Harber v. Whelchel

• Decision Date: 10 October 1923
• Docket Number: 3674.
• Citation: 119 S.E. 695,156 Ga. 601
• Parties: HARBER ET AL. v. WHELCHEL, ORDINARY, ET AL.
• Court: Georgia Supreme Court

119 S.E. 695

156 Ga. 601

HARBER ET AL. v. WHELCHEL, ORDINARY, ET AL.

No. 3674.

Supreme Court of Georgia

October 10, 1923

Syllabus by the Court.

Where a father gives to his children his lands, and by deeds conveys the same to them, reserving the use and enjoyment thereof to himself for life, and postponing the possession and enjoyment thereof by his children until after his death, such lands are subject to the inheritance tax imposed by the laws of this state.

Where a father conveyed his lands by deeds as above set out, and disposed of his personal estate by will, and where the personalty of his estate after his death was appraised, and the inheritance tax thereon was paid by his executors, such appraisement of his personalty, and the payment of the inheritance tax due thereon, will not preclude the proper officials from having such lands assessed for the purpose of collecting the inheritance tax due thereon and from collecting the same.

The chancellor did not err in dismissing the petition on demurrer, and in declining to grant a temporary injunction.

Error from Superior Court, Hall County; J. B. Jones, Judge.

Suit by W. Y. Harber and others against W. D. Whelchel, Ordinary, and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

W. W Stark and E. C. Stark, both of Commerce, for plaintiffs in error.

Wm. P Whelchel and B. P. Gaillard, Jr., both of Gainesville, for defendants in error.

HINES J. (after stating the facts as above).

1. Where a father by deeds conveys to his children his lands reserving to himself the full use and control of the same for and during his natural life, and postponing the enjoyment thereof by his children until after his death, such deeds vest the present legal title in the children, but postpone the use, enjoyment, and possession of the grantees until after the death of the grantor. This court has held that these deeds vested the title in præsenti in the grantees. Harber v. Harber, 152 Ga. 98, 108 S.E. 520. This being so, are these lands subject to the inheritance tax imposed by the law of this state? They are so subject, whether the question is to be determined by the inheritance tax act of August 19, 1913 (Acts 1913, p. 91), or by the act of August 19, 1919 (Acts 1919, p. 58). By the very letter of both acts, they are subject to the inheritance tax. The language of the act of 1913 (section 1) is:

"All property within the jurisdiction of this state, real and personal, and every estate and interest therein, whether belonging to the inhabitants of this state, or not, which shall pass on the death of a 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," shall be subject to this tax.

Practically this is the language of the act of 1919. By this act (section 1):

"All property * * * which shall pass on the death of the decedent * * * by deed, grant, or gift, except in cases of a bona fide purchase for a full

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