The opinion
Mr. PRESIDING JUSTICE STOUDER, specially concurring:
I agree that Roe v. Farrell (1978), 69 Ill. 2d 525 , 372 N.E.2d 662 , applies the doctrine of equitable apportionment with respect to the payment of Federal estate taxes and that such precedent is ample authority for the result reached by the court with which I join.
However, I am constrained to note that we are extending the application of this doctrine without benefit of legislative authorization. In my judgment this subject matter is more appropriately dealt with by legislation so that the limits of the doctrine can be ascertained and described.
In Roe the court held nonprobate assets should bear their share of the Federal estate taxes. Are there not other expenses particularly those involving the administration of the estate, i.e., administrator’s fees and attorney’s fees involved both in probate matters and Federal tax return matters which might logically claim the right of apportionment?
In the instant case we have extended equitable apportionment to the exemption created for the surviving spouse where there has been an election to renounce under a will. I suppose that by way of analogy and again without legislative authority the same rule would apply if the decedent would die intestate leaving a surviving spouse or would apply where a testator left property by will to a surviving spouse describing such property in terms of a percentage of the estate. In this connection it should be noted that the Roe opinion is bottomed on the absence of any direction of the testator concerning the payment or the source thereof of Federal estate taxes. In renunciation cases as well as intestate cases, the statute is usually considered to be the source of determining the decedent’s intentions. To say that the statute does not prohibit or forbid an application of the doctrine of equitable apportionment suggests the necessity for legislation in this area to avoid the mischief that may result from the uncertainties on how far the doctrine is or should be applied.