Kochersperger v. Drake
| Decision Date | 11 May 1897 |
| Citation | 47 N.E. 321,167 Ill. 122 |
| Parties | KOCHERSPERGER, County Treasurer, v. DRAKE et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Cook county court; Orrin N. Carter, Judge.
Petition by Daniel H. Kochersperger, county treasurer and ex officio county collector of Cook county, for the appointment of an appraiser to appraise the estate of John B. Drake, deceased. Josephine C. Drake and others, executors and trustees under the will of decedent, interposed a demurrer, which was sustained; and the petition was dismissed, and judgment was entered for costs against petitioner, who appeals. Reversed.
Frank L. Shepard and Robert S. Iles, for appellant.
Prussing & McCulloch, for appellees.
On November 12, 1895, John B. Drake, a resident of Cook county, Ill., died, leaving a last will and testament, in and by which Josephine C. Drake, Timothy B. Blackstone, and the Illinois Trust & Savings Bank were appointed his executors and trustees. Under the provisions of the will, property in excess of $20,000 passed to Josephine C. Drake, widow of John B. Drake; $5,000 each passed to Fanny D. English, Mrs. Sallie Sausser, and Ella Drake, nieces of the said John B. Drake; $1,000 each passed to Samuel W. Parker and Henry Morgan, and $500 each passed to John Gabriel and Bridget Huges, strangers to the blood, and in no wise related to the said John B. Drake; property in excess of $2,000,000 passed to the said executors, to be held in trust for the use and benefit of the said wife and children of the said John B. Drake. A petition was filed by the county treasurer of Cook county in the county court of Cook county, asking for the appointment of an appraiser to appraise said estate, under ‘An act to tax gifts, legacies and inheritances in certain cases, and to provide for the collection of the same,’ approved June 15, 1895, in force July 1, 1895. To the petition in this case a demurrer was interposed on the part of the executors and trustees, which was sustained by the court, and the petition dismissed, and a judgment entered for costs. The judgment of the court was that the act was unconstitutional. The question presented by this appeal involves the constitutionality of the act entitled ‘An act to tax gifts, legacies and inheritances in certain cases, and to provide for the collection of the same,’ approved June 15, 1895.
The existence of the common law within the state of Illinois results from the provisions of chapter 28, Rev. St., which declares that the common law of England, and all statutes of a general nature made prior to the fourth year of James I., shall be the rule of decision, and shall be considered as of full force, until repealed by legislative authority. By that authority, chapter 39, Rev. St., entitled ‘An act in regard to the descent of property,’ and chapter 148, entitled ‘An act in regard to wills,’ were enacted, which in effect repeal the common law in reference to inheritances, and also repeal the statute enacted prior to the fourth year of James I. in reference to devises. There is not in force in this state, under chapter 28, any law providing for the descent or devise of property. The law of descent, and the right to devise and take under a will, within the state of Illinois, owe their existence to the statute law of the state. The right to inherit and the right to devise being dependent on the legislative acts, there is nothing in the constitution of this state which prohibits a change of those subjects at the discretion of the lawmaking power. The law of descent and devise being the creation of the statute law, the power which creates may regulate and may impose conditions or burdens on a right of succession to the ownership of propertyto which there has ceased to be an owner because of death, and the ownership of which the state then provides for by the law of descent or devise. The imposition of such a condition or burden is not a tax upon the property itself, but on the right of succession thereto. To deny the right of the state to impose such a burden or condition is to deny the right of the state to regulate the administration of a decedent's estate. When by the act of June 15, 1895, for the taxation of gifts, legacies, and inheritances in certain cases, the legislature prescribed that a certain part of the estate of the deceased person should be paid to the treasurer of the proper county for the use of the state, it was, in effect, an assertion of sovereignty in the estate of deceased persons. Whether to be levied and determined as a tax or penalty, the principle is that, where one...
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... ... Dunlap, 28 Id. 784, 156 P. 1141 ... ILLINOIS--Inheritance ... tax law held constitutional in 1895 and upheld in ... Kochersperger v. Drake, 167 Ill. 122, 47 N.E. 321, ... 41 L. R. A. 446; Billings v. People, 189 Ill. 472, ... 59 N.E. 798, 59 L. R. A. 807, affirmed in 188 ... ...
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