Flournoy v. Cunningham

California Court of Appeal Mar 24, 1969 No. Civ. No. 33085Published

Before: Kingsley

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Holding. The court held that the decedent's will, when construed as a whole, disposed only of his separate property and his one-half interest in the community property, rather than the entirety of the community property. Consequently, the widow was not required to make a statutory election, and the transfer of a life interest in trust to her was not subject to inheritance tax as a forced election.

Issues

Whether the decedent's will intended to dispose of the entirety of the community property or only his one-half interest.
Whether the widow was required to make an election between her statutory share of community property and the testamentary provisions of the will.
Whether the transfer of a life interest in trust to the widow was subject to California inheritance tax.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Viewing the will as a whole, and considering the latter parts as prevailing, it appears the testator intended to dispose only of his one-half of the community property and his separate property.”

“The order appealed from is affirmed.”

KINGSLEY, J. Cunningham, a resident of Pasadena, died testate on September 24, 1965, survived by his [24]wife, Hortense, and three adult children. At the time of his death he left both separate and community property, the clear market value of which was as follows:

The clear market value of decedent’s half of the community property was $447,468.13.

As of the date of Mr. Cunningham’s death, the law applicable to the taxation of transfers of community property was contained in sections 13551 and 13552 of the Revenue and Taxation Code,1 which sections read as follows :

‘ ‘ § 13551. Death of husband

‘ ‘ Upon the death of a husband:

“ (a) At least one-half of the community property is subject to this part.

“(b) The one-half of the community property which belongs and goes to the surviving wife pursuant to Section 201 of the Probate Code is not subject to this part.

“(c) All of the community property passing to anyone other than the wife is subject to this part.' ’

. “§ 13552. Death of husband; wife’s election to take under will

“When a husband by a will making a testamentary disposition of the community property forces his surviving wife to elect whether to share in his estate under the will or to take her one-half of the community pursuant to Section 201 of the Probate Code, and she elects to take under the will, the property thus taken up to a value not exceeding one-half of the value of the community is not subject to this part. ”

Decedent’s will provided:

"Second : . . . I further declare that I intend by this Will to dispose of not only my separate property, but likewise, [25]with my wife’s approval and consent, of all of the community property.

‘1 Third : I hereby give, devise and bequeath, in equal shares to my three children above named [Howard A.' Cunningham, Marie Cunningham Jones, and David Edward Cunningham], or to their issue by right of representation if any of them- be deceased at the time of my death, one-half of my community property and all of my separate property. ...

Flournoy v. Cunningham

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