Bank of Montclair v. McCutcheon

• Decision Date: 05 December 1930
• Citation: 152 A. 379
• Parties: BANK OF MONTCLAIR v. McCUTCHEON, Comptroller.
• Court: New Jersey Supreme Court

152 A. 379

BANK OF MONTCLAIR

v. McCUTCHEON, Comptroller.

Prerogative Court of New Jersey.

Dec. 5, 1930.

Syllabus by the Court.

Transfer inheritance tax on the transfer of property from a woman dying March 17, 1929, to her illegitimate son was correctly assessed at the rate of 8 per cent.

Syllabus by the Court.

The word "child," as used in the Transfer Inheritance Tax Act (P. I>. 1927, p. 428), is to be construed as excluding illegitimate children.

Suit by the Bank of Montclair, administrator of Phyllis Johnson, deceased, against John McCutcheon, Comptroller, etc., to review a tax levied by the Comptroller on the transfer of decedent's estate.

Assessment affirmed.

Philip Goodell, of Montclair, for appellant.

William A, Stevens, Atty. Gen., for respondent.

BUCHANAN, Vice Ordinary.

This is a transfer tax appeal, by the administrator of Phyllis Johnson, deceased, from the tax levied by the comptroller on the transfer of her estate.

Decedent died, a resident of New Jersey, March 17, 1929, intestate. She left only personal estate, of the net value of $2,458.92, which passed to her illegitimate son, Charles Plicque, who was her sole next of kin. She had never married.

The comptroller levied a tax at the rate of 8 per cent. Appellant contends that this was error; that the transfer in question was exempt from tax under the provision of the statute exempting transfers to a "child" of property up to $5,000 in value. This is the sole issue.

The pertinent provisions of the Transfer Tax Act (4 Comp. St. 1910, p. 5301, § 537), as amended (P. L. 1927, c. 228, p. 428 at 431, 433), are as follows:

"Property passing to a father, mother, husband, wife, child or children of a decedent, or to any child or children adopted by the decedent in conformity with the laws of this State, or of any of the United States, or of any foreign kingdom, or nation, or the issue of any child or legally adopted child of a decedent, shall be taxed at the rate of one per centum on any amount in excess of five thousand dollars, up to fifty thousand dollars. * * *

"Property passing to every other transferee, distributee, or beneficiary not hereinbefore classified shall be taxed at the rate of eight per centum on any amount up to nine hundred thousand dollars."

If it be determined that, under the true intent and meaning of the first of these provisions, the transfer in question comes within the scope thereof, then the estate is not taxable, and the assessment must be set aside; otherwise, concededly, the tax has been correctly assessed under the second of the quoted provisions.

It is contended by appellant (1) that the usual and ordinary meaning of the word "child" in the English language does not exclude an illegitimate child. A child is "the immediate progeny of human parents"; a child is equally a child whether it be a legitimate child or an illegitimate child; (2) that there are no words or provisions in the Transfer Tax Act expressly limiting the meaning of the word "child," as used in that act, to children born in lawful wedlock; (3) that the tendency of modern civilization has been, and is, towards amelioration of the disabilities and inferior condition under which an illegitimate child rested in earlier times; and (4) that there are many statutes of this state wherein the word "child" is used, which contains no express words of intent to include illegitimate children, but which have been judicially determined to include illegitimate as well as legitimate children within the scope of that classification, according to their true intent and meaning, or which no one has contended or would contend intended to exclude illegitimate children from the meaning of that word; citing for the most part criminal statutes, such as those against procuring the abortion of a child, and other crimes against children—statutes prohibiting or restricting child labor, and the like—to which might be added, doubtless, the statutes as to schools and education.

All this is true; but by no means necessarily leads to the conclusion which appellant draws, that the word as used in the Transfer Tax Act is meant to include illegitimate children.

It is beyond question that in some statutes of this state the word "child" is intended to include illegitimate children, and that in others it is intended to exclude them. In any given statute, therefore, the use of the word "child," without expression of which meaning is intended, requires judicial interpretation.

It is equally beyond question that it is the law of this state that, where the word "child" is used in a will, it means only legitimate children, unless it clearly appears from other provisions of the will or the surrounding circumstances that a broader meaning was intended. This is conceded by appellant.

The same thing is true as to the interpretation of the meaning of the word "child" where it appears in our statutes of wills and...