Gilbertson v. Oliver

• Decision Date: 08 February 1906
• Citation: Gilbertson v. Oliver, 129 Iowa 568, 105 N.W. 1002 (Iowa 1906)
• Parties: GILBERT S. GILBERTSON, TREASURER OF STATE, Appellant, v. GEORGE O. OLIVER, ANCILLARY EXECUTOR OF THE ESTATE OF JULIA P. WHITING, DECEASED ET AL
• Court: Iowa Supreme Court

105 N.W. 1002

129 Iowa 568

GILBERT S. GILBERTSON, TREASURER OF STATE, Appellant, v. GEORGE O. OLIVER, ANCILLARY EXECUTOR OF THE ESTATE OF JULIA P. WHITING, DECEASED ET AL

Supreme Court of Iowa, Des Moines

February 8, 1906

Appeal from Monona District Court.-- HON. G. W. WAKEFIELD, Judge.

SUIT for the collection of an inheritance tax on the personal estate of Julia P. Whiting. Judgment for the defendants, from which the plaintiff appeals.-- Affirmed.

Affirmed.

Chas W. Mullan, Attorney General, for appellant.

J. M Holt and J. L. Carney, for appellees.

OPINION

SHERWIN, J.--

At the time of her death Julia P. Whiting was a resident of the state of New Hampshire. Some time prior thereto she had deposited money in banks in this state, receiving therefor certificates of deposit in the usual form, which certificates she owned and had in her possession in New Hampshire at the time of her decease. She also owned, and had in her possession at said time and place, other evidences of indebtedness and securities therefor in the form of notes and mortgages, the debts represented thereby being owed by residents of this state, and an interest in shares of stock of an Iowa corporation. She died testate, devising this property to collateral heirs, and the plaintiff claims that it is subject to the payment of a collateral inheritance tax under the provisions of section 1467 of the Code, which is as follows, so far as it is material here.

All property within the jurisdiction of this state, and any interest therein, whether belonging to the inhabitants of this state or not, and whether tangible or intangible, which shall pass by will or by the statutes of inheritance of this or any other state, or by deed, grant, sale or gift made or intended to take effect in possession or enjoyment after the death of the grantor or donor, to any person in trust or otherwise, other than to or for the use of the father, mother, husband, wife, lineal descendant, adopted child, the lineal descendant of an adopted child or a decedent, or to charitable, educational or religious societies or institutions within this state . . ." is subject to pay a collateral inheritance tax to the state of Iowa.

The domicile of the testator was in New Hampshire, and the certificates of deposit and other evidences of indebtedness involved herein were in her possession there at the at the time of her death. But the appellant contends that the indebtedness owing to her by residents of this state at the time of her death, was intangible property within this state, subject to its jurisdiction and liable to pay an inheritance tax. The controversy presents for determination but one legal question, namely, was the property of the deceased within the jurisdiction of this state at the time of her death? There is a conflict in the adjudicated cases as to whether such evidences of indebtedness are taxable at the domicile of the owner, or whether the actual situs of such property and not the domicile of the owner determines the liability to taxation. The great weight of authority, however, supports the holding of our own cases that this species of personal property, which is in a sense intangible and incorporeal, is taxable at the domicile of the owner, and not elsewhere, unless the owner has himself given it a different situs. In the early case of City of Davenport et al. v. M. & M. R. R. Company, 12 Iowa 539, the city of Davenport and the county of Scott undertook to tax mortgages which had been placed on property of the defendant in this state, but which were owned and held by nonresidents of the state. At that time the statute provided that all real and personal property "within this state" was subject to taxation, etc. In discussing the question whether the mortgages were property within this state. this court, speaking through Baldwin, J., said:

It is true that the situs of the property mortgaged is within the jurisdiction of the state; but the mortgage itself, being personal property, a chose in action, attaches to the person of the owner. It is agreed . . . that the owners and holders of the mortgages are nonresidents of the state. If so, and the property in the mortgage attaches to the person of the owner, it follows that these mortgages are not property within the state, and, if not, they are not the subject of taxation.

In Hunter v. Board of Supervisors, 33 Iowa 376, a resident of this state had deposited in a bank in Illinois for safe-keeping notes which had never been in this state. In holding that the debt evidenced by the notes was taxable in this state it was said:

The property in the evidence of the debt is not taxable, and hence whether the 'credit' or 'debt' was or was not subject to taxation at the time cannot be determined alone by the situs of the evidence. The debt due, of which the notes are the evidence, is property vested in the owner wherever he may reside. This property in the right -- the chose in action -- is as absolute a property...