Clay v. Edwards

• Decision Date: 10 April 1913
• Parties: CLAY v. EDWARDS, State Comptroller.
• Court: New Jersey Supreme Court

86 A. 548

84 N.J.L. 221

CLAY

v. EDWARDS, State Comptroller.

Supreme Court of New Jersey.

April 10, 1913.

Action to set aside an assessment by George S. Clay, individually and as executor of the estate of Harriet E. Guion, deceased, against Edward I. Edwards, Comptroller of the State of New Jersey. Judgment for defendant, and plaintiff prosecutes certiorari. Judgment reversed, and, assessment set aside.

Argued June term, 1912, before SWAYZEl, VOORHEES, and KALISCH, JJ.

Charles M. Dolliver, of Plainfield, and Albert C. Wall, of Jersey City, for prosecutor.

Josiah Stryker, of Trenton, and Edmund Wilson, Atty. Gen., for defendant.

KALISCH, J. The prosecutor, George S. Clay, in certiorari seeks to remove an assessment of inheritance tax, amounting to $714.17, assessed against the legacy to him under the will of Harriet E. Guion, deceased. The prosecutor married the testatrix's daughter, Annie Guion. The will was made in the lifetime of the testatrix's daughter, but by a codicil she speaks of the death of her daughter, and devises property to her son-in-law, George S. Clay, the prosecutor. From the will and codicil it appears that George S. Clay, the prosecutor, and Annie Guion Clay had a son, Godfrey Guion Clay, as their issue. Harriet Guion died July 28, 1910. Her will was probated October 19, 1910, the prosecutor qualifying as executor. The prosecutor remarried April 19, 1911. The prosecutor's claim is that the tax has been erroneously assessed against his legacy because our statute exempts property passing to the "husband of a daughter."

The claim of the defendant is that the prosecutor is not within the exemption of the third paragraph of the fourth subdivision of section 1 of the act (p. 326, P. L. 1909), entitled "Exemptions," and which is in part as follows: "Property passing to churches * * * or to father, mother, husband, or widow of a son or the husband of a daughter shall be exempt from taxation under this act * * * "—in that the prosecutor was the "widower" of a daughter of the testatrix, and not the husband. And the term "widower" is not found in the statutes. The single question presented is whether the phrase "husband of a daughter," as used in this connection, includes the widower or surviving husband of a deceased daughter or not [2] The New York courts seem to have considered and passed upon the question under the provision of a section of the New York statutes relating to the collateral inheritance tax which was passed in 1885 (N. Y. Laws 1885, c. 483), and before that provision was taken and incorporated in our original collateral inheritance tax act, approved May 15, 1894 (P. L. 1894, p. 318), in practically the same language as contained in the New York statute. As the question arising out of the provision is up for the first time in this state, the construction and effect of which as declared by the New York courts are entitled to great weight. Neilson v. Russell, 76 N. J. Law, 27, 42, 69 Atl. 476. Two cases involving the subject under discussion arose in New York state under its act of 1885. The first case was In re Woolsey, 20 N. Y. St. Rep. 135, s. c. 19 Abb. N. C. 232, s. c. 6 Dem. Sur. 145, decided by the surrogate of King's county in July, 1887, and the second In re Ray's Estate, 13 Misc. Rep. 480, 35 N. Y. Supp. 481, decided by the surrogate of Madison county in 1895. Although the decisions referred to are not the pronouncements of the highest court of the state, the fact that surrogates deal largely and exclusively with matter relating to the estates of deceased persons qualifies them with expert knowledge of the subject, and coupled with the further facts that no appeal was taken from either decision, and that the construction placed on the words "husband of a daughter," as contained in the act of 1885, by the surrogates, to the effect that they include the surviving husband of a deceased daughter, and that the circumstance that the husband has remarried does not deprive him of his right to exemption under the act, yet nevertheless the Legislature of the state of New York, in view of all this, in enacting the tax law of 1909, made no change in that regard, but left the phrase "husband of a daughter" undisturbed. The words "husband of a daughter" having been thus judicially determined, as to their meaning, by the decisions referred to for more than 20 years prior to the passage of the act of 1909, and so far as it appears (there being no decision to the contrary) acquiesced in by the bench and bar of that state, afford...