In re Austin's Estate

• Decision Date: 06 July 1926
• Docket Number: 1367
• Citation: 35 Wyo. 176,246 P. 459
• Parties: IN RE AUSTIN'S ESTATE; v. AUSTIN LOUCKS, STATE INHERITANCE TAX COMMISSIONER
• Court: Wyoming Supreme Court

246 P. 459

35 Wyo. 176

IN RE AUSTIN'S ESTATE;

LOUCKS, STATE INHERITANCE TAX COMMISSIONER v. AUSTIN

No. 1367

Supreme Court of Wyoming

July 6, 1926

ERROR to District Court, Sheridan County, JAMES H. BURGESS, Judge.

Proceedings for the assessment of inheritance tax in the matter of the estate of George E. Austin, deceased. From an order making certain deductions in favor of Elizabeth A. Austin administratrix of deceased, Harry A. Loucks, as Inheritance Tax Commissioner of the State, brings error. Heard on motion to dismiss.

Motion to Dismiss Denied.

C. L Carter, for the motion.

The inheritance tax statute in effect on September 29, 1925 was Ch. 126, L. 1921, amended by Ch. 80, L. 1923; the order appealed from overruled an application for reassessment and is not a final order; the order fixing the tax was made June 25, 1925; neither of the orders referred to deductions complained of; the finding and decision fixing inheritance tax cannot be reviewed without a bill of exceptions; 5870 C S.; Perkins v. McDowell, 3 Wyo. 328; Seibel v Bath, 5 Wyo. 420; Syndicate Co. v. Bradley, 7 Wyo. 228; Adams v. Smith, 11 Wyo. 211; Conradt v. Lepper, 13 Wyo. 104; Schiller v. Co., 15 Wyo. 309; Beckstead v. Bank, 26 Wyo. 67; Supreme Court Rule 13. No bill of exceptions appears in the record; a bill of exceptions is necessary when the decision is not entered of record; 5867, C. S.; U.S. v. Trabing, 3 Wyo. 144; Freeburg v. Lamoureux, 12 Wyo. 44; and numerous other decisions of this court; the grounds of objection do not appear in the entry; no evidence is before the court; the nature of the deductions is a question of fact; this court cannot determine whether the court below followed the original appraisement or required a reappraisement, as provided by Sections 23-27, Ch. 126, L. 1921. If the order of September 29, 1925 was based on a motion, the exception could be preserved only by bill of exceptions; Mitter v. Coal Co., 27 Wyo. 72; Harden v. Card, 14 Wyo. 479; R. R. Co. v. Tolman, 31 Wyo. 175; Fitzpatrick v. Rogan, 28 Wyo. 231. Applications for reassessment of inheritance tax may be made under Ch. 126, Sec. 30, L. 21, and the chapter provides the procedure; the "report to inheritance tax commissioner," appearing among the papers, is no part of the record; it contains the only reference to the deductions complained of, but is insufficient to show that the deductions were in fact made; various other transcripts of journal entries are presented, none of which are a part of the record; the proceedings should be dismissed.

David J. Howell, Attorney General, and Ray E. Lee, Special Assistant Attorney General, contra.

The original assessment order was entered upon the report of the administratrix and the commissioner applied for a rehearing which, we believe, is equivalent to motion for new trial; at any rate, the action taken was in the nature of a special proceeding, and the same procedure was followed in In Re Young's Estate, Loucks, Inheritance Tax Commissioner v. Young, et al., 239 P. 286. The determination of inheritance tax due from the Austin Estate is a matter of procedure and was changed pending the probate of said estate; Ch. 78, Sec. 13, L. 1925 imposing upon the commissioner the duty of determining the tax; the repealing clause found in Sec. 33, excludes taxes accruing under previous acts; the act of 1925 took effect February 1, 1925, from which it would appear that the District Court had no jurisdiction to determine the tax and that its order should be set aside for want of jurisdiction; Gleason Inheritance Tax, (4th Ed.) 272; 36 Cyc. 1215; People v. McGoorty, (Ill.) 110 N.E. 791; Carpenter v. Pennsylvania, 17 How. (U.S.) 456, 15 L.Ed. 127; Ferry v. Campbell, (Ia.) 81 N.W. 604. If the manner of collecting inheritance tax is merely a matter of procedure, the 1925 statute should control; Laird v. Carton, 25 L. R. A. N. S. 189; Boucofski v. Jacobsen, 26 L. R. A. N. S. 898; C. B. & Q. R. Co. v. Jones, 37 N.E. 247.

POTTER, Chief Justice. BLUME and KIMBALL, JJ., concur.

OPINION

POTTER, Chief Justice.

This cause has been submitted upon a motion to dismiss the proceeding in error, the motion stating as grounds that there is no bill of exceptions in the case and that there was no motion for new trial filed or presented to the district court and no order overruling such motion, and that therefore there is nothing presented to this court by the petition or record herein.

The statement of the grounds is preceded by the assertion that the finding and decision attempted to be appealed from was the determination of an issue of fact. But we find upon examination of the record that substantially everything in the record was matter of record proper in the district court, consisting mostly of orders in the probate proceeding entered of record in the proper journal or book provided for by statute and certified into the record by the clerk of the district court as copies of journal entries. The cause involves the determination of the amount of inheritance tax to be paid out of the funds of the estate of George E. Austin, deceased; the district court having determined, as stated in its order, the amount of such tax on June 25, 1925, as "in compliance with Sec. 19, Ch. 126, S. L. 1921;" it appearing among the proceedings of record that the date of the death of the decedent was September 11, 1924, in Sheridan County, in this state, of which county the decedent was and had been a resident. There was thereafter a denial of an application by the inheritance tax commissioner of the state for a re-assessment, and also a denial of a second application of that character.

The cause is here on error, alleging that certain deductions of the district court were illegal; said deductions being $ 3336 costs of conducting the business of the estate subsequent to the decedent's death, and $ 1200 as compensation for the services of the administratrix in addition to the full amount of her commission allowed by law. We do not understand from the record here that there was any disputed fact in the case; but purely and simply a dispute as to the law concerning the validity of the deductions, the amount of which was determined, not upon disputed evidence, but by the facts shown by the record itself in the district court. The court's order of June 25, 1925, purporting to determine the amount of the tax was based upon an examination of the records, as recited in the order.

A bill of exceptions is never necessary except to preserve as a part of the record that which would not otherwise go into it or be considered as a part of it. See Seibel v. Bath, 5 Wyo. 409, 40 P. 756; Underwood v. David, 9 Wyo. 178, 61 P. 1012; Schmidt v Bank, 29 Wyo. 260, 212 P. 651. In the civil code the record proper is described, and has been described in many of our decisions, as made up from the petition, the process, the return, pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court. Comp. Stat. 1920, Sec. 5903. It is provided further in the civil code that when the decision is not entered of record, or the grounds of objection do not sufficiently appear in the entry, or the exception is to the opinion of ...