Blodgett v. Union & New Haven Trust Co.

• Decision Date: 05 May 1922
• Parties: BLODGETT, Tax Com'r, v. UNION & NEW HAVEN TRUST CO.
• Court: Connecticut Supreme Court

116 A. 908

97 Conn. 405

BLODGETT, Tax Com'r, v. UNION & NEW HAVEN TRUST CO.

Supreme Court of Errors of Connecticut.

May 5, 1922

Appeal from Superior Court, New Haven County; George E. Hinman Judge.

Proceedings by William H. Blodgett, Tax Commissioner, against the Union &amp New Haven Trust Company, trustee. From a decree of the probate adjudging no taxes payable on the trust fund, the commissioner appealed to the superior court of New Haven county, which reserved the question for the advice of the Supreme Court on an agreed statement of facts. Superior court advised to render judgment in favor of the trustee.

On April 8, 1915, Elizabeth F. King, of New Haven, executed, and on April 12 delivered to the Union & New Haven Trust Company a deed of trust whereby she transferred to the trust company described securities of the par value of $134,000, with the usual powers of sale and reinvestment upon trust to pay the income of the fund to the settlor for life, and at her death to deliver the fund to her daughter Jessie Shuttleworth, or, if the settlor survived her daughter, to the executor named in her daughter's last will. The trust company accepted the trust, received the securities, and paid the income thereof to the settler during her life. Elizabeth King died domiciled in the town of New Haven on January 26, 1921. Jessie Shuttleworth, named in the trust deed as the remainderman, survived her mother and is now living. The trust company, as administrator c. t. a. of the estate of Elizabeth King, applied to the probate court for the district of New Haven to determine whether the fund in its hands and accrued income was liable to a succession tax. The probate court, after notice to the tax commissioner, who appeared and was heard, decreed that the fund was not liable to such a tax, and from that decree the commissioner appealed to the superior court, which has reserved the question for the advice of this court.

Under the rule that the enumeration of subjects of taxation excludes what is not enumerated the use of the phrase " testamentary gift" as synonymous with " gift to take effect at death" seems to exclude rather than include irrevocable conveyances which had already taken effect by delivery before grantor's death.

Carlos S. Holcomb, of Hartford, and Frank E. Healy, Atty. Gen., for appellant.

Edmund L. Mooney, of New York City, and James Dwight Dana, of New Haven, for appellee.

BEACH J.

Chapter 231 of the Public Acts of 1913, which was the succession tax statute in force when the trust deed was executed and delivered, provided in section 2 that-

" All property within the jurisdiction of this state and any interest therein, tangible or intangible, possessed by any resident of this state at the time of his decease, and all tangible property within this state possessed by a nonresident at the time of his death, which shall pass by gift to take effect at death, by will, or by the inheritance laws of this state, to any person, corporation, voluntary association, or society, in excess of the exemption hereinafter set forth, shall be liable to a tax to the state," etc.

The corresponding section of the act of 1915 (Pub. Acts 1915, c. 332), which became effective subsequent to the execution and delivery of the deed of trust, provides that-

" All property owned by any resident of this state at the time of his decease, and all property within this state owned by a nonresident at the time of his decease, which shall pass by will or by the provisions of the general statutes relating to the distribution of intestate estates, and all property of such decedent which shall pass by deed, grant, or gift, made in contemplation of the death of the grantor or donor, or intended to take effect in possession or enjoyment at the death of such grantor or donor, shall be liable to a tax as hereinafter provided."

The question first to be considered in logical sequence is whether the taxing statute applicable to the trust fund is the act of 1913, which was in force when the deed and the securities were delivered to the trustee or the statute of 1915, which came into effect after the establishment of the trust, but before the settlor's death. As to this point we are of opinion that the probate court was right in holding that the applicable statute was that of 1913, for the reason that the trust deed was absolute and irrevocable. One possible contingency, indeed, remained open, on the happening of which the fund might have reverted to the settlor, namely the death intestate of Jessie Shuttleworth in Mrs. King's lifetime. That contingency, however, was preventable by Mrs. Shuttleworth, and was entirely beyond Mrs. King's control, so that the settlor cannot be said to have retained any property in or control over the fund beyond her reserved right to the income thereof for life. In that respect the instant case differs sharply from the decided cases in which the settlor reserved the power to revoke the transfer...