Riddle v. Commissioner
This text of 21 T.C. 1109 (Riddle v. Commissioner) is published on Counsel Stack Legal Research, covering United States Tax Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
OPINION.
The question presented is whether petitioner’s decedent made a valid charitable bequest under Pennsylvania law so as to entitle petitioner to a deduction in estate tax under section 812 (d) of the Internal Revenue Code.2 The Pennsylvania statute,3 applicable to the instant proceeding, provides that bequests for religious or charitable uses made by will executed less than 30 days prior to the testator’s death “shall be void and go to the residuary legatee or dévisee, heirs or next of kin, according to law.”
The decedent’s second will executed on December 18,1946, contained an express clause revoking all former wills, and was a complete will within its own four corners, was free from ambiguity and required no reference to a prior will. Under such circumstances it is well settled that the 1946 will absolutely revoked the 1945 will. In re Gray's Estate, 365 Pa. 411, 76 A. 2d 169; In re Burtt's Estate, 353 Pa. 217, 44 A. 2d 670; In re Hartman's Estate, 320 Pa. 321, 182 Atl. 234; In re Ford's Estate, 301 Pa. 183, 151 Atl. 789.
The decedent died December 25, 1946, less than 30 days after executing her will of December 18, 1946. The bequest to the Ned Cross contained therein was therefore void by operation of law, and the charity takes nothing even though the bequest to it contained in the second will was identical with that contained in the revoked 1945 will. In re Hartman's Estate, supra; In re Hofner's Estate, 161 Pa. 331, 29 Atl. 33; Price v. Maxwell, 28 Pa. 23 (1857). Accordingly, had the decedent died between the time she executed her second will on December 18 and her codicil on December 20, 1946, the bequest to the Red Cross would have been void.
Petitioner contends that as a result of the codicil executed on December 20,1946, the absolute revocation of the 1945 will contained in the 1946 will was transformed into a conditional revocation and, since the condition of survival for 30 days was not fulfilled, the revocation clause of the 1946 will never became operative. In support of this contention petitioner relies on Hamilton's Estate, 74 Pa. 69 (1873), and Bradish v. McClellan, 100 Pa. 607 (1882).
We are of the opinion that the case before us is distinguishable on its facts from Hamilton's Estate, supra, and Bradish v. McClellan, supra. Furthermore, the rationale underlying those cases appears to have been repudiated by later Pennsylvania decisions. In re Gray's Estate, supra; In re Burtt's Estate, supra. See also In re Ford's Estate, supra. We think the settled rule is that a will complete on its face and not requiring reference to a prior will, containing inconsistent provisions as well as an express clause of revocation, revokes the prior will and the latter cannot be made effective as of the date of its execution by a later codicil to the second will. In re Hartman's Estate, supra; In re McClure's Estate, 309 Pa. 370, 165 Atl. 24; In re Melville's Estate, 245 Pa. 318, 91 Atl. 679; and Price v. Maxwell, supra.
Petitioner further contends that even if the 1946 will revoked the 1945 will the codicil and the 1945 will must be read together, arid that if it was the intention of the decedent that the date of republication be the date of execution of the 1945 will, then such intention is controlling. Such rule may be controlling as to the effect of the codicil of an existing valid will to which it is a codicil. In re Spangenberg's Estate, 359 Pa. 353, 59 A. 2d 103; In re Hartman's Estate, supra; In re Bingaman's Estate, 281 Pa. 497, 127 Atl. 73; In re Edward's Estate, 254 Pa. 159, 98 Atl. 879. Here, however, the codicil of December 20, 1946, was not to the 1945 will but rather, by its own terms, a codicil to the 1946 will. At the time the codicil was executed the first will was revoked, null and void, and depended upon the execution of the codicil to the 1946 will for its existence and validity under the doctrine of republication. The charitable bequest effected by the codicil to the 1946, will, having been executed within 30 days before death, was also null and void as a result of tbe Pennsylvania statute. The combination of these two nullities cannot effect a valid charitable bequest. If without the codicil there would have been no gift or bequest, since clearly the gift under the 1946 will was void, the conclusion is inescapable that the gift was made by the codicil and is, therefore, void. Kuntz's Estate, 77 Pa. D. & C. 337 (1950).
Accordingly, we hold that the bequest to the Red Cross, being void under Pennsylvania law as having been made less than 30 days before death, is not allowable as a deduction in estate tax under section 812 (d) of the Internal Revenue Code. Estate of William A. Carey, 9 T. C. 1047, affd. 168 F. 2d 400; Lancaster Trust Co., Executor, 3 B. T. A. 298; and Selig v. United States, 73 F. Supp. 886, affd. 166 F. 2d 299. Such a bequest is void and not merely voidable. Estate of Melusina H. Varick, 10 T. C. 318, and Estate of William A. Carey, supra.
Decision will be entered for the respondent.
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21 T.C. 1109, 1954 U.S. Tax Ct. LEXIS 257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riddle-v-commissioner-tax-1954.