Gibson v. Jones

FILES, P. J. This appeal involves the interpretation of that portion of a will which directs payment of taxes, and the right of the appellants to raise the issue initially in the appellate court.

May A. Meyer died on January 26, 1964, leaving a will dated July 11, 1960, and a codicil thereto dated January 17, 1963. Both instruments were admitted to probate. Charles L. J ones and William A. Sickner were appointed coexeeutors and letters testamentary were issued to them on February 25, 1964.

The pertinent provisions of the will and codicil follow: By paragraph Third of her will, testatrix left to Minnie Dixon the sum of $500 to be paid to her “tax free.” By the same paragraph, she gave specific items of personal property to Our Lady of Lourdes Convent.

[749]Paragraph Fourth of the will contains the following language :

“Fourth: The residue of my estate I leave as follows: To Thomas P. Lahey, Sr., any real property still in my estate which came to me from the estate of my father. In the event he should predecease me, the real property shall then augment any personal property which came to me from the estate of my father and shall be divided as follows: [Then follows a provision for division among the children of Thomas P. Lahey, Sr., the nephew of the decedent, and a first cousin of the decedent.]

“(b) The balance of the residue of my estate being the assets from the estate of my late husband Delmar E. Meyer, and any other remaining assets, to William E. Sickner and Charles L. Jones, in Trust, for the following purposes:” [Then follow the terms of the trust with provisions for distribution of income and principal.]

Paragraph Fifth of the will says: “I direct that all inheritance and Federal estate taxes occasioned or payable by reason of my decease shall be charged to and deducted from the principal of my estate. ’ ’

Paragraph First of the codicil states: “I direct that any cash I may have in the United California Bank, Bank of America and the Security First National Bank, be distributed to Thomas P. Lahey, Sr., and if he be deceased such cash shall be distributed in equal shares to his living issue.”

On December 3, 1964, the executors filed their first and final account, request for fees and petition for distribution. The petition showed that all inheritance and estate taxes had been paid out of the residue distributable to the trustee's. The report also showed that the real property which was devised to Thomas P. Lahey, Sr., is located in the State of Michigan and that the California estate in the hands of the executors amounted to $262,356.47.