Bernays v. Major , 344 Mo. 135 ( 1939 )

I am concurring in the result of this case because I believe the conclusion reached is correct. I think, however, that the case of In re Rogers' Estate, 250 S.W. 576, should be overruled. The facts in that case briefly are: Rogers died testate, leaving an estate of $683,000. He was survived by his widow and two children. The widow rejected the will and elected to take a child's share. The tax appraiser filed a report assessing a tax of $7,790. This court held that because she rejected the will and took a child's share she received nothing under the will and was not subject to pay any tax. Under the ruling of the case now before us, had this widow taken under the will she would have had to pay the tax.

When a widow rejects the will and elects to take a child's share she elects to stand on an equal footing with a child, and so far as she is concerned her husband died intestate and she takes by the Intestate Laws, as defined by Section 570, Revised Statutes 1929. If the logic in the Rogers opinion is followed, then a widow who does not take under a will, even though she receives $1,000,000, pays no tax. That the Legislature intended to tax only those widows who take property by virtue of a will is unthinkable. The result of the two cases is this: In the Rogers case we said that a widow taking a child's share amounting to over $200,000 need not pay any tax. The widow in this, the Bernays case, who received $80,000, must pay a tax on $60,000. If that is a correct interpretation of the statute, it is unconstitutional. However, I believe the statute may be interpreted so as to apply to all widows alike, and the Rogers case should be overruled. Bohling, C., and Leedy, J., concur.