Jenkins v. United States - 428 F.2d 538 (5th Cir. 1970)

Rule:

The assent of the executor may be express or may be presumed from his conduct. Assent should be evidenced by a conveyance of realty or tangible personalty or by an assignment or transfer of a chose in action. In the absence of a prior assent, the discharge of the executor shall be conclusive evidence of his assent. If no assent has been given within one year after the executor has qualified, a devisee or legatee may cite the executor in the court of ordinary to show cause why his assent should not be given or may compel him to assent by an equitable proceeding. The executor may not, by assenting to legacies, interfere with the rights of creditors, nor can he, by capriciously withholding his assent, destroy the legacy. Ga. Code Ann. § 113-802.

Facts:

The instant case was based on the deaths of two sisters, Ada Lee and Martha Jenkins, who were both unmarried and lived together in Midland, Georgia. On December 23, 1958, both sisters, who were then in their seventies, executed wills. These wills were very similar in wording and provisions, each sister leaving the other a life estate coupled with a power of invasion or consumption over the testatrix's property. On September 24, 1962, Ada Lee Jenkins died. Shortly after her sister's death Martha O. Jenkins decided that she did not wish to serve as executrix under her sister's will, and on October 4, 1962, she executed a document renouncing her designation as executrix. She apparently took no other action with regard to the will of her sister. Although she had previously been in good health, on October 10, 1962, Martha suffered a heart attack, and on the following day she died. Because of the short period of time between the deaths of the two sisters, Ada's will had not been probated at the time of Martha's death. The wills of both sisters were filed and admitted for probate on October 25, 1962. Two nephews of the sisters, Alonzo Wimberly Jenkins, Jr., and McLendon Wash Jenkins, qualified as the executors of both estates. The will of Ada Lee Jenkins contained several provisions leaving her surviving sister a life estate coupled with a power of invasion or consumption over certain real and personal property located in Muscogee County, Georgia. Each of the relevant provisions of the will included language substantially identical to the following: "Should my sister, Martha O. Jenkins, survive me, then in that event, I give, bequeath and devise to Martha O. Jenkins all my right, title and interest in and to * * * [certain named property] * * * to have, hold, use and enjoy for and during her natural life, with full and unlimited power and authority to dispose of the same in fee simple by gift or otherwise at any time during her life without accountability to anyone, x x x.” These provisions of the will led to a disagreement between the Commissioner of Internal Revenue and the executors of the estate of Martha O. Jenkins as to the amount of estate taxes due. When the executors computed and filed an estate tax return for the estate of Martha O. Jenkins, they excluded from her gross estate the value of the property in which she received a life estate with powers of invasion by her sister's will. The Commissioner, however, ruled that the value of this property must be included because Martha's powers of invasion constituted a general power of appointment over such property. After paying the additional estate taxes required by the Commissioner's ruling, the executors filed a claim for a refund. When this claim was disallowed, the executors filed suit in the United States District Court for the Middle District of Georgia, seeking a refund in the amount of $26,962.73. The district court ruled in favor of the executors, granting their contentions that Martha did not have a general power of appointment because she could dispose of the property only inter vivos and not by will, and that Martha did not possess an exercisable general power of appointment at the time of her death because Ada's will had not yet been probated.

Issue:

Did the trial court err in ruling that Martha did not possess an exercisable general power of appointment at the time of her death because the will of Ada Lee Jenkins had not then been probated or filed or offered for probate?

Answer:

Yes.

Conclusion:

At the outset, there is no language in the will itself which evidences a desire on the part of Ada that Martha's possession of the power of appointment was to be postponed until some time after Ada's death. On the contrary, the relevant provisions of the will are couched in terms of the moment when Martha survived Ada, i. e., the moment of Ada's death. The district court capitalized too much on a provision of the will which provided, “"Upon the probate and admission to record of this my will, x x x.” The appellate court, however, disagreed with the districtcourt's apparent conclusion that these words expressed a desire on the part of the testatrix to postpone her surviving sister's possession of the power of appointment. On the contrary, when these words are read in the context of the entire sentence, it was clear that they have reference only to the procedure of probating the will, and not to the timing of the passage of the power of appointment to Martha O. Jenkins. Moreover, there was nothing in Georgia law which could lead to a conclusion that Martha's possession of the power would have been postponed until probate or until any other point in time later than the death of Ada. In the absence of any contrary provision in the will itself, it was clear that Martha received an exercisable general power at the moment of Ada's death.