In re Estate of Strahan

• Decision Date: 16 June 1913
• Docket Number: 17,912
• Citation: 142 N.W. 678,93 Neb. 828
• Parties: IN RE ESTATE OF J. M. STRAHAN. FRANK E. STRAHAN ET AL.; MARY W. STRAHAN, APPELLANT, v. WAYNE COUNTY, APPELLEE
• Court: Nebraska Supreme Court

142 N.W. 678

93 Neb. 828

IN RE ESTATE OF J. M. STRAHAN. FRANK E. STRAHAN ET AL.; MARY W. STRAHAN, APPELLANT, v. WAYNE COUNTY, APPELLEE

No. 17,912

Supreme Court of Nebraska

June 16, 1913

APPEAL from the district court for Wayne county: ANSON A. WELCH JUDGE. Reversed and dismissed as to Mary W. Strahan.

REVERSED.

Kingsbury & Hendrickson, for appellant.

A. R Davis and F. S. Berry, contra.

Field Ricketts & Ricketts, Lincoln Frost, W. L. Pope, S. L. Geisthardt and Tibbets, Anderson & Baylor, amici curiae.

BARNES, J. ROSE, J., dissenting. FAWCETT, J., not sitting. SEDGWICK, J., concurring. LETTON, J., dissenting in part.

OPINION

BARNES, J.

Appeal from a judgment of the district court for Wayne county, fixing the amount of an inheritance tax due from the estate of one J. M. Strahan, deceased. It appears that Strahan, a resident of the state of Iowa, died intestate on the 14th day of August, 1907, and left surviving him Mary W. Strahan, his widow, two adult sons, and three married daughters, hereafter designated as the heirs. At the time of Strahan's death he was the owner of certain real estate in Wayne county, Nebraska, valued at $ 133,570, and an interest in the First National Bank of Wayne represented by 210 shares of its capital stock, valued at $ 29,190. On the 19th day of July, 1912, the county attorney filed a petition in the county court of Wayne county, as provided by law, claiming the inheritance tax in question, and alleging that no part of said tax had been paid. On the filing of the petition the county court appointed an appraiser to value the said estate, and on the same day the appraiser gave notice, as provided by law, to the widow and the heirs that he would proceed to take testimony concerning the value of the estate, at his office in the First National Bank building in the city of Wayne, Nebraska, on August 3, 1912, at 10 o'clock A. M. The evidence was taken at the time and place stated in the notice. The appraiser duly filed his report in the county court on August 7, 1912, fixing the value of the estate at the sums above mentioned. On that day the widow and the heirs made a general appearance in the action, and requested the court to withhold its decree on the report filed by the appraiser until September 16, 1912, in order that they might file objections to the report. The request was granted. The widow and the heirs filed their objections, and a hearing was had on the 16th day of September, 1912, at which time the tax in question was assessed. The widow and the heirs prosecuted an appeal to the district court for Wayne county. The cause came on for hearing on the 20th day of November, 1912, and resulted in a finding that the total value of the estate was $ 163,111.36. The court further found that the interest of the widow therein was $ 40,752.84; that she was entitled to exemptions in the sum of $ 10,000, leaving a balance of $ 30,752.84 subject to the inheritance tax; that the interest of each of the heirs in the remainder of the estate was $ 24,451.70, less an exemption of $ 10,000 each, leaving the interest of each of them subject to the inheritance tax in the amount of $ 14,451.70; that no part of the said inheritance tax had been paid, to all of which findings the widow and the heirs excepted. It was thereupon ordered, adjudged and decreed that an inheritance tax be assessed against the interest of the widow in the sum of $ 307.52, with interest at 7 per cent. from August 14, 1907, and $ 144.51, with interest at 7 per cent. from August 14, 1907, was assessed against the interest of each one of the heirs of the deceased. No appeal was taken by the heirs, but on the 22d day of November, 1912, the widow filed a motion for a new trial, which was overruled, and she thereupon prosecuted this appeal.

Three questions are presented by the record: First. Was the bank stock assessable? Second. Is the tax barred by the statute of limitations? Third. Is the widow's interest assessable?

1. Appellant contends that the tax was barred by the statute of limitations because more than five years had elapsed after the tax accrued, and therefore it was conclusively presumed to have been paid. The record discloses that the proceeding to collect the inheritance tax was commenced within the five-year period above mentioned; that notice was given the widow and the heirs, as provided by law, within that period; that they each voluntarily made a general appearance in the action within said period, to wit, on August 7, 1912. It therefore follows that this contention is without merit.

2. Appellant further contends that her distributive share of the bank stock was not subject to an inheritance tax, for the reason that, being personal property, its situs was fixed by law at the place of the residence of her deceased husband, which was at the time of his death in the state of Iowa. This reason may not be decisive of the question, and therefore need not be considered. There is another reason, however, why appellant's interest in the bank stock was not subject to the inheritance tax, as we shall presently see.

3. Finally, appellant contends that none of her distributive share of her husband's estate, either real or personal, was subject to an inheritance tax under the laws of this state. Chapter 49, laws 1907, called the "King Inheritance Law," abolishes the estates of dower and curtesy, and in lieu thereof provides (sec. 1): "When any person shall die, leaving a husband or wife surviving, all the real estate of which the deceased was seized of an estate of inheritance at any time during the marriage, or in which the deceased was possessed of an interest either legal or equitable at the time of his or her death, which has not been lawfully conveyed, by the husband and wife while residents of this state, or by the deceased, while the husband or wife was a non-resident of this state, which has not been sold under execution or judicial sale, and which has not been lawfully devised, shall descend subject to his or her debts and the rights of homestead, in the manner following: First. One-fourth part to the husband or wife." By section 3 of the act it is further provided that the personal estate of the deceased shall be distributed in the same proportions to the same persons as prescribed for the descent of real estate. Comp. St. 1911, ch. 23, secs. 1, 176. It thus appears that the appellant, as the widow of her deceased husband, by operation of law became the owner of one-fourth of the real estate and bank stock in question, upon her husband's death. Under the present law the interest of the wife in the personal property of her husband is similar to that of a silent partner. The husband is, in effect, the managing agent and has control of the property. He can sell and dispose of it, or he may exchange it for other property. But at his death her interest therein comes to her in her own right. It does not pass to her by will, or by the intestate laws of the state. The husband cannot deprive her of that right. Gaster v. Estate of Gaster, 92 Neb. 6, 137 N.W. 900.

Many of the courts of last resort in this country have declared that the property of the widow, which comes to her by law, or by what has been designated as the "wife right," is immune from the payment of an inheritance tax. In In re Estate of Sanford, 91 Neb. 752, 137 N.W. 864, this court held: "The dower interest of the widow in the estate of her deceased husband, whether taken under his will or by operation of law, is not subject to an inheritance tax."

It is argued by counsel for the appellee that, the legislature having abolished the estates of dower and curtesy, that rule has no application to the present controversy. It appears, however, upon an examination of the authorities, that the legislature of the state of Iowa in 1873 passed an act abolishing estates of dower and curtesy, and giving to the surviving spouse a fee simple interest in one-third of the estate of the deceased. The provisions of our present inheritance law are, in effect, the same as those of the Iowa statute, with the exception that in this state the surviving spouse, under certain conditions, takes a fee simple interest in one-fourth of the estate of the deceased, both real and personal. Construing the Iowa statute, the supreme court of that state, in Purcell v. Lang, 97 Iowa 610, 66 N.W. 887, said: "A wife is entitled to dower in land alienated by her husband, in the deed of which she did not join, according to the law in force at the time of such alienation, notwithstanding his death takes place after the passage of Iowa Code 1873, section 2440, declaring the estates of dower and curtesy abolished, and giving the surviving spouse a fee-simple interest in one-third of the estate of the deceased, as such act merely abolishes the use of the words 'dower' and 'curtesy' as descriptive of the enlarged estate."

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 interest of the appellant in her deceased husband's estate, both real and personal, comes within the test of immunity.

Under the present statute the wife takes her interest in the estate of her deceased husband by operation of law. She cannot be deprived of that interest by his will. It is something which belongs to her absolutely and independently of any right of inheritance or succession. Strictly speaking, the widow's share should...