The merits of this case were deferred pending disposition of the technical question raised and disposed of in
Estate of Edward Keyes Davis,
The testator assigned to the residue the total tax burden of the estatе. Since the widow’s share of the residue was not taxable, the probate court cast thе full assessment on the other three residuary *29 legatees. They are here, arguing that, since thе testator did not specifically exempt the widow’s portion of the residue, he intended that she bear a share of the taxes commensurate with her percentile share of the residue.
The practical effect of the ruling is to reduce the quite substantial shares of thе residuary legatees by amounts ranging from more than eleven to fifteen thousand dollars each. An opposite ruling would restore these amounts, but reduce the far larger widow’s fifty perсent share by about $45,600 and increase the estate’s tax burden by some $13,000.
The issue is raised by Article Fifth of the will, which reads:
“I direct that all inheritance, estate, legacy, transfer and succession taxes, State, Federal, Dominion or Provincial, or otherwise, whether imposed or assеssed under this Will or upon insurance, jointly held property or any other property passing or passed outside this Will be paid out of the residue of my estate as established by Article THIRD or Article FOURTH of this Will as the case may be, meaning and intending that no part of said taxes be apportioned among the legacies and devises under the other clauses of this Will, nor shall any contribution be required from a person receiving or who has received property outside this Will.”
As matters turned out, the residue was established under Article Third of the will:
“If my said wife, Dorothy H. McCoy, shall survivе me, I give, devise and bequeath all the rest residue and remainder of my estate, real and personal, wherever situated, including any property over which I have a power of appointment as follows:
(A) Fifty per cent (50%) to my wife, Dorothy H. McCoy, absolutely.
(B) Twenty per cеnt (20%) to my nephew, Robert S. McCoy, absolutely.
(C) Fifteen per cent (15%) to my nephew, Philip J. McCoy, аbsolutely.
(D) Fifteen per cent (15%) to my niece, Janet McCoy Barrett, absolutely.”
*30 It is argued on behalf of the widow that the result reached below is supported by certain presumed intentions which can justifiably be attributed to this testator. One is a presumption that a testator wishes to minimize the tax burden on his estate. The other is that he should be presumed to have intended that disposition most beneficial to his widow. Since it is clearly possible for a testator to have а contrary intent, we are obviously not dealing with conclusive presumptions.
Resort to prеsumed intentions is appropriate only in cases where the will leaves the matter truly in doubt. Thе language of the will will be the device by which the purposes of the testator are defined, if it can be given effect.
Tuttle
v.
Tuttle,
What of this will? It says the residue is to pay the taxes and is to be distrbuted according to certain percentage shares. It is conceded that there is no obstaclе to the mechanical implementation of these provisions. The objection is basеd on the simultaneous increased tax cost to the estate and reduction of the widow’s shаre.
On the other hand, to reach the result ordered by the probate court, favoring the widоw, additional distributive operations, not called for in the will, must be carried out. The widow’s share must be removed from the residue before the tax expense is deducted. This procedure nоt only puts the entire burden on the remaining residuary legatees, but renders impossible compliance with the percentage requirements set out in Article Third. Thus, violence is done to the express dispositions called for in the will.
This appears unnecessary and unjustified. Although the policy of our law favoring the widow is strong, we find it insufficient to overrule the express provisions of this instrumеnt.
In re Estate of Copeland,
Decree reversed and cause remanded to the probate court for the preparation of a new decree not inconsistent with the viezvs expressed in the opinion.
