In re Alice Howard's Estate
| Citation | 68 A. 513,80 Vt. 489 |
| Parties | IN RE ALICE HOWARD'S ESTATE |
| Decision Date | 16 January 1908 |
| Court | Vermont Supreme Court |
Special Term at Brattleboro, November, 1907.
APPEAL by J. E. Cushman, as Commissioner of State Taxes, from an order and decree of the probate court as to the amount of collateral inheritance tax for which the distributees of the estate of Alice Howard are liable. George C. Brockway administrator. Heard on an agreed statement of facts at the June Term, 1907, Windsor County, Waterman, J., presiding. Judgment, pro forma, that said distributees are subject to the collateral inheritance tax imposed by No. 30, Acts 1904 on their right to succeed to the proceeds of the debts in question. The administrator excepted. The opinion fully states the case.
Judgment affirmed with costs to the State. To be certified to the probate court.
Frederick C. Southgate for the administrator.
Present ROWELL, C. J., TYLER, MUNSON, and WATSON, JJ.
Alice Howard, domiciled at Hartford, this State died about June 1, 1904, intestate. Adminstration was granted on her estate June 2, 1904. The final decree of distribution was made March 31, 1905, whereby the net residue of the estate after the payment of debts, etc., was decreed to collateral relatives, the same persons who were by the laws of this State the heirs at law of the decedent at the date of her death. Among the assets of the estate so distributed were proceeds of certain notes against persons residing, and secured by mortgage on real estate, without this State, which notes and mortgage were in her physical possession and held by her here at the time of her decease. The administrator, before the final decree, collected the several sums due on the notes and brought the proceeds, amounting to $ 3705, into this State, where the same remained until distributed as a part of the assets under that decree. No claim is made that any tax was ever lawfully paid to any other state or government for or on account of any distributive share, or any portion of these assets. The question is, Are the collateral relatives taking such distributive shares of the proceeds of said notes subject to a collateral inheritance tax thereon, under the laws of this State? By Laws of 1904, No. 30, sec. 1, every person and every society or institution, other than those there exempted, "that shall receive in trust or otherwise any legacy or distributive share comprised of or arising from property or any interest therein passing by will, the law of descent or the decree of a court in this State, from any deceased person who owned such property at the date of his decease shall, except as herein otherwise provided, be subject to a tax for the use of the State equal to five per cent: of the value in money of such legacy or distributive share." By section 3, if a similar tax shall have been lawfully paid to another state or government, not the United States, for or on account of a legacy, distributive share, or any part thereof which should thereafter be decreed by a probate court of this State to a legatee or heir liable to the tax imposed by section one, such legatee or heir shall be liable to pay to this State only such part of the tax as would make the entire taxes both within and without the State based on such portion of a legacy or distributive share taxed in such other state or government equal to five per centum of the total value thereof to be determined by the provisions of that act.
By No. 46, Acts of 1896, "All property within the jurisdiction of this State, and any interest therein, * * *, which shall pass by will or by the intestate laws of this State, * * *, shall be subject to a tax," etc. In the matter of Joyslin's Estate, 76 Vt. 88 the testatrix died domiciled in this State, and the question was, as here, whether debts due her from non-residents of the State were to be included in fixing the amount of the estate subject to such tax. It was contended in behalf of the State that they should be. But it was held that the phrase "within the jurisdiction of this State," meant within its probate jurisdiction; that under the settled law of the State, on the death of the creditor, such debts became bona notabilia, hence they were not within this jurisdiction; that the meaning of the phrase, "pass by will or by the intestate laws of this State." was, to pass by virtue and force of the law of the State governing testate or intestate succession; and consequently that such debts were not included. The opinion in that case was filed November 30, 1903, and presumably was known to the Legislature at the time of the enactment of No. 30, of the Laws of 1904. It will be noticed that under the later act property forming the basis of the tax is not limited to that within the probate jurisdiction of this State, as in the earlier law: it includes not only property which shall pass by will or by the intestate laws of the State, as did the earlier act, but it includes also property which shall pass by "the decree of the court of this State." Thereunder the test is not whether the property was within the probate jurisdiction of this State, but whether it passes in one of the ways specified. It is argued in behalf of the administrator that property in a foreign jurisdiction passes by its laws whether subject to a succession tax there...
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