Atkins v. Barnett

VALLÉE, J. Appeal from an order approving and confirming the report of an inheritance tax appraiser and fixing the inheritance tax.

Mary Ethel Cunningham died testate on March 19, 1955. Appellant Rhoda Atkins, a sister of the deceased, is administratrix with the will annexed. The deceased was a sister of respondent Bezotra Barnett. Eva E. George, another sister, predeceased Mary Ethel. Estella Cooper was a stranger to the deceased. Appellant’s claim is that the order confirming the report of the inheritance tax appraiser and fixing the tax is predicated on an erroneous construction of the will of the deceased.

The material parts of the will read:

‘ ‘ Second. I give and bequeath to my sister, Eva E. George, all real estate in the City of Los Angeles, State of California; and in the County of Madera, State of California; and all other personal belongings.

“Third. If my sister, Eva E. George, precedes me in death, bequeath all of my real estate and personal belongings heretofore mentioned, to my sister Bezotra Barnett.

“Fourth. I also provide a shelter in my home for Estella Cooper, for the rest of her life, free of any charge whatsoever.

“Fifth. I have no children. If there are any bona fide relatives, I give and bequeath to them one ($1.00) dollar each.

“Lastly, I hereby nominate and appoint my sisters, Eva E. George and Bezotra Barnett of Los Angeles, State of California, to serve as my Executrices without bond, of this my Last Will and Testament, and I do hereby revoke all former Wills, bequests, or designations of beneficiaries whatsoever.”

[10]An inheritance tax appraiser filed a report in which he valued the property bequeathed and devised to Bezotra at $7,254.64 and computed the inheritance tax thereon at $262.73. Bezotra filed objections to the report. Rhoda, as administratrix with the will annexed, filed a “Reply” to the objections. After a hearing the court made findings,1 sustained the objections, and ordered the inheritance tax appraiser to prepare and file a new report and to apportion therein the inheritance tax liability in accordance with the findings. In the findings the court concluded that the interest devised to Estella Cooper by paragraph Fourth of the will constitutes an equitable charge or servitude on the realty and “nothing more”; and that paragraphs Second and Third constitute a residuary clause whereby the deceased gave to Bezotra all real and personal property not otherwise disposed of by the will.