dissenting.
I dissent. I would affirm the order of the District Court in which the court determined that the language in the will was not sufficiently clear so as to override the statutory directive in § 72-16-603, MCA, concerning the apportionment of state inheritance taxes.
Under the common law, the residuary estate was obligated to pay the death taxes. Appellants argue that in this situation the residuary estate should pay the state inheritance taxes. This would greatly benefit appellants in that they can avoid paying at the higher rate *375which would be required if all the heirs paid the state inheritance taxes at their individual rates. However, the legislature, for good reason, has changed the method of payment of taxes that existed under the common law. They provided, in § 72-16-603, MCA, that:
(1) Except as provided in subsection (3) and unless the will otherwise provides, the tax shall be apportioned among all persons interested in the estate. The apportionment is to be made in the proportion that the value of the interest of each person interested in the estate bears to the total value of the interests of all persons interested in the estate.
(2) If the decedent’s will directs a method of apportionment of tax different from the method described in this part, the method described in the will controls.
The strong policy arguments in support of this change in the common law were explained in the case of New York Trust Co. v. Doubleday (Conn. 1956), 128 A.2d 192. In Doubleday, the testator’s children from a previous marriage sought to benefit from his widow’s marital exemption by paying taxes out of the residuary estate prior to dividing it between the parties. This is exactly what appellants are attempting to do in this situation. In finding in favor of apportionment, and allowing the widow the full value of her exemption, the court stated:
Only through the allocation of the entire amount of the marital allowance to the value of the widow’s bequest will the intent as well as the spirit of the proration statute be met, for the statute is based on the equitable principle that the estate taxes should be borne by those whose bequests contribute to the tax burden and, conversely, that all those whose legacies do not in any way create or add to that burden should not be required to bear it.
Doubleday, 128 A.2d 196-97.
While § 72-16-603(2), MCA, permits the results argued for by appellants in this case, it is clear that the direction of the statute in favor of apportionment and the policy reasons which led to the enactment of the statute, require clear and unambiguous language to override the statutory directive in favor of apportionment. The language in this will which appellants contend expresses the testatrix’s desire to avoid apportionment pursuant to § 72-16-603, MCA, is less than clear and unambiguous.
The language in this will is similar to the language in the will in In Re Ogburn’s Estate (Wyo. 1965), 406 P.2d 655. In Ogburn, the will *376read “I direct the payment of all my just debts, taxes, funeral expenses and expense of administration of my estate.” Ogburn, 406 P.2d at 657. The Wyoming Court initially set out the difference between federal estate taxes and state inheritance taxes. Federal estate taxes are taxes upon the estate for the privilege of transferring the property upon death. State inheritance taxes are not taxes upon the estate at death, but rather are taxes which are the burden of the recipients of the testatrix’s bounty. Under this analysis the phrase in the will “all my just ... taxes” was construed to include only the federal estate taxes. The language used was simply insufficient to override the apportionment statute as to the state inheritance taxes. The Wyoming court stated that:
Practically all of the cases agree that a directive against apportionment should be expressed in clear and unambiguous language .... In case of doubt the burden of the taxes must be left where the law places it. [Citation omitted.] It has been said that a sufficient tax clause should expressly state “(1) what gifts or beneficiaries are freed of the burden of taxes, (2) what taxes are affected, and (3) where the burden of taxes is shifted.”
Ogburn, 406 P.2d at 657-58.
The District Court found that this criteria was not met and that the intent of the testatrix was not clear from the language used in the will. The will states that the personal representative is directed to pay “all taxes both state and federal which become payable by reason of my death, out of my estate.” State inheritance taxes are imposed upon the recipients of the property for the privilege of receiving that property.
There is no language in the will that clearly and unambiguously sets forth any authority on the part of the personal representative to pay taxes other than by apportionment. When, as here, there is ambiguity and doubt as to the intent of the testatrix, the burden of the state inheritance taxes should remain were the law places it. It appears that the majority opinion here requires a surviving spouse to show that any bequest to any other person is not to be apportioned, rather than the other way around — the other way around being the intention of the legislature to change the common law that required that inheritance taxes be paid from the residual estate.
I would affirm the District Court.