Estate of Loewenstein v. Kuchel

SHENK, J.

This is an appeal from an order approving the report of the inheritance tax appraiser and fixing the amount of inheritance tax due in accordance therewith.

[845]

The appeal is presented on an agreed statement. The appellant, Herbert D. Lowell, is the executor of the last will of the decedent, Melanie L. Loewenstein. He is also her son and the sole distributee under her will.

In October 1939 Henry Meis, an uncle of Melanie, in lieu of the payment of $68,828.54 under an insurance policy, contracted with Connecticut Mutual Life Insurance Company that the latter would retain the principal fund and pay interest earnings thereon monthly to Melanie and her husband Daniel during their lives; upon the death of the survivor to Melanie’s son Herbert; then to Herbert’s surviving widow or children; or if none survive to certain charitable organizations. A proviso in the contract reads that after October 14, 1940, Melanie “with the written consent of said Henry Meis, or, if he be deceased, with the written consent” of his legal representatives “may require the company to pay to her order, any portion of the amount retained, interest payments on the amount so paid thereupon to cease.” If Herbert should become entitled to receive interest, at the age of 21 he could require the company to pay one-half of the amount retained, and at age 25 the whole thereof.

Henry Meis died on January 11, 1943, a resident of the state of Ohio and his estate was administered there, final distribution occurring on March 20, 1950. On October 24, 1947, pending imminency of distribution, Melanie and the Meis executors signed a “Request for and Consent to Withdrawals of Proceeds of Insurance Policy” and filed it with the company. The request and consent reads that since Melanie “desires to have the right and power to require” the company “to pay to her order from time to time such portion or all of the amount retained by said company,” and the son Herbert and the executors of Meis “are agreeable to such payments” and “join in this agreement for the purpose of giving their written consent to such payments, ’ ’ Melanie, with the written consent of the executors and Herbert, “does hereby request and require” the company “to pay to her all or any portion of the amount retained,” payments to be made at any time she may desire; and Herbert and the executors authorize the payment without any further consent on their part.