In re Bullen's Estate

• Decision Date: 22 April 1915
• Docket Number: 2696
• Citation: 151 P. 533,47 Utah 96
• Parties: In re BULLEN'S ESTATE
• Court: Utah Supreme Court

151 P. 533

47 Utah 96

In re BULLEN'S ESTATE

No. 2696

Supreme Court of Utah

April 22, 1915

Rehearing Denied September 10, 1915.

Appeal from District Court, First District; Hon. J. D. Call, Judge.

In the matter of the estate of Newell Bullen, deceased.

Judgment fixing an inheritance tax on the property of the estate. State Treasurer appeals.

AFFIRMED.

A. R Barnes, Attorney General, and E. V. Higgins and G. A Iverson, Assistant Attorneys General, for appellant.

J. C. Walters, for respondent.

STRAUP C. J. McCARTY, J., FRICK, J., concurring.

OPINION

STRAUP, C. J.

The question is this: Is the widow's one-third interest in her husband's real property subject to the inheritance tax? The statute (Comp. Laws 1907, section 1220x) is:

"All property within the jurisdiction of this state and any interest therein, whether belonging to the inhabitants of this state or not, and whether tangible or intangible, which shall pass by will or by the statutes of inheritance of this or any other state, or by deed, grant, sale, or gift made or intended to take effect in possession or enjoyment after the death of the grantor or donor, to any person in trust or otherwise, shall be subject to a tax of five per cent. of its market value above the sum of $ 10,000, after the payment of all debts, for the use of the state," etc.

We have no statutes called "statutes of inheritance." We have corresponding statutes called "succession." Let it be assumed they are synonymous. "Succession," as defined by the statute (Comp. Laws 1907, section 2824), "is coming in of another to take the property of one who dies without disposing of it by will." The next section provides:

"The property, both real and personal, of one who dies without disposing of it by will, passes to the heirs of the intestate, subject to the control of the court, and to the possession of any administrator appointed by the court for the purpose of administration."

Then section 2826 is:

"One-third in value of all the legal or equitable estates in real property possessed by the husband at any time during the marriage, and to which the wife had made no relinquishment of her rights, shall be set apart as her property in fee simple if she survive him. * * * Property distributed under the provisions of this section shall be free from all debts of the decedent, except those secured by mechanics' or laborers' liens for work or labor done or material furnished exclusively for the improvement of the same, and except those created for the purpose thereof, and for taxes levied thereon," etc.

By section 2828 it is provided that if the deceased die intestate leaving a husband or wife and one child, or the issue of one child, the estate goes in equal shares to the surviving husband or wife and child; if more than one child, one-third to the surviving husband or wife and the remainder in equal shares to the children; if the decedent leaves no issue; then all the real estate and personal property, if not over $ 5,000, goes to the surviving husband or wife; if over $ 5,000, the excess goes one-half to the surviving husband or wife and one-half to the decedent's father and mother in equal shares, etc.

The decedent died intestate, leaving a wife and more than one child. His estate was appraised at $ 51,243. The court deducted from that "the exemption allowed by law, $ 10,000," all debts, expenses and costs, amounting to something over $ 23,000, and also "the widow's one-third interest in the husband's real estate, amounting to $ 12,375. That left a balance of about $ 15,827, on which the court allowed an inheritance tax of five per cent., or about $ 791. From that judgment the state treasurer appeals, and contends that the wife's one-third interest in realty was also subject to the tax. It is not contended that all property of the decedent, in excess of the exemptions, is in express terms subject to the tax. It is contended, however, that "all property * * * which shall pass by will, or by the statutes of inheritance," includes the widow's one-third interest. Her interest did not pass by will. The question then is: Did it pass by the "statutes of inheritance?"

As to that the authorities divide. By the statutes of Illinois it is provided that all property of the decedent "which shall pass by will or by the intestate laws of the state," in excess of the exemptions, is subject to an inheritance tax. In that state:

"The surviving husband or wife shall be endowed of one-third of all the lands whereof the deceased husband or wife was seised of an estate of inheritance, at any time during the marriage, unless the same shall have been relinquished in legal form."

Under these statutes it was held (Billings v. People, 189 Ill. 472, 59 N.E. 798, 59 L. R. A. 807) that the wife's interest in the realty of her deceased husband was subject to the tax. This, on the theory that all property of a decedent passes in but two ways, by will "or by descent in the modes provided by law; and when it does not pass by will it generally passes by law--that is, by the law governing the disposition of property of persons dying intestate." The court thus held the wife an heir of her husband, and, as such, took her one-third interest under the "intestate laws of the state."

The question was also before the California courts. There the rule of community property prevails. But under that rule the legal title of the community property is in the husband, who has the absolute dominion and control of it; and so long as the community exists the wife's "interest is a mere expectancy and possesses none of the attributes of an estate either at law or in equity." Packard v. Arrelanes, 17 Cal. 525. The inheritance tax act of California also provided that all property which "shall pass by will or by the intestate laws of this state" was subject to the tax. In Re Burdick, 112 Cal. 387, 44 P. 734; Spreckels v. Spreckels, 116 Cal. 339, 48 P. 228, 36 L. R. A. 497, 58 Am. St. Rep. 170, and Re Moffitt, 153 Cal. 359, 95 P. 653, 1025, 20 L. R. A. (N. S.) 207, it was held that the wife's interest in community property was subject to the inheritance tax. But that conclusion, and as stated by that court In Re Kennedy's Estate, 157 Cal. 517, 108 P. 280, 29 L. R. A. (N. S.) 428, "was based solely on the proposition, established in this state by several prior decisions, that the wife takes such property solely by succession as an heir of the husband, and therefore, by the intestate laws of this state." Thus the California and Illinois courts proceed on the theory that the wife is an heir of her husband, and as such takes her interest in the husband's real property, though that interest is absolute, and one of which the husband cannot deprive her by will or otherwise by his voluntary act without her consent.

The question was also before the Idaho court. There the rule of community property also prevails. In that state the inheritance tax law was similar to that of California and Illinois. That court, in Kohny v. Dunbar, 21 Idaho 258, 121 P. 544, 39 L. R. A. (N. S.) 1107, Amn. Cas. 1913D, 492, reached a different conclusion, and held that the wife is not an heir of her husband, and that her interest in the community property is not subject to the inheritance tax. That view is supported by McKay on the Law of Community Property, page 542; Marsal's Succession, 118 La. 212, 42 So. 778, and other cases referred to in the opinion.

The question also was before the Nebraska court. There the rule of community property does not prevail. The surviving husband or wife, as here, takes his or her estate absolute, a one-fourth interest of all the real estate of which the wife or husband during coverture was seised of an estate of inheritance, either legal or equitable, and not relinquished, etc. The property there subject to the inheritance tax was, as in Illinois and California, all property of the deceased, in excess of the exemptions, "which shall pass by will or by the intestate laws of this state." That court, first, in the case of In re Sanford's Estate, 90 Neb. 410, 133 N.W. 870, 45 L. R. A. (N. S.) 228, following Illinois, held the widow's interest subject to the tax. On rehearing (91 Neb. 752, 137 N.W. 864, 45 L. R. A. [N. S.] 236) that opinion was reversed, and the conclusion reached that her interest was not subject to the tax. The court, after saying that it was contended that the value of her interest should be deducted from the appraised value of the estate, stated:

"It would seem, from a review of the cases decided since our opinion was adopted, that such is the weight of authority. The reason for the rule seems to be that the widow takes her dower interest in the estate of her deceased husband by operation of law, that she could not be deprived of it by his will, that it is something which belongs to her absolutely and independent of any right of inheritance or succession, and therefore so much of the estate as belonged to her by right is not chargeable with the inheritance tax. We are not inclined to place ourselves in opposition to the weight of authority on this question, and to this extent our * * * judgment is modified."

The question was again before that court In Re Estate of Strahan, 93 Neb. 828, 142 N.W. 678, where the same conclusion was reached. There the court said:

"It has been held by the great weight of authority that dower is not immune because it is dower, but because it, like the right to the homestead and to the distributive share of the widow of the estate of her deceased husband, belonged to her inchoately during his life, and vested fully in her at his death. The widow's share of the estate of her deceased husband, by the present inheritance law, is given to her in lieu of dower, and it follows that the...