State v. Hammerstrom

326 P.2d 699, 133 Mont. 469, 1958 Mont. LEXIS 101

Opinions

THE HON. GEORGE J. ALLEN, District Judge

(sitting in place of MR. JUSTICE BOTTOMLY).

‘This is an appeal by the State of Montana from an order and judgment of the district court of Yellowstone County, Montana, entered in the matter of the Estate of Alver Louis Hammerstrom, deceased, determining the inheritance tax payable o,% ¡account of his death. . •. .

At the time of his death, he was the owner of seven life insurance policies having a combined value of $25,151.92, and also the owner of two annuity policies having a combined value of $9,790.08, being payable upon his death to his wife, Elsie D. Hammerstrom. The value of the two annuity policies was excluded from the gross estate by the district court in determining the inheritance tax due to the State of Montana upon the distributive share of Elsie D. Hammerstrom. •

Appellant’s position is that, under section 91-4406, R.C.M. 1947, the court erred in excluding1 the whlue of the two annuity policies, even though the combined value of the seven life insurance policies and the two annirity policies totaled less than $50,000. R.C.M. 1947, section 91-4406, reads:

“All insurance payable upon the death of any person, over and above fifty thousand dollars ($50,000.00), shall be déemed a part of the property and estate, passing to the person pr persons entitled to receive the same and if payable to more than one person the said fifty thousand dollars ($50,000.00) exemp tion shall be prorated between such persons in proportion to the amount of insurance payable to each.”

The sole question presented by this appeal is whether or not the proceeds of the two annuity policies are included in the term “all insurance” as the term is used in section 91-4406, R.C.M. 1947.

In the case of In re Fligman’s Estate, 113 Mont. 505, 509, 129 Pac. (2d) 627, 629, this court considered the same question and decided it adversely to the appellant’s position, stating, “There are well reasoned cases cited from other jurisdictions on either side of the question, but we think the case at bar must be determined by the construction of our own statutes. The question is new in this jurisdiction. We think our statutes rather clearly show that annuity contracts must be classified under the general heading of insurance * *

Appellant admits such is the holding of this court in In re Fligman’s Estate, supra, but now urges this court to overrule such decision. This court considered precisely such a request by this appellant in In re Coleman’s Estate, 132 Mont. 339, 317 Pac. (2d) 880, 883, and refused it stating:

“However, appellant would have this court reverse its holding in In re Fligman's Estate, 113 Mont. 505, 129 Pac. (2d) 627, wherein it was held that annuity proceeds were exempt under R.C.M. 1947, section 91-4406. That case was decided in 1942. Eight legislative sessions have been held since the decision, and the legislature has not seen fit-to amend the statute. Estates and property have been planned and settled on the basis of the decision in the Fligman case, and if necessary to this decision, this court would treat that opinion as stare decisis

With this statement, we are in full accord. Judgment affirmed.

MR. CHIEF JUSTICE HARRISON, and MR. JUSTICE CASTLES, concur.