Johnson v. Hall

Digges, J., delivered the opinion of the Court. Murphy, C. J., dissents and filed a dissenting opinion at page 657 infra. Confronting us in this case is the task of finding a final resting place for the federal estate tax obligation which was ⁶⁴⁶ assessed on the worldly goods owned at the time of her death by Catherine W. Johnson, M.D., of Fort Foote, Prince George’s County, Maryland. The orphans’ court of that county concluded that the federal estate tax should be apportioned among the beneficiaries named in Dr. Johnson’s last will and testament; however, the Court of Special Appeals reversed and placed the entire burden of this tax upon the residuary legatee.

Hall v. Johnson, 38 Md. App. 589 , 382 A. 2d 332 (1978). We granted certiorari and now reverse the judgment rendered by the Court of Special Appeals. Upon her death in 1973, Dr. Johnson left a gross estate slightly in excess of one-half million dollars which, by her will, she divided among her close relatives and friends. After making a number of specific bequests, she left the residue of her estate in trust for the benefit of her son, Carman, who had a history of recurring mental illness.

Among these specific bequests were gifts of stock to Dr. W. Luther Hall and Dr, James M. Bacos, the respondents here, both of whom, the will indicates, had attended Dr. Johnson as her personal physicians, 1 The will was admitted to probate in December 1973 with another son of the testatrix, Jule Abner Johnson, who is the petitioner here, being named as personal representative. In January of 1977, preparatory to making a final accounting and distribution, the personal representative ⁶⁴⁷ sought the approval of the orphans’ court to apportion the federal estate taxes on a pro rata basis among all the beneficiaries. 2 The two physicians opposed apportionment on the ground that the will directed payment of these taxes from the residuary estate. 3 It is the resolution of this dispute to which we now turn our attention. We begin by noting that, except in instances when life insurance proceeds pass directly to the beneficiary and in cases when property subject to a general power of appointment is devised, the burden of paying federal estate taxes, because of the absence of any federal statute regulating the subject, is determined by reference to state law. Riggs v. del Drago, 317 U. S. 95, 97-98, 101-02 , 63 S. Ct. 109 , 87 L. Ed. 106 (1942); see I.R.C. §§ 2206-07.

Historically, estate taxes were viewed, like any other transfer tax or administrative expense, as being part of the cost of administration and, absent an expression of intent in the will to the contrary, payable from the residuary portion of the estate. Scoles & Stephens, The Proposed Uniform Estate Tax Apportionment Act, 43 Minn. L. Rev. 907 , 915 (1959). The inequity which frequently resulted from the application of this “common law” rule, especially when the residue was left to sustain a widow or minor children, spurred many state legislatures to revise that rule through statutory enactment.

Id. These statutes, the first of which was adopted in New York in 1930, usually provide that, in the absence of an expression of intent in the will to the contrary, federal and state estate taxes are to be apportioned among the beneficiaries in proportion to the value of the gifts they receive. 4 Id. Maryland adopted its first ⁶⁴⁸ apportionment statute by the enactment of chapter 546 of the 1937 Laws of Maryland. This early law was substantially revised by chapter 156 of the 1947 Laws, which, in turn, was replaced in 1965 with a new enactment that largely tracks the 1964 revision of the Uniform Estate Tax Apportionment Act. 5 This statute is now codified as Md. Code (1974), § 11-109 of the Estates and Trusts Article and in pertinent part provides: 6 (b) Persons among whom tax to be apportioned. — The [federal and Maryland estate taxes] shall be apportioned among all persons interested in the estate.

The apportionment shall be made in the proportion that the value of the interest of each person interested in the estate bears to the total value of the interests of all persons interested in the estate. (k) Applicability. — Except as otherwise provided in the will, or other controlling instrument, the provisions of this section shall apply to the apportionment of, and contribution to, the federal and Maryland estate taxes. It is evident from a reading of subsection (k) of the act that the application of the rule of apportionment set out in subsection (b) is mandatory, unless the will evinces an expression of intent to the contrary. This enactment, therefore, is in harmony with the firmly established rule that, ⁶⁴⁹ unless prohibited by statute or public policy, the intent of the testator as ascertained from the four corners of the will controls the disposition of a decedent’s estate.

E.g., Wesley Home v. Merc.-Safe Dep. & Tr., 265 Md. 185, 198 , 289 A. 2d 337, 344 (1972); Veditz r. Athey, 239 Md. 435, 448 , 212 A. 2d 115, 122 (1965); Shellady, Inc. v. Herlihy, Ex’r, 236 Md. 461, 471 , 204 A. 2d 504, 509 (1964). Most, if not all courts, including the Court of Special Appeals in its opinion below, have recognized, however, that under tax apportionment statutes an intention not to apportion must be plainly stated in the will or other controlling instrument before the legislative scheme can be ignored. See Hall v. Johnson, 38 Md. App. 589 , 596 & n. 7, 382 A. 2d 332 , 336 & n. 7; Annot., 71 A.L.R.Sd 247, 315 & n. 81 (1976) (citing cases).

In examining a will for the purpose of fixing estate tax responsibility, the court should not try to discern what the testator meant to say, but what he meant by what he did say, for a few simple words, which need not be couched in terms of a negative direction against apportionment, will be sufficient if they demonstratively express the testator’s intent. Succession of Jones, 172 So. 2d 312, 315 (La. App.), cert. denied, 247 La. 718 , 174 So. 2d 131 (1965). Put another way, “[i]n a tax allocation problem the text of the will is to be scanned only to see if there is a clear direction not to apportion, and if such explicit direction is not found, construction of text ceases because the statute states the rule. ” In re Mills Estate, 189 Misc. 136 , 64 N.Y.S.2d 105, 110 (1946) (emphasis in original), aff’d, 272 App. Div. 229 , 70 N.Y.S.2d 746 (1947), aff’d, 297 N. Y. 1012 , 80 N.E.2d 535 (1948), quoted in Hall v. Johnson, supra, 38 Md. App. at 596 , 382 A. 2d at 336 ; see Annot., 71 A.L.R.3d 247 , 317-19 (1976); cf. Aged People’s Home v. Hospital (Textor v. Textor), 170 Md. 128, 131 , 183 A. 247, 248 (1936) (in absence of explicit provisions in will allocating inheritance tax to residue, beneficiaries must bear tax burden).

In seeking to show that the contents of Dr. Johnson’s will demonstrate a clear intent to avoid the rule of apportionment set out in section 11-109, respondents, who bear the burden of proof, In re Pepper’s Estate, 307 N. Y. 242 , 120 N.E.2d 807, 811 (1954); Mitnick, State Legislative Apportionment of the ⁶⁵⁰ Federal Estate Tax, 10 Md. L. Rev. 289 , 310-11 (1949), have focused almost exclusively on the initial item of the will. FIRST: I direct that all lawful debts I owe at the time of my death, including funeral and administration expenses and the expense of my last illness (but not including debts secured by mortgages on real property, except matured obligations as they fall due), and all estate and inheritance taxes, be paid as soon after my death as can lawfully and conveniently be done. [(Emphasis supplied.)] While we have no doubt that words similar to those used in this first clause are contained in many wills which have been probated in this State, including wills which have been before this Court on other occasions for other reasons, we have not been presented previously with the question of whether such language constitutes a direction that the residuary portion of the estate provide the funds to pay estate taxes. Faced as we are with scant precedent from our previous cases, we explore the decisions of our sister states to see whether they have confronted this same constructional problem. In doing so, we find numerous states have adopted statutes similar to ours and a number of their courts have been presented with the contention that language almost identical to that contained in the first clause of the Johnson will expresses an intent not to apportion.

Of those, a vast majority have held that a direction against apportionment is signified by such language. Typical. of the analysis utilized primarily by these authorities is the opinion of the Supreme Court of Virginia in Baylor v. National Bank of Commerce of Norfolk, 194 Va. 1 , 72 S.E.2d 282 (1952). There, when called upon to determine whether the testator had sufficiently communicated an intent to charge his general estate rather than each legatee with the expense of estate and inheritance taxes by directing “that all my just debts, funeral expenses and any inheritance, estate, and transfer taxes which may be assessed against my estate, or any beneficiary under this will ... be paid by my ⁶⁵¹ Executors, hereinafter named, as soon as practicable after my death,” the court opined: The testator made no distinction between debts, funeral expenses and State inheritance and Federal transfer taxes. It is clear from the language used that he intended all of the items to be treated alike and to be paid in the same manner and from the same fund [, the residue]. [ 72 S.E.2d at 284 .] Using this same analysis when dealing with similar testamentary provisions, a number of other courts have reached the same result as did the Supreme Court of Virginia.

See Starr v. Watrous, 116 Conn. 448 , 165 A. 459 -60 (1933); In re Bett’s Estate, 2 Ill. App. 2d 453, 119 N.E.2d 801 , 803-04 (1954); University of Louisville v. Liberty Nat Bank & T. Co., 499 S.W.2d 288, 289 (Ky. 1973) (overruling McKinney v. Mt. Sterling Nat. Bank, 310 Ky. 186 , 220 S.W.2d 379, 382-83 (1949)); Succession of Jones, 172 So. 2d 312, 315 (La.

App. 1965); Thomas v. Fox, 348 Mass. 152 , 202 N.E.2d 912, 913 (1964); In re Hund’s Will, 266 App. Div. 379 , 42 N.Y.S.2d 505 , 506-07 (1943) (per curiam); In re Moritz’ Will, 48 Misc. 2d 323 , 264 N.Y.S.2d 734, 737 (Sur. Ct. 1965); In re James’ Estate, 180 Misc. 441 , 40 N.Y.S.2d 4, 6 (Sur. Ct.), aff’d, 267 App. Div. 761 , 45 N.Y.S.2d 938 (1943); Gaither v. United States Trust Company of New York, 230 S. C. 568, 97 S.E.2d 24, 26-27 (1957); In re Cudahy’s Will, 251 Wis. 116 , 28 N.W.2d 340, 341 (1947); In re Ogburn’s Estate, 406 P. 2d 655, 657 (Wyo. 1965); see In re Bauer’s Will, 54 Misc. 2d 1060 , 284 N.Y.S.2d 98, 104 (Sur. Ct. 1967); In re Herz’ Estate, 203 Misc. 1077 , 119 N.Y.S.2d 129, 132-33 (Sur.

Ct. 1953); In re Horn’s Estate, 351 Pa. 131 , 40 A. 2d 471, 473 (1945). Although we recognize that this very substantial authority merits our serious consideration before rejecting it, we nonetheless conclude that the decisions constituting the majority are not soundly reasoned and we decline to follow them; instead, we prefer to join the ranks of a small minority of courts which have reached the opposite but, in our view, the correct result. See In re Estate of Cummings, 263 Cal. App. 2d 661 , 69 Cal.

Rptr. 792, 797 (1968); In re Keller’s ⁶⁵² Estate, 134 Cal. App. 2d 232 , 286 P. 2d 889, 892 (1955); In re Grondin’s Estate, 98 N. H. 313, 100 A. 2d 160, 162-63 (1953); 7 In re Robord's Estate, 69 Misc. 2d 1026 , 332 N.Y.S.2d 698, 701-02 (Sur. Ct. 1972); In re Carrington’s Estate, 136 N.E.2d 182, 184-85 (Ohio P. Ct. 1956); Skaggs v. Yunck, 10 Or. App. 536 , 500 P. 2d 1230, 1231 (1972).

Accepting the premise, as all courts on both sides of this controversy do, that a statute directing apportionment will only be ignored if the testator clearly and unambiguously indicates that to be his intention, 8 we fail to see how the first clause, whether read in isolation or examined in the context of the entire will, in any way expresses Dr. Johnson’s desire that all the beneficiaries should not share proportionately the bite of the federal estate tax. Lending uncertainty to the result reached by those courts that have found clauses similar to the first in Dr. Johnson’s will sufficient to show an intent to apportion is the fact that the logic of their analysis can also be used to sustain an argument that the language of the will, by grouping debts and expenses with taxes, expressed an intent to apportion debts and expenses among the beneficiaries. We say this because we see no reason why the rule that, absent a provision in the will to the contrary, debts and expenses are charged to the residue, see England v. Prince George’s Parish, 53 Md. 466, 471 (1880), should override the presumption that, absent an expression of intent in the will to the contrary, inheritance and estate taxes are charged to the individuals receiving the gifts, Bouse v. Hutzler, 180 Md. 682, 685 , 26 A. 2d 767, 769 (1942); Md. Code (1974), § 11-109 (b) of the Estates and Trusts Article. In actuality, without more, there is no basis for asserting other than that these legal presumptions continue independently with neither being affected by the fact that words which pertain to each happen to be in the same .clause of the will; to draw any conclusion from the mere ⁶⁵³ grouping of debts, expenses, and taxes in a single clause is, in fact, tantamount to giving one legal presumption precedence over another without instruction from the testator or other justification.

In reaching this determination, we are not unaware that, in addition to associating ourselves with the result reached by the small minority of the courts which have considered this issue, we might appear to some to be ignoring the legislature’s direction