Helser v. State
| Decision Date | 04 April 1916 |
| Docket Number | 24. |
| Parties | HELSER v. STATE. |
| Court | Maryland Court of Appeals |
Appeal from Orphans' Court, Washington County.
"To be officially reported."
Petition by Henry Helser, ancillary administrator, against the State of Maryland. From a judgment dismissing the petition petitioner appeals. Order affirmed.
J.O Snyder, of Hagerstown, for appellant. Scott M. Wolfinger, of Hagerstown, for the State.
John Helser, of Franklin county, Pa., died intestate at his home in said county on the 10th of November, 1914, leaving as his only next of kin and heirs at law one brother, a sister, and a number of nephews and nieces, all of whom were nonresidents of the state of Maryland, except his brother, Henry Helser who resided in Washington county, Md., and a niece residing in Cumberland.
At the time of his death the decedent owned some timber land and an undivided one-half interest in a farm in Washington county about $1,700 deposited in the Second National Bank of Hagerstown, Maryland, and a number of promissory notes of residents of Washington county, secured by mortgages on land in that county, which notes and mortgages, amounting to about $40,000, were in his possession at his home in Franklin county.
Letters of administration were granted in Franklin county, Pa., to the decedent's nephew, Helser Cook, with whom he was residing at the time of his death, and about a week later, Henry Helser, the decedent's brother, applied for and obtained from the orphans' court of Washington county ancillary letters of administration for the purpose of collecting the money in the banks and the notes and mortgages of the residents of that county. Shortly after receiving letters of administration, Henry Helser, through his attorney, J. O. Snyder, Esq., who had been counsel for the decedent, and who also aided Helser Cook in securing letters of administration in Franklin county, obtained an order of the orphans' court of Washington county authorizing him to assign or release said mortgages, and on the 24th of September, 1915, settled in said court his first account, in which he was charged with the cash in the banks and sums received on account of the mortgages and other debts due the decedent to the amount of $46,427.66, and allowed for costs of administration, commissions, and debts paid, amounting to $6,814.75, leaving due the estate $39,612.93, from which was deducted and paid to the register of wills of Washington county a collateral inheritance tax of 5 per centum, amounting to $1,980.64, and the balance distributed to the Pennsylvania administrator.
On the 16th of November, 1915, Henry Helser, ancillary administrator, filed a petition in the orphans' court of Washington county alleging that the amount collected by him on the mortgages was not subject to the collateral inheritance tax, and that the same was illegally, improperly, and erroneously charged in the account, and praying that the account be reopened and corrected accordingly. The orphans' court passed an order setting the petition down for a hearing, and requiring a copy of the same to be served on the state's attorney for Washington county. The state's attorney filed an answer for the state of Maryland asserting that the tax was properly allowed and payable to the state, and after a hearing the orphans' court passed an order dismissing the petition, and this appeal is from that order.
Section 120 of article 81 of the Code provides that:
"All estates, real, personal and mixed, money, public and private securities for money of every kind passing from any person who may die seized and possessed thereof, being in this state, *** to any person or persons, bodies politic or corporate, in trust or otherwise, other than to or for the use of the father, mother, husband, wife, children and lineal descendants of the grantor, bargainor or testator, donor or intestate, shall be subject to a tax of five per centum in every hundred dollars of the clear value of such estate, money or securities; and all executors and administrators shall only be discharged from liability for the amount of such tax, the payment of which they be charged with, by paying the same for the use of this state, as hereinafter directed."
The appellant contends that as the intestate was a resident of Pennsylvania, and the mortgages and mortgage notes were in his possession in Franklin county at the time of his death, under the rule mobilia sequuntur personam the situs of these debts followed the domicile of the creditor, and they were not taxable under the section of the Code referred to.
Even if we were to assume that, notwithstanding the express terms of the statute, the rule relied upon should be given effect in determining what property of a decedent is subject to the tax in question, there still remains an insuperable bar to the particular relief prayed in the appellant's petition. The record and evidence taken before the orphans' court show that all the facts relied upon by the appellant were known to him or his counsel prior to the statement of his account, that the account was prepared under the supervision of his counsel and the register of wills, was approved by his counsel and sworn to by the appellant before it was passed by the orphans' court, and that the amount of the tax was paid to the register of wills of Washington county. Under such circumstances the tax must be treated as having been voluntarily paid, and the settled rule in this state is that, in the absence of some statutory provision authorizing it, taxes voluntarily paid under a mistake of law cannot be recovered back. Baltimore v. Lefferman, 4 Gill, 425, 45 Am. Dec. 145; Morris v. Baltimore, 5 Gill, 244; Lester v. Baltimore, 29 Md. 415, 96 Am. Dec. 542; George's Crk. C. & I. Co. v. Co. Com., 59 Md. 255; Baltimore v. Hussey, 67 Md. 112, 9 A. 19; Baltimore v. Harvey, 118 Md. 275, 84 A. 487. the fact that the amount paid is still in the hands of the register of wills cannot alter the result. Under section 121 of article 81 of the Code it is the duty of the executor or administrator to collect and pay the tax to the register of wills "for the use of the state," and sections 143 and 144 require the register of wills to pay it to the treasurer of the state and make his bond liable for his failure to do so. The payment of the tax to the register of wills is therefore, so far as the executor or administrator is concerned, a payment to the state, and the register of wills in a suit by the state to recover the amount so paid could not defend on the ground that the tax had been unlawfully collected and paid to him. Waters v. State, 1 Gill, 302; O'Neal v. School Commissioners, 27 Md. 227; State v. B. & O. Railroad Company, 34 Md. 344; Frownfelter v. State, 66 Md. 80, 5 A. 410; Lynn v. Cumberland, 77 Md. 449, 26 A. 1001. The alleged error in the account is the allowance to the administrator of the amount of the tax paid by him to the register of wills, and as the orphans' court would have no authority to order the register of wills to repay that amount, a restatement and correction of the account in the particular mentioned would afford the administrator no relief, and the petition was therefore properly dismissed.
But can it be said that the mortgages in question were not an estate or property or money in this state within the meaning of the section of the Code imposing the collateral inheritance tax? The cases of Latrobe v. Baltimore, 19 Md. 22, and Baltimore v. Hussey, supra, cited by the appellant, deal with a property tax, while the tax we are here considering is on the transmission of estates. State v. Dalrymple, 70 Md. 294, 17 A. 82, 3 L. R. A. 372; Fisher v. State, 106 Md. 104, 66 A. 661; Washington Hospital v. Mealey, 121 Md. 274, 88 A. 136, 140, 48 L. R. A. (N. S.) 373, Ann. Cas. 1915B, 1050. The rule relied upon by the appellant, even as to a property tax, is not of universal application, and always gives way to provisions of a statute fixing the situs of property for the purpose of taxation, where those provisions are not in conflict with the Constitution. 1 Cooley on Taxation (3d Ed.) 86, 87; 37 Cyc. 1560-1562; Baldwin v. Washington County, 85 Md. 145, 36 A. 764; Allen v. National State Bank, 92 Md. 509, 48 A. 78, 52 L. R. A. 760, 84 Am. St. Rep. 517. The collateral inheritance tax is a...
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