Fullbright v. Boardman

• Decision Date: 17 October 1924
• Docket Number: 4260.
• Citation: 125 S.E. 44,159 Ga. 162
• Parties: FULLBRIGHT, TAX COMMISSIONER, ET AL., v. BOARDMAN ET AL.
• Court: Georgia Supreme Court

125 S.E. 44

159 Ga. 162

FULLBRIGHT, TAX COMMISSIONER, ET AL., v. BOARDMAN ET AL.

No. 4260.

Supreme Court of Georgia

October 17, 1924

Syllabus by the Court.

The act of 1919 (Acts 1919, p. 58), amending the act of 1913 (Acts 1913, p. 91), imposing an inheritance tax upon all property within the jurisdiction of this state, real and personal which shall pass on the death of the decedent by will or by the laws of descent and distribution, or by deed, grant, or gift, does not extend to the property set apart to the widow as a statutory year's support.

Certified Question from Court of Appeals.

Action by H. J. Fullbright, tax commissioner, and others against A P. Boardman, administrator, and others. Judgment for defendants, and plaintiffs brought error to Court of Appeals which certified question to Supreme Court. Question answered.

H. J Fullbright, of Atlanta, and Isaac S. Peebles, Jr., of Augusta, for plaintiff in error.

Alexander & Lee, of Augusta, for defendant in error.

HILL J.

The Court of Appeals desires instructions from the Supreme Court upon the following question, an answer to which is necessary to a decision in this case:

"In determining the value of the estate of a decedent, for the purpose of inheritance taxation under the act of the General Assembly of August 19, 1913, as amended by the act of August 19, 1919 (Ga. L. 1913, p. 91; Ga. L. 1919, p. 58), is it proper to take from the gross value of the estate the amount of an allowance theretofore duly and regularly set apart by the court of ordinary as a year's support to the decedent's widow? In order words, barring the question of an exemption to the widow under the act of 1919, is property, which would otherwise have been liable for an inheritance tax, subject to an assessment therefor after it has been lawfully set apart to her as a year's support?"

The answer to the foregoing question depends upon a proper construction of the act of 1919, amending the act of 1913, supra. The question, put in another form, is whether or not a year's support set apart to a widow out of her deceased husband's estate, under the laws of Georgia, is subject to the payment of the inheritance tax provided by the act of 1919. Section 1 of that act provides:

"All property within the jurisdiction of this state, real and personal, and every estate and interest therein belonging to the inhabitants of the state, and all real estate as well as tangible personal property within the state or any interest therein, belonging to persons who are not inhabitants of the commonwealth, which shall pass on the death of the decedent by will or by the laws regulating descents and distributions, or by deed, grant, or gift, except in cases of a bona fide purchase for a full consideration, made, or intended to take effect in possession or enjoyment, after the death of the grantor or donor, to any person or persons, bodies politic or corporation in trust or otherwise, shall be subject to taxes, and shall pay the following tax to this state." Subsection 3 (b) of this same act provides:

"The following exemptions from the tax are hereby allowed: * * * Property of the market value of $5,000 transferred or passing to the widow, widower, child, son-in-law, daughter-in-law, or an adopted child of the decedent, shall be exempt. Property of the market value of $2,000 transferred to any other person described in subdivision (a) of paragraph 1 shall be exempt."

It will be observed from reading the act that all property within the jurisdiction of this state, which shall pass on the death of the decedent by will or by the laws regulating descents and distribution, etc., shall be subject to the inheritance tax. The question therefore arises, Does a year's support, set aside to a widow, descend by will or by the laws regulating descents and distribution, etc.? We are of the opinion, under the question propounded by the Court of Appeals, that it does not. The Civil Code 1910, § 4041, provides:

"Among the necessary expenses of administration, and to be preferred before all other debts, except as otherwise specially provided, is the provision for the support of the family."

Section 4000 provides:

"In the payment of the debts of a decedent, they shall rank in priority in the following order: 1. Year's support for the family. 2. Funeral expenses. * * * 3. The necessary expenses of administration. 4. Unpaid taxes or other debts due the state or United States."

And then follows debts due executors, judgments, mortgages, and other liens, rents, liquidated demands and open accounts. In Livingston v. Langley, 79 Ga. 169, 3 S.E. 909, this court held:

"Where a man dies indebted to the sureties on his bond to the state as tax collector, for money which they have paid on a fi. fa. issued by the comptroller general against him as principal and them as sureties, for taxes collected by him and not paid into the treasury, and where his assets consist in part of an amount to his credit on the books of the county for his commissions on the county taxes, but resulting, perhaps, from money derived from state taxes which he paid into the county treasury when he ought to have paid the same into the state treasury, his widow is entitled to have this balance due from the county applied to her year's support, and to have it set apart for that purpose to the exclusion of her husband's creditors, including said sureties on his official bond."

It thus appears that under our law a year's support ranks first in priority among debts of a decedent. The only exceptions to the above rule are specified in sections of the Civil Code of 1910, 4048, 4049, 4050, where the 12 months' support is made inferior to purchase money, rent, supplies, etc.

The question involved in this case has never been passed upon in a number of outside jurisdictions, and the weight of authority is against holding that a 12 months' support or dower is subject to inheritance tax. In the case of Crenshaw v. Moore, 124 Tenn. 528, 137 S.W. 924, 34 L.R.A. (N. S.) 1161, Ann.Cas. 1913A, 165, it was held:

"A statute imposing a tax on all estates passing from any person who may die seized thereof, either by will or under the intestate laws of the state, does not extend to the statutory year's support of the widow, or to her dower interest in the property."

In delivering the opinion of the court in that case, Lansden, J., said:

"It is a special tax, and the rule is that laws imposing such taxes are to be construed strictly against the government, and favorably to the taxpayer. English v. Crenshaw, 120 Tenn. 531, 17 L.R.A. (N. S.) 753, 127 Am.St.Rep. 1025, 110 S.W. 210. The widow's year's support is given her by statutory provision. * * * It is inconceivable that the Legislature intended to levy the tax in question upon this bounty of the widow, given her by the law out of her husband's personal estate. She does not succeed to the husband's title to the property set apart to her as a year's support, but acquires it adversely to his administrator by virtue of the statute. By the act of separation of the personalty assigned to her by the commissioners, and the subsequent confirmation of their report by the court, the title to the specific property thus set apart becomes absolutely vested in the widow. The obvious intention of the Legislature in passing this statute was to provide a temporary support for her and her family immediately on the death of her husband. It is an extension by law of her right of support out of the personal estate of her husband for one

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