Humphreys v. State

• Decision Date: 22 March 1904
• Docket Number: 8268
• Citation: 70 Ohio St. 67,70 N.E. 957
• Parties: Humphreys, Executor, Et Al. v. The State Of Ohio Et Al
• Court: Ohio Supreme Court

70 N.E. 957

70 Ohio St. 67

Humphreys, Executor, Et Al. v. The State Of Ohio Et Al

No. 8268

Supreme Court of Ohio

March 22, 1904

Collateral inheritance tax - Section 2731-1, Revised Statutes - Appeal may be taken from probate court, when - Appeal bond - Section 6408, Revised Statutes - Perfection of appeal - Sections 6411 and 5227, Revised Statutes - Incorporated boards and societies for public charity - Liable to collateral tax, when - Construction of statutes - Constitutional law.

1. Where the probate court, in the settlement of the estate of a decedent, determines the liability of a devise, legacy bequest or inheritance to pay a collateral inheritance tax under the provisions of section 2731-1, Revised Statutes appeal may be taken by either party to the controversy regarding the tax, from the judgment of the probate court, to the court of common pleas as authorized by section 2731-13 Revised Statutes; and where the state, or the prosecuting attorney in behalf of the state, takes the appeal, it may be done without giving an undertaking for such appeal, and without filing the written notice of an intention to appeal provided for in section 6408, Revised Statutes. The appeal may be perfected by either party according to the provisions of sections 6411 and 5227, Revised Statutes.

2. Boards and societies and auxiliaries thereto, which are incorporated and organized under the laws of other states, for "purposes of purely public charity or other exclusively public purposes," are not "institutions" of that class in this state within the meaning of the latter clause of section 2731-1, Revised Statutes; and where they are entitled to receive property within the jurisdiction of this state, by deed of gift, bequest or devise, such gift, bequest or devise is liable to a collateral inheritance tax as provided in said section, although some of the charitable work, operations and enterprises of the institutions so incorporated and organized are carried on within this state.

3. The statute so construed is not obnoxious to the second section of our bill of rights, nor to the fourteenth amendment to the constitution of the United States.

On July 9, 1888, Isabella Brown, a resident of Cincinnati, duly executed her last will and testament, in which she made some bequests to her sister, Mrs. Atkins, to a nephew, Meredith Atkins, and other bequests to Mrs. Gass, of Camden, New Jersey, in trust, with provision therein that the income arising from the money so bequeathed should be paid to two nieces, Harriet and Mary Gass, until each should arrive at the age of thirty-two years, when the principal sum should be paid them equally.

The testator bequeathed to the American Bible Society the sum of $5,000; to the American Tract Society, $5,000; and to the American Sunday School Union, $2,000. Bequests were also made to certain missionary societies and other benevolent religious organizations which are named separately in the will and which are also plaintiffs in error.

This will was admitted to probate on September 19, 1899, and John E. Humphreys, executor, who was, by the terms of a codicil to the will, appointed executor, entered upon the execution of the trust.

In progress of the settlement of the estate a question arose in the probate court concerning the payment of an inheritance tax on the several legacies made by the will to the various religious societies and boards, and the executor, Humphreys, submitted to the probate court his petition to have the matter determined.

The prosecuting attorney of Hamilton county, appeared in behalf of the state, and contended that each of said legacies was subject to a collateral inheritance tax. After hearing, that court decided that no inheritance tax is payable on any of the legacies to the religious societies and boards, and ordered the executor to distribute the estate accordingly.

The prosecuting attorney gave notice of appeal from so much of said order as finds that an inheritance tax is not payable upon the legacies to the American Bible Society, and the several other religious societies and boards, naming each in the notice.

The appeal was filed in the court of common pleas, where a motion was made by the appellees to dismiss the appeal on the ground that no appeal bond had been given, nor was written notice of intention to appeal filed, and on the general ground that appellant had not otherwise complied with the law for such appeals. The court of common pleas overruled the motion and the appellees excepted. The case was then heard on the merits and the court found and adjudged that each of said legacies is liable to a tax of five per centum of the amount of such legacies, with interest thereon from August 25, 1900. A motion for new trial was overruled, a bill of exceptions taken embracing the evidence adduced at the hearing, and the case was taken on error to the circuit court, where the judgment of the court of common pleas was affirmed. Error is prosecuted in this court to reverse the judgments of the circuit and common pleas courts.

Additional facts appear in the opinion.

Mr. Lawrence Maxwell, Jr.; Mr. John E. Humphreys and Mr. Joseph S. Graydon, for plaintiffs in error, cited and commented upon the following authorities:

Santa Clara County v. Railroad Co., 18 F. 385 (affirmed 118 U.S. 394); Railway Co. v. Ellis, 165 U.S. 150; Railway Co. v. New Jersey, 31 N. J. Law, 531; Parker Collector v. Insurance Co., 42 La. An., 428; 7 So. 599; San Francisco v. Insurance Co., 74 Cal. 113; In re Johnson's Estate, 73 Pac. Rep., 424; Estate of Leland Stanford, 58 Pac. Rep., 462; Re Mahoney's Estate, 133 Cal. 180; Magoun v. Bank, 170 U.S. 283; State v. Ferris, 53 Ohio St. 314; Southern Gum Co. v. Laylin, 66 Ohio St. 578; Browne v. Wallace, 66 Ohio St. 57; Gerke v. Purcell, 25 Ohio St. 229; Alfred University v. Hancock, 46 A. 178; In re Prime's Estate, 136 N.Y. 347; Rice v. Bradford, 180 Mass. 545; Morawetz on Corp. (2 ed.), sec. 1046; State v. Standard Oil Co., 49 Ohio St. 137; Eidman v. Martinez, 184 U.S. 578; In re Enston, 113 N.Y. 174; In re Swift's Estate, 137 N.Y. 77; Gurr v. Scudds, 11 Exch., 190; U. S. v. Wigglesworth, 2 Story, 369; U. S. v. Watts, 1 Bond., 580; Fox v. Commonwealth, 16 Gratt., 1; Sprague v. Fletcher, 69 Vt., 69; 90 O. L., 17; sec. 6408, Rev. Stat.; Ord. 1787, art. 4; Const. 1851, schedule sec. 1; sec. 1977, U. S. Rev. Stat.

Messrs. Hoffheimer, Morris & Sawyer, prosecuting attorneys, for defendants in error, cited and commented upon the following authorities:

Keck v. Douglass, Assignee, 3 Circ. Dec., 629; 6 C. C. R., 649; Browne v. Wallace, 66 Ohio St. 57; Layer, Guard. v. Schaber, Admr., 57 Ohio St. 234; Act of April 6, 1900, 94 O. L., 101; Hooper v. Shaw, 176 Mass. 190; art. 4, sec. 2, Federal Const.; Louisiana v. Pilsbury, 105 U.S. 278; Mahoney's Estate, 133 Cal. 180; Sprague v. Fletcher, 69 Vt. 69; sec. 1978, U. S. Rev. Stat.; State v. Ferris, 53 Ohio St. 314; Ord. 1787, art. 4; Dos Passos, sec. 18; Lee v. Sturges, 46 Ohio St. 153; In re Prime, 136 N.Y. 347; Balleis' Estate, 144 N.Y. 132; In re Merriam's Estate, 73 Hun, 587; University v. Hancock, 46 A. 178; U. S. v. Perkins, 163 U.S. 625; Minot v. Winthrop, 162 Mass. 113 (126); People v. Seaman's Friend Society, 87 Ill. 246; Hagerty v. State, 55 Ohio St. 613; Eyre v. Jacob, 11 Gratt., 422; Tyson v. State, 28 Md. 577; Pullen v. Wake Co., 66 N. C., 361; Peters v. City, 76 Va. 927; Schoolfield v. City, 78 Va. 367; Paul v. Virginia, 8 Wall., 168; Fire Ins. Co. v. Oliver, 10 Wall., 410; Ducat v. Chicago, 10 Wall., 410; Pembina Consol., etc., Co. v. Pennsylvania, 125 U.S. 181; Horn, etc., Mining Co. v. New York, 143 U.S. 305; State v. Hamlin, 86 Me. 495; High v. Shoemaker, 22 Cal. 363; Canal Co. v. Outagamie County, 76 Wis. 587; Northern Pacific Ry. Co. v. Barnes, 51 N.W. 386; Hughes v. Cairo, 92 Ill. 339; Coal Co. v. Finlen, 124 Ill. 666; Cincinnati, etc., Railroad Co. v. Kentucky, 115 U.S. 321; Commonwealth v. Brewing Co., 145 Pa. St., 83; Insurance Co. v. New Orleans, 1 Woods, 85; State v. Lathrop, 10 La. An., 398; Milwaukee v. Helfenstein, 16 Wis. 136; Singer Mfg. Co. v. Wright, 33 F. 121; Express Co. v. Seibert, 142 U.S. 339; Railroad v. Pennsylvania, 136 U.S. 114; Telegraph Co. v. Mayer, 28 Ohio St. 521; Gas Light Co. v. Downey, 127 Ill. 201; Commonwealth v. Light Co., 145 Pa. St., 147.

PRICE J. It is said in the opening of the brief for plaintiffs in error, that this proceeding involves two questions of law:

"1. Whether the appeal from the probate court to the court of common pleas was duly taken.

"2. Whether the legacies are taxable."

1. The right to appeal in cases like the present is conferred by section 2731-13, Revised Statutes, which is: "The court of probate, having either principal or auxiliary jurisdiction of the settlement of the estate of the decedent, shall have jurisdiction to hear and determine all questions in relation to said tax that may arise, affecting any devise, legacy or inheritance under this act, subject to appeal as in other cases, and the prosecuting attorney shall represent the interests of the state in any such proceedings."

It is claimed for plaintiffs in error, that the words subject to appeal as in other cases, mean that the remedy of appeal must be exercised according to the general rule provided for appeal from the probate to the court of common pleas, which is found in section 6408, Revised Statutes. That section provides in substance, that the person desiring to take an appeal, shall, within twenty days after the making of the order, decision or decree from which he desires to appeal, give a written undertaking * * * to the adverse party, with one or more sufficient sureties, to be approved by the probate judge, and conditioned, etc., etc.

But when the person...