7 Or. Tax 288 | Or. T.C. | 1977
Submitted on briefs.
Decision for defendant rendered December 16, 1977.
The plaintiff has appealed from defendant's Order No. IH 77-5, dated June 28, 1977. In that order the defendant determined that plaintiff owed additional inheritance taxes in the sum of $7,890.51, based upon defendant's findings (a) that the remainder interest of the decedent, Ethel Leona McGee, in a testamentary trust created by her deceased father's will was vested *290
and therefore taxable and (b) that the estate's claim of farm use values under ORS
The decedent's father, Walter Withers, signed his will in April 1966 and died testate in 1970. The pertinent parts of his will read:
"THIRD: I devise and bequeath unto my said wife, EDNA G. WITHERS, if she survives me, an amount equal to fifty percent (50%) of the value of my adjusted gross estate * * *.
"FOURTH: If my wife shall survive me, I give, devise and bequeath all of the rest, residue and remainder of my estate, real, personal or mixed, and wheresoever the same may be situated, to my daughter, ETHEL LEONA McGEE, IN TRUST NEVERTHELESS, to hold, manage and distribute as hereinafter set forth.
"1. The principal and income of the trust estate shall be distributed as follows:
"(a). After paying or reserving sufficient money to pay any expenses of management * * *, all income from the trust estate * * * shall be distributed to or for the use and benefit of my wife, EDNA G. WITHERS, during her lifetime. * * *
"(b). If the trustee deems the net income payable hereunder not sufficient * * *, my trustee may apply to the appropriate Court for an order authorizing my trustee to apply for the use and benefit of my wife such additional part, up to and including the whole thereof, of principal of the trust estate as shall be deemed necessary.
"2. Upon the death of my wife, or upon distribution of my estate if she should predecease such event, the trustee shall apportion the trust estate, * * * into two equal shares as follows:
"(A). One share for my grandson, GARY EARL McGEE, to the UNITED STATES NATIONAL BANK OF OREGON, Burns, Oregon, IN TRUST NEVERTHELESS, * * *.
"* * * * * *291
"(B). The remaining one share to my daughter, ETHEL LEONA McGEE. Should my daughter, ETHEL LEONA McGEE, fail to survive me, then I direct that her share shall become part of the trust hereinabove created for my grandson, GARY EARL McGEE, to be administered and distributed on the same terms and conditions as herein set forth."
If Ethel had a vested interest in her father's estate, it would pass, under her will, to "that certain Trust known as the Withers-McGee Trust created on the 21 day of November, 1975, and naming JACK McGEE as Trustee." In her will, Mrs. McGee named herself as the wife of Jack McGee and stated that the two were parents of the son, Gary.
The defendant, in support of its order, contends that the decedent, Ethel McGee, having survived her father, had a vested interest in his estate at the time of her death, (a) even though she predeceased the life tenant and (b) regardless of the power of the trustee to invade the principal of the trust estate for the benefit of the life tenant, if deemed necessary by the trustee and approved by court order.
The plaintiff contends that Ethel McGee's interest was contingent because of the provision in Mr. Withers' will, allowing the trustee to invade the principal of the trust on behalf of Mrs. Withers, and that the language of Mr. Withers' will indicates the testator's intent that, upon Ethel's death, the interest should go to her son, a situation described by the plaintiff as a "lapsed legacy," citing ORS
[1, 2.] Whether a remainder is contingent or vested is an old and difficult problem. Courts have always *292
sought to carry out the testator's intent, if lawful. And, for a long period, courts have held that, in case of doubt, the presumption should favor vesting. Stevens v. Carroll. In reStevens,
[3.] "Vesting" occurs when the gift is made to an ascertained person, subject to no condition other than determination of a precedent estate. Stevens v. Carroll, supra; Warren v. Hembree,
[4.] In Stevens v. Carroll, supra, where a testator devised all his real property to his wife for life, directing that part of it should be sold at her death and out of the proceeds a legacy should be paid to his daughter, the interest of the daughter in the legacy vested at the death of the testator and her death prior to that of the widow did not cause a lapse of her legacy (which was thus enforceable in favor of her heirs). The court held that if payment is postponed for no reason personal to or in the interest of the legatee, but solely for the benefit of the widow's life estate, the remainder is vested.
[5, 6.] Hawkins Roberts v. Jerman,
Morse et al v. Paulson et al,
[7, 8.] Williamson v. Denison and Groves,
In the Williamson case, supra, the residual estate was to be held in trust for the period of the successive lives of the testator's widow and of his daughter, with power in the trustee to invade the principal on behalf of each of the successive income beneficiaries. After the deaths of the wife and the daughter, the estate was to be divided into equal shares, one each to granddaughter B and to granddaughter M. The testator died January 1, 1929, and his widow died September 16, 1938. Granddaughter M died intestate January 19, 1944, leaving a spouse. The daughter of the taxpayer died February 15, 1947. The question then presented was whether M's spouse had an interest in the estate *294 or whether granddaughter B was entitled to the whole thereof. The representative of B argued that M's spouse could not take inasmuch as M had only a contingent remainder growing out of the fact that the trustee could invade the principal for the prior life beneficiaries. The court pointed out that this was not the test of a vested remainder since the valuation of the estate distributable at a given time (which is the question posed by the possibility of invasion of principal) can be and often is indefinite up to the time of distribution. Hence there was a vested interest in granddaughter M which was inherited by M's spouse. (The case of Morse v. Paulson, supra, is distinguished, since the will in that case postponed vesting until the time for distribution of the trust.)
[9.] A study of the effect of the invasion of the trust principal for the life tenant is found in 131 A.L.R. 713, 715, Part III, a, 1 (1941), and this also concludes that the possibility that there may be nothing left to the remaindermen does not make the remainder a contingent one, but leaves it vested, subject to defeasance by the exercise of the power.
[10, 11.] In the more recent case of Browning v. Sacrison,
"* * * It is true that the reasons which prompted the creation of the rule favoring early vesting no longer obtain. Nevertheless, early vesting still may be desirable for other reasons which have application today. On the other hand, the factors supporting early vesting must compete against other factors favoring the postponement of vesting. All of the factors 'must be given their respective weights in the ultimate determination of the judicially ascertained intent of the conveyor.' " [Footnotes omitted.]
The court indicates (
From the foregoing it will be seen that plaintiff's contention that a contingent remainder must be found if a life estate can invade the principal of the trust is not supported by the authority.
Plaintiff's reliance on ORS
The intention of Mr. Withers to prevent his son-in-law's enjoyment of the use or benefit of the property is not to be found in Mr. Withers' will nor in the parties' stipulation of facts and is therefore disregarded. (The court in Browning,supra,
The plaintiff's brief refers to the provisions of Mr. Withers' will excluding creditors of devisees, page 5, paragraph b (Pl Ex 1), which states:
"b. The interest of any beneficiary in the principal or income of these trusts shall not be subject to the claims of his or her creditors, or others, or liable to attachment, execution, or other process of law, and no beneficiary shall have any right to encumber, hypothecate or alienate his or her interests in these trusts in any manner. The trustee may, however, deposit in any bank designated in writing by a beneficiary to his or her credit, income or principal payable to such beneficiary."
Plaintiff concludes from this: "Therefore, it would appear that nothing could have vested in the decedent [Ethel] as long as her mother [Edna] was alive which *296 she still is, See Am Jur 2nd Trust 152." (Pl Br, 5-6.) The citation is not in point for the purposes of this suit and plaintiff's conclusions are not supported thereby.
The court finds that a vested interest in the designated portion of the trust principal was created upon the death of Mr. Withers for the benefit of Ethel, with enjoyment postponed throughout the life of Mrs. Withers. The language, read with the rest of the will, is clear: "The remaining one share to my daughter, ETHEL LEONA McGEE." The beneficiary is certain, the gift is specific, the time is precisely ascertainable (in due course). The only limitation found in the will is not applicable; i.e., "[s]hould my daughter, ETHEL LEONA McGEE,fail to survive me [the testator, Mr. Withers] * * *." (Emphasis supplied.) Ethel did survive her father.
The second issue relates to the value to be placed upon certain farmland included within the decedent's estate.
ORS
"Interests in real property passing by reason of death that had received special assessment as farm use land under subsection (1) of ORS
308.370 shall be valued at its value for farm use determined by the assessor under subsection (1) of ORS308.370 as of January 1 of the year of the death of the decedent."
ORS
"* * * Land within such zones shall be used exclusively for farm use except as otherwise provided in ORS
215.213 . * * *"
ORS
"(1) The following nonfarm uses may be established *297 in any area zoned under ORS
215.010 to215.190 and215.402 to215.422 for farm use:
"(a) Public or private schools.
"(b) Churches.
"(c) The propagation or harvesting of a forest product.
"(d) Utility facilities necessary for public service, except commercial facilities for the purpose of generating power for public use by sale.
"(e) The dwellings and other buildings customarily provided in conjunction with farm use, * * *.
"(f) Operations for the exploration of geothermal resources * * *."
ORS
"(2) The following nonfarm uses may be established, subject to the approval of the governing body of the county, in any area zoned * * * for farm use:
"(a) Commercial activities that are in conjunction with farm use.
"(b) Operations conducted for the mining and processing of geothermal resources * * *.
"(c) Private parks, playgrounds, hunting and fishing preserves and campgrounds.
"(d) Parks, playgrounds or community centers * * *.
"(e) Golf courses.
"(f) Commercial utility facilities for the purpose of generating power for public use by sale.
"(g) Personal-use airports for airplanes and helicopter pads, * * *."
Subsection (3) of ORS
The department, in its written opinion (see exhibit with Complaint) concluded that an examination of the Harney County ordinance shows that the uses permitted outright in the county's A-1 zone came within the requirements of ORS
Although the Harney County zoning regulations as provided by an ordinance adopted by the county court on October 20, 1971 (Pl Ex 3), states that "[i]t is intended that land within the agricultural zone [zone A-1] be used exclusively for farm use as the term is defined in this ordinance * * *" it continues:
"(2) Conditional Uses Permitted. In an A-1 zone, the following uses and their accessory uses are permitted when authorized in accordance with the requirements of Article 2.
"(a) Commercial airports and airfields.
(b) Hospital, nursing or retirement home.
(c) Kennel or animal hospital.
(d) Public use or building other than those allowed as an outright use.
(e) Residential and recreational subdivisions, including but not limited to nonfarm single family dwelling and two family dwellings, including a mobile home on an individual lot(s).
(f) Mobile home park.
(g) Mining, quarrying, thermo-development, oil/or gas drilling or other extraction activity, including the processing or refining of ore or other raw material.
(h) Commercial or industrial activity directly serving farm operations, including the preparation and storage of farm products.
(i) Commercial livestock feeding yard.
(j) Commercial auction sales yard.
(k) Garbage dump or other solid waste disposal site and junk yards.
(l) Outdoor advertising signs permitted by ORS Chapter 377; provided however, that such signs may not be erected or maintained within 100 feet of an occupied dwelling without the written consent of the owner of the property.
(m) Recreational areas.
(n) Storage and disposal of chemical products, chemical wastes or radio active wastes.*299
(o) Slaughter houses.
(p) Power generating plants.
(q) All other uses not permitted outright."
Clearly, these conditional uses go beyond the scope, spirit and intent of ORS
The defendant's opinion, at 3, then continues:
"* * * Petitioner argues the procedures to obtain a conditional use are as strict or the same as those to obtain a zone change so that the words 'conditional uses' in the ordinance is [sic] a misnomer and the ordinance actually permits no conditional uses. A zone is created by a legislative judgment of public need for various uses of property. A zone change is a complete deviation from that legislative judgment. The granting of a conditional use is not a deviation from the ordinance, but is in compliance with it. Kristensen v. City of Eugene Planning Commission,24 Or. App. 131 ,544 P.2d 591 ,593 (1976). Regardless of the application procedures necessary to the granting of a conditional use, it remains just that, a conditional use granted by ordinance. It does not constitute a zone change. The zone remains the same, but includes a conditional use not contemplated or permitted by ORS215.213 ."
The defendant also cites State ex rel. Skelly Oil Co. v.Common Coun., Delafield,
[12.] Plaintiff argues that ORS
[13, 14.] The defendant's arguments are the more persuasive. A conditional use and a zone change are substantially dissimilar in purpose, nor are they made *300
the same because the same procedures are required to effect a change. A departure in the county's ordinance, permitting uses foreign to those authorized by the legislature, in derogation of the chief legislative intention to create a zone of farm uselands, cannot be encouraged or approved. Since the ordinance does not come within the requirements of ORS
The defendant's Order No. IH 77-5 is affirmed and the Estate of Ethel Leona McGee shall pay the inheritance tax deficiency as required by statute and the defendant's order.
No costs to either party. *301