Alabama Code, 1940, as Amended: Title 16, Section 10; Title 34, Sections 42-43; Title 61, Section 18; Perrine's Executor v. Perrine, 35 Ala. 644; Merchants Nat. Bank of Mobile v. Hubbard, 222 Ala. 518, 133 So.2d 723; Dorsey v. Dorsey, 224 Ala. 496, 140 So.2d 540; Woodliff v. Dunlap, 187 Ala. 255, 65 So.2d 936; Steele v. Steele's Adm., 64 Ala. 438. The distributive share of a widow in the personal estate of her deceased husband is NOT a residuary estate under the laws of Alabama and it bears no part of the burden of the estate taxes. Davis v. Davis, 289 Ala. 313, 267 So.2d 158; Cox v. United States, 5 Cir., 421 F.2d 576; Snodgrass, as Administrator v. United States, D.C., 308 F. Supp. 440, 5 Cir., 427 F.2d 150; Robertson v. United States, D.C., 281 F. Supp. 955; First Nat. Bank of Topeka v. United States, D.C., 233 F. Supp. 19; Spurrier v. First Nat. Bank of Wichita, 207 Kan. 406, 485 P.2d 209; Pitts v. Hamrick, 4 Cir., 228 F.2d 486; Estate of Whipple v. United States, 6 Cir., 419 F.2d 494, D.C., 286 F. Supp. 674; Seymour National Bank v. Heideman, 133 Ind. App. 104, 178 N.E.2d 771; In re Burnett's Estate, 50 N.J. Super. 482, 142 A.2d 695. Even if the "distributive share" of the widow is, technically, a part of the residue of the estate, exceptions to general rules are made where necessary to preserve and protect the paramount right and estate of the widow in her distributive share in the estate of her deceased husband. Davis v. Davis, supra; Rowe v. Newman, 290 Ala. 289, 276 So.2d 412. There is no authority of law under which a court in which the administration of an estate is pending can convert a Proceeding for Final Settlement of the administration of the estate into an annual accounting and settlement. Bludworth and Wife v. White, Admr.
Trepidly, but nonetheless decisively, we conclude that Alabama would not cast the marital share to such a low estate. See Robertson v. United States, N.D.Ala. 1968, 281 F. Supp. 955; Snodgrass v. United States, N.D.Ala., 308 F. Supp. 440 (Nov. 12, 1968). We therefore hold that the court below erred when it held that Mrs. Cox's marital share should be charged with its proportionate amount of the federal estate tax.
In the case sub judice there was no intention on the part of Mr. Johns to make a gift to his wife — he did furnish the entire consideration for the stock and never gave up his claim to full ownership of the stock, albeit he did not press the point with his emotionally sick wife. She was not a beneficial owner of this stock as that term is used in Reg. § 20.2033-1(a). McCann v. Com'r of Internal Revenue, 87 F.2d 275 (6th Cir. 1937); Reed v. Com'r of Internal Revenue, 36 F.2d 867 (5th Cir. 1930); Robertson v. United States, 281 F. Supp. 955 (N.D.Ala. 1968). Nor did the veto power which Mrs. Johns was allowed to possess during her life constitute a general power of appointment under I.R.C. § 2041.
Riggs v. Del Drago, 317 U.S. 95, 63 S.Ct. 109, 87 L.Ed. 106. The Alabama appellate courts have not settled the issue as to who should bear the burden of the estate tax. This Court in Robertson v. United States, D.C., 281 F. Supp. 955, speaking through Judge Lynne, ruled that the Commissioner erred in reducing the marital deduction allowable for the computation of the estate tax by one-half of the estate tax. This part of the opinion was subsequently withdrawn, but the Court understands that it was withdrawn because of a settlement that ensued. Judge Johnson in the Middle District in the case of Cox et al. v. United States, D.C., 296 F. Supp. 145, has reached a different result.
Plaintiffs also raise the question decided today in Self v. United States, D.C., 147 F. Supp. 143, to-wit: was one third of the estate taxes assessed against the estate of decedent properly deducted from the marital share of the widow in computing the marital deduction? Plaintiffs here also put misplaced reliance on Robertson v. United States, 281 F. Supp. 955, N.D.Ala., Feb. 21, 1968. Although supporting plaintiffs' contentions, that opinion was written without benefit of either brief or argument by the Government.
This holding is consistent with Alabama statutes and with a long line of state and federal cases that hold that the widow's share of an estate shall not be burdened with estate taxes. Byars v. Mixon, 292 Ala. 657, 299 So.2d 259 (1974); Snodgrass v. United States, 308 F. Supp. 440 (N.D.Ala. 1968), aff'd, 427 F.2d 150 (5th Cir. 1970); Robertson v. United States, 281 F. Supp. 955 (N.D.Ala. 1968); Cox v. United States, 421 F.2d 576 (5th Cir. 1970); Grant v. United States, 340 F. Supp. 182 (M.D.Ala. 1971); Davis v. Davis, 289 Ala. 313, 267 So.2d 158 (1972); Rowe v. Newman, 290 Ala. 289, 276 So.2d 412 (1972). This is the rule whether the decedent died testate or intestate.
A federal court concluded that the widow's share has a priority, payable from the estate before specific, general and demonstrative bequests, and not from the residue. Robertson v. United States, 281 F. Supp. 955 (N.D.Ala. 1968). Also see Cox v. United States, 421 F.2d 576 (5th Cir. 1970), for the proposition that a widow's forced share has a priority under Alabama law.
We agree with this reasoning and join those courts which have held that a surviving spouse is entitled to the benefits of the marital deduction undiminished by any part of Federal estate tax liability. Estate of Whipple v. United States (6th Cir. 1969), 419 F.2d 494, 497-99 (applying Kentucky law); Dodd v. United States (3d Cir. 1965), 345 F.2d 715 (applying New Jersey law); Pitts v. Hamrick (4th Cir. 1955), 228 F.2d 486, 490 (applying South Carolina law); Robertson v. United States (N.D. Ala. 1968), 281 F. Supp. 955, 963 (applying Alabama law); In re Estate of Collins (D.D.C. 1967), 269 F. Supp. 633 (applying Federal law); First National Bank v. United States (D. Kan. 1964), 233 F. Supp. 19, 27-29 (applying Kansas law); Weyenberg v. United States (E.D. Wis. 1955), 135 F. Supp. 299, 303 (applying Wisconsin law); Byars v. Mixon (1974), 292 Ala. 657, 659-60, 299 So.2d 259, 260-61; In re Estate of Marks (1974), 129 N.J. Super. 276, 283-85, 322 A.2d 860, 864-65; Alexandria National Bank v. Thomas (1973), 213 Va. 620, 624-26, 194 S.E.2d 723, 726-27; Clark v. South Carolina Tax Com. (1972), 259 S.C. 161, 167-70, 191 S.E.2d 23, 25-26; Stoner v. Custer (1969), 252 Ind. 661, 668, 251 N.E.2d 668, 672; In re Estate of Rosenfeld (1954), 376 Pa. 42, 101 A.2d 684; Lincoln Bank Trust Co. v. Huber (Ky.App. 1951), 240 S.W.2d 89; see also First Trust Co. v. United States (D. Minn. 1975), 402 F. Supp. 778, 781-83 (applying Minnesota State inheritance tax law). Plaintiffs Lyman Fleming and Virginia Prosser, as remainde
Mamalis v.Bornovas, 112 N.H. 423, 297 A.2d 660 (1972); Wardlow v. Pozzi, 170 Cal. App. 2d 208, 338 P.2d 564 (1959); O'Connor v. Dickerson, 188 So.2d 241 (Miss. 1966); Robertson v. United States, 281 F. Supp. 955 (N.D. Ala. (1968)). [4] The district court and the court of appeals properly applied these tenets to the facts of this case.
Nor is there evidence that they at any time intended to sever the joint tenancy in either the realty or the savings accounts. See generally Robertson v. United States, 281 F. Supp. 955, 960-62 (D.C.Ala. 1968); Williams v. Dovell, supra, 202 Md. at 358, 96 A.2d at 487-88. The partnership assets became Lulie's by right of survivorship on Waverly's death, and were subject to the District of Columbia inheritance tax as part of her estate.