Stewart v. State of California

Opinion

ROTH, P. J.

The State Controller appeals from a judgment awarding respondent Marian Sisk Stewart (Marian) a refund of gift taxes paid by her under protest plus interest.

On November 14, 1948, Cepha and Robert Sisk (Cepha and Robert), husband and wife, orally agreed that on the death of either, the survivor

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would succeed to all the property of the other and that such survivor would leave all property in his or her possession at the time of death to their daughter, Marian, to take absolutely at age 35. Mutual wills were executed by Cepha and Robert.

Cepha died on November 17, 1957, without having changed her will. Her property, all of which was community, passed to Robert. An order fixing inheritance tax on his succession to her estate was entered on December 11,1961.

On May 9, 1960, Robert revoked his mutual will by means of a holographic will. Robert died on February 25, 1964. Along with minor bequests not at issue, the bulk of Robert’s estate was left in a trust from which Marian was to receive the income.

Marian thereafter brought an action to impose a constructive trust on Robert’s estate. Judgment in her favor was entered on August 1, 1966. The Controller sought to impose inheritance taxes on Cepha’s half of the community property which passed to Marian as a result of the constructive trust action. This court, in

Estate of Sisk,

269 Cal.App.2d 823 [75 Cal. Rptr. 549], decided on February 18, 1969, that Robert’s property (exclusive of the portion inherited from Cepha) was properly subject to inheritance taxation. The court did not reach the question of whether the property reaching Marian from Cepha was taxable, noting that the Controller had conceded that it was not.

(Estate of Sisk, supra,

at p. 828.)

1

On May 28, 1968, the Controller determined that a gift tax was due on Cepha’s half of the property. Marian paid this tax under protest and this action followed. Summary judgment was entered in Marian’s favor. The facts are undisputed. Appellant concedes that there is no evidence to be weighed or question of fact to be resolved. The sole question is one of law. A summary judgment was proper.