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NEAMAND ESTATE (04/23/74)

decided: April 23, 1974.

NEAMAND ESTATE


Appeals from decree of Court of Common Pleas, Orphans' Court Division, of Bucks County, No. 40541, in re estate of Vincent Neamand, deceased.

COUNSEL

Robert J. Stern, with him Richard F. Stern, Charles M. Marshall, and Stern, Maxmin & Stern, for appellants.

Robert W. Valimont, with him Power, Bowen & Valimont, for appellees.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Eagen dissents.

Author: Roberts

[ 456 Pa. Page 24]

This case presents the issue whether a surviving spouse who elects to take against her husband's will is to have the benefit of a pay-tax clause in that will. The Orphans' Court Division of the Court of Common Pleas of Bucks County answered the question affirmatively. Neamand Estate, 24 Bucks County L. Rptr. 221 (Pa. O.C. 1973). We agree and affirm.

Vincent Neamand died September 1, 1967, survived by his wife Janet Neamand (appellee here) and two children, Constance J. and David Vincent. His will, properly admitted to probate, made certain specific bequests, and set up a marital deduction trust for his wife and a residuary trust for his children. Testator named as executors of his estate and trustees of the two trusts, his wife, his attorney, and the Girard Trust Bank.

Janet Neamand, however, elected to take against the will.*fn1 The executors (Girard Trust dubitante) awarded her one-third of the estate without deducting any sum for inheritance or estate taxes. The executors' proposed distribution was predicated on Item 12th of testator's will, a pay-tax clause, which provides: "Twelfth: All federal, state, and other death taxes payable, because of my death, with respect to the property forming my gross estate for tax purposes -- whether

[ 456 Pa. Page 25]

    or not it passes under this Will -- shall be paid out of the principal of my general estate as if they were my debts, so that the full burden of such taxes shall fall upon my residuary estate passing under Article Seventh hereof, and no part of such taxes shall be charged against the gifts under other Articles of this Will or against any beneficiary. All such taxes on present or future interests shall be paid at such time or times as my Executors or my Trustees may think proper, regardless of whether such taxes are then due." The two children objected,*fn2 their objections were overruled, and this appeal ensued.*fn3

Two questions inhere in our resolution of this appeal. Is it within a testator's power to direct that his residuary estate pay the taxes due on the surviving spouse's elective share? Did Vincent Neamand by appropriate language so direct?

The statutory scheme surrounding a spouse's elective share strongly suggests that a testator may relieve his or her surviving spouse's elective share from tax liability. Appellee's right to take against the will was ...


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