Hansen v. Henderson

PEEK, J.

This is an appeal from the decree settling the first account of the executor of the Last Will and Testament of Joseph Upham Pearson, deceased, and from the order for partial distribution. Particularly the appellant attacks that portion authorizing the executor to deduct the amount of the inheritance tax due the State of California, as well as the prorata share of the federal estate tax from the property which the executor proposed to distribute to said appellant Helen Hansen under the terms of the will.

The decedent by subparagraph (a) of paragraph third of his will dated December 10, 1941, devised to appellant certain real property comprising his home and residence with the following provision, to wit:

“Said real property and premises herewith devised shall be free and clear of all liens of any kind and character and description, and if there are any such liens at the time of my death, the same shall be first paid and discharged by my executor before the payment or distribution of any other bequests and devises hereinafter provided.”

In subparagraph (b) of paragraph third the testator also devised and bequeathed to appellant all of his jewelry where-ever situated and all of the furniture and furnishings and personal property located in his said home, and in subparagraph (c) of paragraph third he gave to her an interest in certain sums due him under a lease and contract of sale of certain lands. In a subsequent codicil dated January 23, 1946, he modified this latter bequest, and by a second codicil dated approximately eight months thereafter the testator bequeathed appellant the sum of $15,000 in cash in lieu of the sum provided in the previous codicil. Nowhere in said subparagraphs (b) or (c) or in either of said codicils is there any provision similar to that contained in subparagraph (a) of paragraph third.

Appellant contends that the language appearing in the will that “said real property and premises herewith devised shall

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be free and clear of all liens of any kind and character and description” evidences an intent of the testator that she should receive all of the property devised to her without deduction of the state inheritance tax or its prorata share of the federal estate tax. In answer thereto respondent in effect argues that at most the provision in question could only be applicable to liens against the real property in existence at the time of the testator’s death, such as mortgage liens or other evidence of indebtedness but not the liens, if any, attaching by virtue of federal estate or state inheritance taxes.