Opinion
No. 3446.
Decided March 7, 1944.
Whether inheritance or succession taxes are a charge against the estate or are to be deducted from the several legacies is a question of intention. Where the opening clause of a will states that "Subject to the payment of my just debts . . . including the payment of all estate, succession, legacy or inheritance taxes . . . I give, devise and bequeath" certain bequests, the words "subject to the payment of" are construed to mean "after the payment of," and any inheritance tax is therefore a charge against the estate.
PETITION, for instructions as to the meaning and intent of the will of Pauline B. Bradford. The following question was transferred without ruling by Lorimer, J. "The question is transferred to the Supreme Court without ruling whether the inheritance tax of the State of New Hampshire should be deducted from each of the pecuniary and specific legacies or should be paid from the residuary estate."
The opening clause of the will of Pauline B. Bradford reads as follows: "Subject to the payment of my just debts, funeral and administration expenses, including the payment of all estate, succession, legacy or inheritance taxes or taxes of a like nature which may become due by reason of the provisions of my will and whether imposed by the laws of the United States or of any of the States or of any other jurisdiction, I give, devise and bequeath as follows:" Then follow sundry pecuniary and specific bequests to certain of the defendants, and the 8th clause of the will provides as follows: "I direct my executor to divide all the rest, residue and remainder of my estate, of whatsoever nature into as many shares as there are sisters of mine and children of deceased sisters and brothers of mine surviving me and to pay and distribute one of said shares to each of my said living sisters and children of deceased sisters and brothers." The executor prays for instructions as to "Whether the legacies to the said defendants should be paid in full free of any tax, or whether the inheritance tax which has been levied on said legacies by the State of New Hampshire should be deducted from each of the pecuniary legacies and collected from the recipients of the specific legacies."
John L. Mitchell, for the plaintiff, furnished no brief.
Evans, Pierce Campbell (of California), for certain defendants claiming pecuniary legacies.
Charles H. Batchelder, for the residuary legatees.
"Whether inheritance or succession taxes are a charge against the estate or are to be deducted from the several legacies, is a question of intention." Kingsbury v. Beazely, 75 N.H. 13. The executor is advised that in the opinion of a majority of the Court it was the intention of the testatrix that the inheritance tax of the State of New Hampshire should be paid from the residuary estate. We think that the opening clause of the will indicates an intention on the part or the testatrix that the pecuniary and specific legatees should receive their legacies in full without deduction for taxes. This clause is in the nature of an instruction to the executor to pay debts, funeral expenses and expenses of administration, etc. which, under common practice in this State is usually stated in positive form rather than by indirection as in this case. Stated in positive form, the clause in question might well have read: "I direct my executor, hereinafter named, to pay my just debts, funeral and administration expenses, including the payment of inheritance, legacy and succession taxes," etc. No doubt could be entertained as to the meaning of such a clause, and we think that the language used is equivalent thereto in legal effect.
It is argued on behalf of the residuary legatees that the language of the will "is merely a recognition that such (taxes) must be paid either by the estate or the individual legatees and leaves the burden of each liability where the law places it." We are unable to accept this view. We think that the testatrix, by the clause in question, intended to do more than give recognition to the fact that inheritance taxes must be paid by someone. She intended to indicate who should pay them. In short, as argued on behalf of the pecuniary legatees, the words "subject to the payment of" are construed to mean "after the payment of."
Case discharged.