Davis v. Irwin

Opinion

ASHBY, J. Joan L.Davis, as executrix of the estate of Priscilla Kolda, deceased, appeals from an order of the probate court. Decedent died April 23, 1978. Her holographic will disposed of her house as follows: “My property shall go to Joan Davis, a friend, as long as she wishes to live here. Should she decease or not live at the premise of 1077 Alta Pine Lane, Altadena, it will revert to my sister, Mrs. Mary Ann Irwin [respondent].” Certain additional language in the will, which authorizes Joan Davis to sell the property, was excised from the will by order of the court on February 20, 1979, upon a stipulation settling a [285]will contest. That order provided: “That Joan Davis shall have an estate for life in the real property commonly known as 1077 Alta Pine Lane, Altadena, California, but without any power of sale of said property, and subject to her promptly paying and discharging any and all obligations for taxes, repairs, maintenance, assessments, insurance, together with both principal and interest on any mortgage on the property.” That order further provided for division of the furniture and other property of the estate, between Joan Davis and. Mary Ann Irwin.

On April 4, 1980, appellant, as executrix of the estate, filed a “Petition for Determination of Entitlement to Distribution of Estate” in which she alleged that the estate did not have sufficient cash to pay its debts and requested that appellant as executrix be authorized to sell the real property and to distribute the proceeds, after payment of estate obligations, 80 percent to Joan Davis and 20 percent to Mary Irwin, based upon the actuarial tables used by the California inheritance tax referee in valuing the relative interests of Davis and Irwin in the real property. Respondent Irwin objected, and after a hearing, the court denied the petition. This appeal is taken from the order denying the petition.

Appellant’s claim that the liabilities of the estate exceed its cash assets depends upon her assertion that the estate is liable to reimburse Joan Davis and Mary Irwin for $8,322 in inheritance taxes which had been paid by Davis and Irwin. The trial court found that “Petitioner [Davis] voluntarily paid the inheritance taxes assessed against her in the sum of $7,134.00, and did not dispute the amount of the tax or her liability therefor. [1Í] Objector [Irwin] voluntarily paid the inheritance taxes assessed against her in the sum of $1,188.00 and did not dispute the amount of tax or her liability therefor. [1Í] The estate may or may not have sufficient funds on hand or determined to be due the estate from petitioner to pay all costs of administration and claims excluding the inheritance taxes which were voluntarily paid by petitioner and objector .... ” The court concluded that appellant could file a petition for authority to sell real estate and that if it was shown in such proceeding that it was necessary to sell the property to pay estate liabilities then the matter of distribution of the proceeds could be determined. The effect of the court’s order was to instruct the executrix that there was no validity to the assertion of liability for reimbursement of inheritance taxes. (See Prob. Code, § 1240, subds. (/), (m).)