U.S. Court of Appeals for the Ninth Circuit, 2004

Sowder v. United States

U.S. Court of Appeals for the Ninth Circuit · Decided August 18, 2004 · Hug, Paez, Tashima

107 F. App'x 95

Opinion of the Court

MEMORANDUM *

The United States appeals an order of the district court granting summary judgment in favor of Plaintiff/Appellee Marie Sowder, executrix of the estate of Tony R. *96Sowder. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand.

The district court denied the government’s Federal Rule of Civil Procedure 56(f) motion seeking discovery regarding the decedent’s intent.1 We agree with the government that it should have the opportunity to conduct discovery in order to rebut the affidavits submitted by the estate. See Wash. Rev.Code § 11.108.010(4) (defining a marital deduction gift as “a gift intended to qualify for the marital deduction as indicated by a preponderance of the evidence including the governing instrument and extrinsic evidence whether or not the governing instrument is found to be ambiguous”). We therefore reverse the judgment of the district court and remand to the district court to permit the government to conduct discovery and to make a factual finding on the testator’s intent.

REVERSED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

. Because the parties are familiar with the facts and the proceedings below, we do not recite them here except as necessary to aid in understanding this disposition.

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