Hagerty v. State ex rel. Dyer

• Decision Date: 26 January 1897
• Citation: 55 Ohio St. 613,45 N.E. 1046
• Parties: HAGERTY, Judge of Probate Court, v. STATE ex rel. DYER, Prosecuting Attorney.
• Court: Ohio Supreme Court

45 N.E. 1046

55 Ohio St. 613

HAGERTY, Judge of Probate Court, v. STATE ex rel. DYER, Prosecuting Attorney.

Supreme Court of Ohio.

January 26, 1897

Error to circuit court, Franklin county.

Application by the state, on the relation of Joseph H. Dyer, for a writ of mandamus to Lorenzo D. Hagerty.

The prosecuting attorney filed a petition in the circuit court for a peremptory writ of mandamus, commanding the probate judge to appoint three disinterested persons to view and appraise the personal and real property left by Elizabeth Noble, deceased, for the purpose of assessing thereon the tax provided for by the act entitled ‘An act imposing a collateral inheritance tax,’ passed January 27, 1893 as amended April 20, 1894, said judge refusing to make such appointment because he believed said acts to be unconstitutional and void. A demurrer to the petition was overruled, and a peremptory writ allowed as prayed for, and defendant brings error. Affirmed.

Property "which shall pass by sale or gift made or intended to take effect in possession or enjoyment after the death of the grantor," etc., within meaning of collateral inheritance tax law, is such only as passes in transactions which are in fact gifts, though in form sales, and act does not restrict right to dispose of property by sale for valuable consideration.

Syllabus by the Court

1. The act of April 20, 1894 (91 Ohio Laws, p. 169), amending ‘An act imposing a collateral inheritance tax,’ is not repugnant to any provision of the constitution because of its discriminations among collateral kindred.

2. The property ‘which shall pass by sale,’ within the meaning of the act, is such only as passes in transactions which are in fact gifts, though in form sales, and the act does not restrict the right to dispose of property by sale for a valuable consideration, which the parties, in good faith, deem adequate.

Harrison, Olds & Henderson, for plaintiff in error.

Joseph H. Dyer and Henry A. Williams, for defendant in error.

PER CURIAM.

The only question raised by the demurrer is the constitutional validity of the legislation referred to. Its validity is denied because of the provisions of the first section of the amended act, which is as follows:

‘Section 1. That all property within the jurisdiction of this state and any interest therein, whether belonging to inhabitants of this state or not, and whether tangible or intangible, which shall pass by will or by the intestate laws of this state, or by deed, grant, sale or gift made or intended to take effect in possession or enjoyment after the death of the grantor, to any person in trust or otherwise, other than to or for the use of the father, mother, husband, wife, brother, sister, niece, nephew, lineal descendant, adopted child, or person recognized as an adopted child, and made a legal heir under the provisions of section 4182 of the Revised

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