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303 (Mo. 1964); Hammond v. Wheeler, 347 S.W.2d 884 (Mo. 1961);
Carpenter v. Carpenter, 267 S.W.2d 632 (Mo. 1954). “The doctrine
of equitable apportionment places the burden of the federal
estate tax on the property that generates the tax and exonerates
from the burden the property which does not.” Estate of Boder v.
Albrecht Art Museum, supra at 78-79 (citing Jones v. Jones, 376
S.W.2d 210, 212 (Mo. 1964)).
In the notice of deficiency, respondent determined that
decedent intended 50 percent of her Federal and Missouri estate
taxes (exclusive of GST tax) to be paid out of the charitable
bequest and the other 50 percent to be paid out of the bequest in
trust for her grandchildren. For the first time on brief,
respondent has abandoned this position in favor of a new theory:
respondent now argues that decedent intended the estate taxes to
be paid entirely out of the charitable bequest to the Lubin-Green
Foundation. The estate argues that decedent’s will contains no
clear expression of intent regarding the allocation of estate
taxes, and, therefore, the doctrine of equitable apportionment
requires an allocation of all estate taxes to the property
passing in trust to decedent’s grandchildren.
Decedent’s will states, in relevant part, that decedent
directs her personal representative “to pay, out of my estate,
all transfer, estate * * * and other death taxes (exclusive of
any generation-skipping transfer tax)”. The will goes on to
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