourth clauses of her will. The fifth and sixth clauses contain pecuniary legacies to a brother and sister, the seventh clause devised her homestead place to a brother and the eighth clause devised the residue to her surviving brothers and sisters. After the introductory statement of the will and prior to the first clause, which directed the executor to erect a suitable tombstone, appeared the following preamble: "After the payment of my just debts, funeral charges and expenses of administration, taxes, I dispose of my estate as follows:"
The executor of the will filed a petition in the probate court for present partial distribution of the estate to the extent necessary to satisfy the legacies mentioned in clauses second, third and fourth and requested the probate court to instruct him as to the incidence of the state inheritance taxes as to these clauses of the will and also as to clauses fifth, sixth and seventh in view of the preamble of the will quoted above. All legatees and the devisee under the will joined in the petition. The probate court (Hardwick, J.) being in doubt as to the incidence of the inheritance tax in view of the language of the preamble of the will transferred the question pursuant to Laws 1947, c. 90.
Frank W. Peyser as attorney for the executor furnished a brief as amicus curiae.
The legatees and devisee furnished no briefs.
The principal question in this case is whether the word "taxes" in the preamble of the will indicates a testamentary intention that the legacy and succession tax (R. L., c. 87) shall be paid by the estate out of the residuary clause or whether each legatee and the devisee shall pay his proportionate share of the tax. Before deciding the principal question two preliminary matters present themselves.
Since both the executor and the probate court were in doubt as to the incidence of the state inheritance tax on the legacies and devise in the will, it was impossible to make an accurate distribution of the estate, partial or final, until the will had been construed. For the reasons stated in In re Harrington Estate, 97 N.H. 184, it is clear that the probate court had jurisdiction to certify this question to the Supreme Court. See also, In re Mooney Estate, 97 N.H. 187; In re Byrne Estate, 98 N.H. 300.
Counsel for the executor recognized that he had no right to seek any particular construction of the will (Bisson v. Gosselin, 90 N.H. 273, 275) and accordingly his brief cites cases in other jurisdictions on both sides of the question. Therefore there is no reason to disregard his brief as was done in the Bisson case, but rather it has been treated as a brief of amicus curiae whose "function is merely to make useful suggestions to the court." Blanchard v. Railroad, 86 N.H. 263, 266. Such briefs are not to be discouraged particularly in nonadversary proceedings of this nature.
Whether inheritance taxes are a charge against the estate or are to be deducted from the several legacies, depends on the intention of the testatrix, who may provide by her will how such charges shall be treated. Kingsbury v. Bazeley, 75 N.H. 13. In the absence of a definite provision in the will, express or implied, the legacy and succession tax imposed by R. L., c. 87, as amended, is to be deducted from each legacy or devise or collected from the legatee or devisee by the executor and paid over to the State. R. L., c. 87, s. 54; Laws 1945, c. 144. Unlike the federal estate tax, which is a tax upon the estate of a decedent, the state legacy and succession tax is levied upon the interest of the legatee or distributee. Amoskeag c. Co. v. Dartmouth College, 89 N.H. 471, 476. Where the will makes it reasonably clear that succession or inheritance taxes are to be paid from the residuary estate the legatees receive their legacies free of the tax as was the case in Jansen v. Richardson, 93 N.H. 122.
In the present case the word "taxes" in the preamble of the will which follows debts, funeral charges and expenses of administration is the only word which in any way could indicate that the testatrix intended that the executor should not deduct the tax from each bequest as provided by statute. Since the decedent's estate was not of sufficient size to be subject to the federal estate tax the apportionment statute has no bearing here. R. L., c. 88-A; Laws 1947, c. 102; Laws 1950, sp. sess. c. 5. While there is some conflict in the cases a majority of them have held that the word "taxes" or a similar word in a preamble or introductory part of the will is not a sufficiently definite statement to require that inheritance taxes shall be paid by the estate. 51 A.L.R. 454; 116 A.L.R. 854; 141 A.L.R. 847; Norton v. Jones (Tex.Civ.App.), 210 S.W.2d 820. The cases have usually required that the will definitely show a testamentary intent to impose the inheritance tax upon the residuary estate and this intent is not to be inferred from a doubtful phrase or word in the will. Sherman v. Moore, 89 Conn. 190. "If no clear testamentary direction can be found, it must be presumed that it was intended that the burden of the tax shall fall where the law places it." Prescott v. St. Luke's Hospital, 280 Mass. 229, 231. There is nothing in the will to indicate that she preferred any legatee to the other and it is fully as probable that the word "taxes" referred to taxes which she might owe at the date of her death.
Furthermore the word "taxes" appears in the usual and ritualistic preamble of the will along with debts and expenses that the executor would be required to pay even if no such provision were inserted in the will. It is doubtful that either the testatrix or the scrivener gave any specific thought to the legacy and succession tax but in any event the will uses no language sufficient to show an intention to change the statutory incidence of the tax as provided by R. L., c. 87, s. 54, as amended by Laws 1945, c. 144. No special word, phrase or formula is required to shift the payment of the taxes from the legatee to the residuary estate but an intention to do this cannot be inferred from the ambiguous expression used in the will. 4 Page, Wills (Lifetime ed.) s. 1770. The probate court is advised that each legatee and devisee takes under the will subject to the deduction for the legacy and succession tax.
Case discharged.
All concurred.