In re Estate of Maria E. Hagar

• Decision Date: 06 November 1924
• Parties: IN RE ESTATE OF MARIA E. HAGAR
• Court: Vermont Supreme Court

126 A. 507

98 Vt. 235

IN RE ESTATE OF MARIA E. HAGAR

Supreme Court of Vermont

November 6, 1924

October Term, 1924.

CERTIFICATION to the Supreme Court under G. L. 1103, upon written application of Commissioner of Taxes and executrix of will of Maria E. Hagar, of findings and decree of probate court, district of Chittenden, J. H. Macomber, Judge, for construction of a part of Chapter 49, General Laws. Decree affirmed.

The decree of the probate court is affirmed with costs. Let the result be certified to the probate court.

Guy M. Page, for the estate.

Fred B. Thomas, Commissioner of Taxes, for the State.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

SLACK

This case involves the right of the State to collect certain collateral inheritance and transfer taxes. The State prevailed in the probate court wherein the settlement of the estate is pending, and that court certified the case here pursuant to the provisions of G. L. 1103.

The agreed facts are these: On February 5, 1909, Maria E. Hagar then, and until her death, an inhabitant of the city of Burlington, this State, by an instrument recorded in the probate court for the district of Chittenden, agreeably to the provisions of the statute, "adopted as her children," Henry H. Hagar and Mary L. Hagar, each of whom had then attained the age of majority. The adoptees were nephew and niece, respectively, of the adopter. On August 2 1917, Maria E. conveyed to the said Henry H., by deeds of warranty, two pieces of real estate situate in the city of Burlington, reserving to herself the use, rents, and profits thereof during her natural life. She died on, or about, August 1, 1923. By her last will and testament, executed August 3, 1917, and duly probated in the district of Chittenden, she devised and bequeathed to the said Henry H. and Mary L. all of her estate of every kind and nature.

The statute relating to the rights and duties of adopted children in force February 5, 1909, and at the time Maria E. died, provided that "the same rights, duties and obligations and the same right of inheritance shall exist between the parties as though the person adopted had been the legitimate child of the person or persons making the adoption," except in certain instances not here material. G. L. 3762. The statutes relating to collateral inheritance and transfer taxes, in force at the time of the adoption in the instant case, did not require adopted children to pay such taxes. See P. S. 822 as amended by No. 31, § 1, Acts 1908, and P. S. 823. The statutes relating to such taxes in force at the time Maria E. died did require such children, unless adopted during minority, to pay such taxes. G. L. 1090, 1093.

The appellant, who is executrix under the will of the deceased, contends that the State is not entitled to collateral inheritance or transfer taxes on account of the property granted, devised, and bequeathed as above mentioned, because, to quote from the record, "the adoption was a contract which gave to the beneficiary under the will the status as to inheritance so far as this estate is concerned of natural legitimate children and that there is no valid tax classification which distinguishes between a tax on inheritance by them as against natural legitimate children with (out) impairment of the status created by their contract and that the impairment of that status is forbidden by the Constitution. That therefore section 1090 should be construed to apply only to adoption made after its enactment and not to this adoption made prior to the inclusion of children adopted after majority within its terms." In other words, the claim is that the relation between the parties created by the adoption was contractual in nature, and since the statute gave the adoptees the same right of inheritance, as between the parties, as legitimate children they stand on the same footing as such children so far as succession taxes are concerned, and that the act of 1910, No. 55 (G. L. 1090), is unconstitutional because it impairs their contractual rights.

This claim is untenable. Whatever the relation between the adopter and the adoptees may have been, that is, whether contractual or judicial in nature, the adoptees, by reason thereof, acquired no right in the adopter's property during her lifetime, nor at her decease, if she willed otherwise, for she still had authority to devise it to whomsoever she chose. She could do so without violating the legal rights of legitimate children, and, certainly, the adoptees stood in no better position.

The right to take property by devise or descent is not a natural, but a statutory right (In re Hickok's Estate, 78 Vt. 259, 62 A. 724, 6 Ann. Cas. 578; Gilman v. Morrill, 8 Vt. 74; Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283, 42 L.Ed. 1037, 18 S.Ct. 594, S.Ct. 594; Minot v. Winthrop, 162 Mass. 113, 38 N.E. 512, 26 L. R. A. 259; State v. Hamlin et al., 86 Me. 495, 30 A. 76, 25 L. R. A. 632, 41 A. S. R. 569; Kochersperger v. Drake, 167 Ill. 122, 47 N.E. 321, 41 L. R. A. 446; Eyre v. Jacob, 55 Va. 422, 14 Gratt. 422, 73 A. D. 367; Strode v. Commonwealth, 52 Pa. 181; 2 Bl. Comm. pp. 10, 13; 9 R. C. L. pp. 14, 15), and, therefore, subject to legislative change at any time before the death of the owner.

While our Constitution guarantees to the citizens the right of acquiring, possessing, and protecting property (Ch. I, art. 1 ), which includes the right of disposal, the guaranty ceases to operate at the death of the possessor. There is no provision of our Constitution, or that of the United States, which secures the right to any one to control or dispose of his property after his death, nor the right to any one, whether kindred or not, to take it by inheritance. And, so far as we are aware, the State has not parted with its authority to regulate the succession of property in any instance. That its authority in this respect over the property of persons who become parties to adoption proceedings is not taken away, or limited, by the statutory provision conferring upon such persons the right as "between the parties" of inheriting from each other is too obvious to require further notice.

It has always been the policy of our law to allow collaterals to inherit, in default of lineal descendants, and to allow the disposal of estates by will, which take effect only at the death of the owner, when his ownership has ceased, but the policy may be changed if the Legislature so determines; or the Legislature may, if it choses, retain this general policy, and annex to the privilege of taking a decedent's property, by descent or will, such conditions, within certain limits at least, as it deems wise.

This, and no more, is precisely what the Legislature attempted to do by the statute under consideration; and we think it acted well within its authority unless the classification upon which the statute rests is open to constitutional objections.

In considering this question, it should be borne in mind that taxes of this character are now universally conceded not to be taxes upon property, but rather in the nature of a condition annexed to the privilege accorded by the State to members of the body politic of taking property, by devise or descent, that formerly belonged to another (In re Hickok's Estate, supra),--property to which their sole title rests upon legislative sanction. Then too, the tax or condition imposed by this...