Greiner's Estate, In re

• Decision Date: 17 September 1952
• Docket Number: No. 32167,32167
• Citation: 412 Ill. 591,107 N.E.2d 836
• Parties: In re GREINER'S ESTATE. HURFORD et al. v. PEOPLE.
• Court: Illinois Supreme Court

Page 836

107 N.E.2d 836

412 Ill. 591

In re GREINER'S ESTATE HURFORD et al. v. PEOPLE.

No. 32167.

Supreme Court of Illinois.

Sept. 17, 1952.

Harold L. Feigenholtz and Immenhausen, Banovitz & Balin, both of Chicago, (Eugene A. Busch, Chicago, of counsel), for appellant.

Ivan A. Elliott, Atty. Gen. (William C. Wines, Chicago, of counsel), for appellee.

MAXWELL, Justice.

This is an appeal by the executor from an order entered by the county court of Cook County assessing an inheritance tax in the estate of Clarence A. Greiner, deceased, on a bequest to the divorced wife of the decedent.

On February 2, 1928, a decree of divorce was entered by the superior court of Cook County in the case of Lucille Storer Greiner v. Clarence A. Greiner, which provides, inter alia:

'The Court further finds that the parties hereto have made a settlement of their respective property rights and that the defendant is to pay the complainant the sum of Thirty-Seven Hundred Fifty Dollars ($3,750.00) in cash; the sum of Five Hundred Dollars ($500.00) per month alimony, the first payment to be made on the 2nd day of February, 1928; the sum of Fifteen Hundred Dollars ($1,500.00) to the complainant for solicitor's fees; the defendant has contemporaneously with the execution of this decree executed his Will whereby he has irrevocably bequeathed to the complainant, providing that she survives the defendant and has not remarried, the sum of Fifty Thousand Dollars ($50,000.00), and provided that should the defendant alter this provision of his Will, the complainant shall be entitled to her dower right in the event that she survives the defendant and has not remarried; and the defendant is to pay the costs of this suit. * * *

'It is further Ordered, Adjudged and Decreed that the complainant Lucille Storer Greiner shall be entitled to all her property rights, including the right of dower in the defendant's property, providing that she survive the defendant and has not remarried, and providing further that the defendant has not in his Last Will and Testament bequeathed to the complainant the sum of Fifty Thousand Dollars ($50,000.00) in cash payable after the payment of all his just debts and funeral expenses, in which event the said Fifty Thousand Dollars ($50,000.00) when, as and if paid out of the said estate to the complainant, shall be in full settlement of all dower and property rights of the complainant in and to the assets of the estate of the defendant.'

Clarence A. Greiner died June 28, 1947, leaving a will, the second paragraph of which provided:

'I give, devise and bequeath to my former wife, Lucille Storer Greiner, in compliance with our divorce decree provided she survives me and has not remarried, the sum of Fifty Thousand Dollars ($50,000.00), which sum is to be paid out of my Estate after the payment of all my just debts and funeral expenses, provided, however, that my Executor, out of my residuary estate, shall pay any and all succession taxes and all other State or Federal Inheritance taxes levied against this bequest. If the said Lucille Storer Greiner has remarried before my death and survives me, then and in such event, this bequest shall lapse and shall fall into the residuary estate hereinafter created.'

On December 21, 1950, county judge Edmund K. Jarecki entered an order assessing and fixing a tax against this $50,000 legacy in the amount of $5588. The executor filed a petition for appeal to the county court, the order was affirmed by the county court, and the executor appeals to this court.

The executor contends that this bequest of $50,000, being pursuant to a decretal finding and judgment, was enforceable as a judgment debt against the estate and that therefore no inheritance tax could legally be assessed against such bequest.

The State contends that all the property rights here involved, both the $50,000 bequest and the widow's rights surrendered in consideration of that bequest, were rights created by Illinois statutes of descent, distribution, dower, and testate and intestate succession and are therefore subject to the inheritance tax. There is no suggestion that the motive here was tax evasion or avoidance.

Section I of the Inheritance Tax Act (Ill.Rev.Stat.1951, chap. 120, par. 375) imposes a tax on the transfer of any property or any interest therein, 'When the transfer is by will or by the intestate laws of this State, from any person dying, seized or possessed of the property while a resident of the State.' This tax has been held to be a tax on the right of succession to the beneficial interest in the property and is not a tax on the property or on the estate. 'An inheritance tax is not upon the property itself, but upon the right to succeed to the property. * * * The succession to the ownership of property being by permission of the state, the state can impose conditions in granting such privilege or permission.' People v. Griffith, 245 Ill. 532, 92 N.E. 313, 315; People v. Union Trust Co., 255 Ill. 168, 99 N.E. 377, L.R.A.1915D, 450; In re Estate of Johnson, 389 Ill. 425, 59 N.E.2d 825.

The law is well settled that a contract to devise or bequeath property is a valid and binding contract and will be enforced, Anson v. Haywood, 397 Ill. 370, 74 N.E.2d 489, and we have held that where the contract is to bequeath a definite sum of money or property of specific value, no title passes under the contract but the beneficiaries become creditors of the estate to that extent; and if the only purpose of the will is to carry out the terms of an existing contract, the right of the succession to the beneficial interest in the property arises...