In re Assessment of Collateral Inheritance Tax In Estate of Lankford

• Decision Date: 27 July 1917
• Citation: 197 S.W. 147,272 Mo. 1
• Parties: In re ASSESSMENT OF COLLATERAL INHERITANCE TAX IN ESTATE OF JAMES D. LANKFORD
• Court: Missouri Supreme Court

197 S.W. 147

272 Mo. 1

In re ASSESSMENT OF COLLATERAL INHERITANCE TAX IN ESTATE OF JAMES D. LANKFORD

Supreme Court of Missouri, Second Division

July 27, 1917

Appeal from Saline Circuit Court. -- Hon. Samuel Davis, Judge.

Reversed and remanded.

A. B Hoy and Orville M. Barnett for appellant.

(1) Sec. 309, R. S. 1909, provides, in effect, that all property passing by will or the intestate laws of the State from any person while a resident of the State, to others than to certain excepted individuals and purposes, shall be subject to an inheritance tax; while the same section limits the inheritance tax payable on the estate of a non-resident to property which shall be within the State at the time of death. In the estate at bar a large part of the personalty was at death of testator located outside of the State. By the terms of the will a large part of the estate passes to those whose right to succession is subject to payment of inheritance tax if decedent was domiciled in Missouri; a smaller portion, by reason of being within the State, is subject to tax, if decedent was a non-resident. (2) There is no substantial evidence upon which to base the finding of the trial court to the effect that decedent was a non-resident and that the only evidence entitled to consideration on that question is conclusive that the testator was at date of death a resident of and domiciled in Saline County, Missouri. (3) The evidence upon which appellant relies as showing residence in this State is found wholly in positive and unqualified declarations in the last will and testament. (a) The weight to be given to such declarations must very much depend upon the particular circumstances of each case. Smith v Croom, 7 Fla. 161; In re Ayers Estate, 84 Neb. 16; Ennis v. Smith, 14 How. 400; Wilson v. Terry, 91 Mass. 214, 9 Allen 214; Christye on Inheritance Taxation, p. 824; 14 Cyc. 864. (b) The probative force of such declaration is increased by the appointment of executor for the declared purpose of executing testator's will in the same jurisdiction of which he declares himself to be a resident. Merrill v. Morrissett, 76 Ala. 440; 4 Ency. Evidence, 862. (c) The whole tenor of a will may be such that it is inconsistent with the idea of testator's residence abroad. Cruger v. Phelps, 47 N.Y. 61. (4) Conceding every word of the testimony to be true, there is nothing therein overcoming the strong prima-facie proof of residence contained in the declarations made by testator himself under the solemn sanction of his last will and testament. (5) Domicile of deceased is established in Missouri as of April 12, 1912, and such domicile is presumed to have continued without clear proof of abandonment, and the setting up of a new domicile outside the state. Ramey v. Dayton, 77 Mo. 682; 14 Cyc. 859; In re Coulton's Estate, 128 Iowa 542; Anderson v. Watts, 138 U.S. 694; Inhabitants v. Inhabitants, 88 Mass. 508.

Robert M. Reynolds and Albert R. James for respondents.

(1) The finding and judgment of the trial court on a question of fact in a law case, in which no instructions are asked or given, cannot be reviewed or disturbed by the appellate court. Rausch v. Michel, 192 Mo. 293; Jordan v. Davis, 172 Mo. 599; Lewis v. Muse, 130 Mo.App. 201; Sutter v. Raeder, 149 Mo. 307; Bozarth v. Legion of Honor, 93 Mo.App. 564; Easley v. Elliot, 43 Mo. 289; Wilson v. Railroad, 46 Mo. 36; Weilandy v. Lemuel, 47 Mo. 322; Hamilton v. Boggess, 63 Mo. 233; Henry v. Bell, 75 Mo. 194; Harrington v. Minor, 80 Mo. 270 Gaines v. Fender, 82 Mo. 497; Cunningham v. Snow, 82; Mo. 587; Sieferer v. St. Louis, 141 Mo. 586; Swayze v. Bride, 34 Mo.App. 414; O'Howell v. Kirk, 41 Mo.App. 523; Claflin v. Burkhart, 43 Mo.App. 226; Morgan v. Railroad, 51 Mo.App. 523; Hatton v. St. Louis, 264 Mo. 634; Scarritt Est. v. Casualty Co., 166 Mo.App. 570; Buford v. Moore, 177 S.W. 865; Wilkinson v. Western Union, 163 Mo.App. 71; Prendergast v. Graverman, 166 Mo.App. 33; Strother v. Barrow, 246 Mo. 241; Paxton v. Bonner, 172 Mo.App. 479; Keyser v. Hayes, 190 Mo.App. 380. (2) The determination of a person's residence depends on his intention and his intention must be judged by all the facts and circumstances in connection with his residence. Hall v. Schoeneck, 128 Mo. 661; Stephens v. Larwill, 110 Mo.App. 156; Green v. Beckwith, 33 Mo. 384; Johnson v. Smith, 43 Mo. 449; State ex rel. Ramey v. Dayton, 77 Mo. 678; Chariton County v. Moberly, 59 Mo. 238; State ex rel. v. Bunce, 187 Mo.App. 607; Northern v. McGaw, 189 Mo.App. 362; City of Winchester v. Van Meter, 164 S.W. 323. James D. Lankford, not being a resident of Missouri, the cash, bank draft and certificates of stock in foreign corporations, which were in Missouri at the time of his death, merely for safe-keeping and not otherwise, are not subject to the collateral inheritance tax in the State of Missouri. Gilbertson v. Oliver, 4 L.R.A. (N.S.) 953; Cooley on Taxation (3 Ed.), 24; Kirtland v. Hotchkiss, 100 U.S. 491; 37 Cyc. 1561; Matter of Tulane, 51 Hun, 213, 4 N.Y.S. 36; 37 Cyc. 1563; Neilson v. Russell, 19 L.R.A. (N.S.) 887; People v. Griffith, 245 Ill. 532; In re Helena, 236 Pa. 213, 46 L.R.A. (N.S.) 1173, 1175 (notes); Dunham v. Trust Co., 193 N.Y. 642; In re Bishop, 82 A.D. 112, 81 N.Y.S. 474; Ross on Inheritance Taxation, sec. 181.

OPINION

FARIS, J.

This is a proceeding begun in the probate court of Saline County for the purpose of assessing a collateral inheritance tax against the estate of James D. Lankford, deceased. The probate court held that the estate was subject to the tax, but upon an appeal to the circuit court of Saline County and a trial therein of the issues de novo, that court found that decedent was not, at the time of his death, a resident of Missouri and therefore his estate was not liable to this tax, and judgment went in favor of the estate. From this judgment an appeal was taken.

The facts shown in evidence are few and simple. The movant for the assessment of this tax (whom for convenience we shall hereinafter designate as plaintiff) offered the will of James D. Lankford (called herein decedent) as containing a solemn admission of the fact of his residence in this State, and after also offering the appraisement and other formal orders, rested. The apposite provisions of the will of decedent are the first and sixth clauses, which run in pertinent part thus:

"I, James D. Lankford, of Marshall, Saline County, Missouri, formerly of Pueblo, county of Pueblo and State of Colorado, being of sound and disposing mind, revoke all former wills by me made, and now make this, my last will and testament."

The will further provided in the sixth clause thereof that "in the event of the death of either of said legatees the said Belle Lankford, Paris M. Walker, Marian Garrard or Nancy Hagood leaving children or other descendants surviving them (direct descendants) as heirs, then it is my will that my said trustees shall thereupon and thereafter hold said share of such one so dying for the use and benefit of the children or direct descendants of such one who according to the laws of descent and distribution of the State of Missouri shall be entitled as heirs of such one to claim such estate."

It was further provided by other paragraphs of said will that certain trustees to administer further provisions of the will, which provisions are not here pertinent, should be appointed by the circuit court of Saline County, Missouri, or by the judge thereof in vacation, and that the bonds required to be given by the trustees should be made by "some responsible corporation authorized to execute bonds in the State of Missouri as surety." It was further provided in the eighteenth paragraph of said will that in case it became necessary to administer the estate of decedent in the probate court such administration should be had "in accordance with said trusts and the proper orders of the probate court and the laws of the State of Missouri." (Italics ours.)

On the part of the beneficiaries under said will (hereinafter for convenience called defendants) the testimony of but one witness was offered and defendants rested. The whole of the testimony for defendants elicited from the one witness mentioned, is as follows:

"James D. Lankford was my uncle and I was well and intimately acquainted with him during his lifetime. He was born in Saline County, Missouri, and lived here until about thirty years ago, at time which he went to the State of Colorado took up his residence there, went into business in partnership with his brother, Garrett Lankford, and made Colorado his home. This partnership continued until about seven or eight years ago, when it was dissolved. Since that time James D. Lankford, so far as I know, has maintained no permanent home, but has spent a portion of his time in Colorado, Oklahoma, Old Mexico, Kansas and Missouri, probably spending more of his time in Missouri than any other one place. He had large property interests in Oklahoma, Old Mexico, Colorado and Kansas, and would spend a portion of his time each year in these places looking after his interests. He never voted in Missouri or asserted any of the rights of citizenship here since taking up his residence in the State of Colorado thirty years ago. He was never assessed on any property or paid any taxes on any property in Missouri since leaving here thirty years ago. At the time of his death, December 25, 1912, he had been in Marshall, Missouri, with his niece since about the 1st of September, 1912, or about four months. On election day, in November, 1912, knowing that he was a great admirer of Woodrow Wilson, I asked him if he was not going to vote for his friend Wilson and he said 'No, I have no vote here.' He said nothing further in regard to the matter. I did not know of his having...