Nash v. Flournoy

[561]

COBEY, J.

The sole issued on this appeal is whether a portion of the state inheritance tax in the amount of $3,782

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upon the transfer of a remainder interest in the residue of the testatrix ’ estate under her probated will to her sister and her sister’s husband can be avoided if those persons reject the bequest. After the report of the inheritance tax appraiser was filed on March 15, 1965, the sister and her husband rejected said bequest by a written instrument acknowledged in June of 1966.

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The trial court, applying Revenue and Taxation Code section 13409, fixed the tax in accordance with the report and as if the bequest had not been rejected.

In seeking a modification of the order fixing the inheritance tax to the extent indicated, appellant first argues that the rejection of the bequest, which ordinarily would relate back to the time of the testatrix’ death to prevent vesting of the legacy,

(Estate of Meyer,

107 Cal.App.2d 799, 810 [238 P.2d 587] ; Prob. Code, § 300) created an intestacy with respect to the interest in the estate intended to be transferred by the bequest; and since the entire estate is community property, such interest then passed intestate to the testatrix’ surviving husband, the said Jay A. Nash, pursuant to Probate Code, section 201. Under Revenue and Taxation Code section 13551, subdivision (a) as it existed on August 2, 1963,

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the date of the testatrix’ death, none of the community property transferred to the surviving spouse was subject to the inheritance tax law.

Appellant also contends, in the event his first argument is rejected, that the application of the previously mentioned Revenue and Taxation Code section 13409 results in an unconstitutional taking of property without due process of law.

Neither of these positions is valid. The right of inheritance is purely and exclusively statutory in origin and therefore, within constitutional limits, may be subjected to