Fisher v. State

• Decision Date: 01 May 1907
• Citation: 66 A. 661,106 Md. 104
• Parties: FISHER v. STATE.
• Court: Maryland Court of Appeals

66 A. 661

106 Md. 104

FISHER v. STATE.

Court of Appeals of Maryland

May 1, 1907

Appeal from Superior Court of Baltimore City; Alfred S. Niles Judge.

Suit by the state against D. K. Este Fisher, surviving trustee under the will of Henry E. Johnston, deceased. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, and BURKE, JJ.

Bernard Carter, for appellant.

Wm. S Bryan, Jr., Atty. Gen., for the State.

BRISCOE, J.

This is a suit by the state of Maryland to recover the collateral inheritance tax, alleged to be due from the estate of the late Henry E. Johnston. The facts are undisputed, and the question for determination rests upon the construction to be given to section 117, art. 81, of the Code of Public General Laws. The substance of the statute is as follows: "All estates *** passing from any person who may die seized and possessed thereof, being in this state, or any part of such estate *** or interest therein transferred by deed, will grant, bargain, gift or sale, made or intended to take effect in possession after the death of the grantor, *** devisor or donor, to any person or persons, bodies politic, *** in trust or otherwise, other than to or for the use of the father, mother, husband, wife, children and lineal descendants of the grantor, *** testator, donor, *** shall be subject to a tax of two and a half per centum on every hundred dollars, of the clear value of such estates, money or securities." Mr. Johnston died on the 5th of May, 1884, leaving a large and valuable estate, consisting of real and personal estate. The will was duly admitted to probate in the orphans' court of Baltimore City, and the trustees under the will duly qualified as such. By his will, he gave and devised the entire rest and residue of his estate, real and personal, to certain trustees (Messrs. Josiah L. Johnston, Wm. A. Fisher. W. Graham Bowdoin), in trust for his wife, Harriet Lane Johnston, for and during the term of her natural life, and after the death of his wife "in trust to hold the entire corpus of the residuum of the estate to the use of such person and persons, whether natural or corporations, to whom my wife may give and appoint, by any instrument in the nature of her last will and testament," and "if she should fail to execute a last will and to make such appointment, then, in trust, to hold the corpus of the residuum of the estate, to the use of the Harriet Lane Home for Invalid Children of Baltimore City." On the 11th of May, 1885, upon the settlement of the estate, his executors transferred to the trustees under the will the rest and residue of the personal estate, amounting to $188,395.44. The real property comprising a part of the estate, amounting to $43,000, also passed to the trustees, thus making the total value of the residuum of the estate transferred to the trustees, under the will, the sum of $231,395.44. Mrs. Johnston died on July 3, 1903, leaving a last will and testament, which was duly admitted to probate in the city of Washington, on November 3, 1903. By her will, she executed the power of appointment vested in her by the will of her husband by devising and bequeathing the entire rest and residue of the estate, real and personal, of her husband, to her executors, in trust, to allow her brother-in-law to enjoy a life estate therein, if he so desired, and, as to the rest and residue, to the Harriet Lane Home for Invalid Children of Baltimore City. On the 14th of March, 1904, Mr. Fisher, the surviving trustee, transferred all the residuum of the estate to Mrs. Johnston's executors except the sum of $25,000, retained by him to meet any claim of the state for the collateral inheritance tax, here in controversy. It is admitted, by the record, and charged in the declaration, that the residuum of Mr. Johnston's estate had increased, until at the time of the death of Mrs. Johnston it amounted to $734, 439.36; that Josiah L. Johnston and W. Graham Bowdoin are dead, and the defendant, D. K. Este Fisher, is the surviving trustee; and that no collateral inheritance tax has been paid to the state by the trustees of the estate. The case was tried before the court, without a jury, and, the judgment being in favor of the state, the defendant has appealed.

The declaration in the case contains two counts. The first count charges that the state is entitled to recover a tax, on the value of the rest and residue of the estate, transferred by the executors of Mr. Johnston to the trustees, on the 11th of May, 1885. The second count claims the tax on the rest and residue of the estate, at the date of the death of Mrs Johnston, on July 3, 1903. It is contended on the part of the appellant: (1) That upon a proper construction of the Maryland statutes, relating to the payment of collateral inheritance tax, in connection with the facts of this case, the state cannot recover any part of the amount claimed in either count in the declaration; (2) that, if the state can recover at all, it can only recover 2 1/2 per cent. on the value...