In re Peterson's Will

• Decision Date: 17 January 1918
• Docket Number: No. 31422.,31422.
• Citation: 166 N.W. 168
• Parties: IN RE PETERSON'S WILL.
• Court: Iowa Supreme Court

166 N.W. 168

IN RE PETERSON'S WILL.

No. 31422.

Supreme Court of Iowa.

Jan. 17, 1918.

Appeal from District Court, Scott County; Wm. Theophilus, Judge.

The trustee petitioned to have the will construed, and asked to have a bequest declared exempt from tax under section 1481a1 of the Code Supplement 1913. The trial court adjudged that the trustee pay to the treasurer of state the sum of $2,000, being a tax of 5 per cent. upon one-fifth of the total trust fund of $200,000, the amount of the tax to be deducted from the part of the trust fund set aside to the American Institute for Scientific Research, unless the same should be paid by said society. The trustee and the said society appeal. Reversed.Miles M. Dawson, of New York City, and Bollinger & Block, of Davenport, for appellants.

H. M. Havner, Atty. Gen., C. A. Robbins, Asst. Atty. Gen., and Henry H. Jebens, Co. Atty., of Davenport, for appellee.

PRESTON, C. J.

At the trial in the district court, the following stipulation was made:

“It is stipulated by the parties to this matter: That under and by virtue of the terms and provisions of paragraph ten of the last will and testament of Max D. Peterson, deceased, as duly probated and amended by the fourth and fifth paragraphs of the codicil of said testator which is also duly probated, and as amended and construed by the decree of this court entered on the 14th day of August, 1915, the sum of $200,000 in money has been set aside as a special fund, and is now held and being invested by the German Trust Company, as trustee, for the certain charitable and public uses, and for the benefit of the beneficiaries as given in the petition to this court which is now about to be heard. That included in said charitable and public uses and said beneficiaries the following provision is made: ‘One-fifth part of the income of said special fund to the American Institute for Scientific Research, of New York City, to be used for the purposes of the American Society for Physical Research, of New York City, a branch of the American Institute for Scientific Research, of New York City.’ That said American Institute for Scientific Research, of New York City, is a corporation duly organized and existing under and by virtue of the laws of the state of New York, and that the American Society for Psychical Research is, in fact, a branch of said corporation, and that neither said institute nor said branch is incorporated under the laws of the state of Iowa. That said society is an educational society organized and conducted for purposes of scientific research.”

The inheritance tax law of this state imposes a tax upon the transfer of property by will or otherwise, when made to take effect at the death of the owner, “to any person, or for any use in trust or otherwise, other than to or for the use of persons or uses exempt by this act.” Code Supplement 1913, § 1481a.

Section 1481a1, has reference to exceptions, and provides that the tax imposed by this act shall not be collected (1) when the estate does not exceed $1,000; (2) when the property passes to the husband or wife; (3) when the property passes to the father, etc., and (4) “When the property passes to educational and religious societies or institutions, public libraries and public art galleries within this state and open to the free use of the public.”

Prior to the passage of the present law by the Thirty-Fourth General Assembly, section 1467 of the Code had been amended by Acts of the Thirtieth, Thirty-First, and Thirty-Third General Assemblies (chapter 92), so as to include exemption as follows:

“Other than to or for the use of the father, mother, husband, wife, lineal descendant, adopted child, the lineal descendant of an adopted child of a decedent, stepchild, or the lineal descendant of a stepchild of a decedent, or to or for charitable, educational or religious societies or institutions, including hospitals, public libraries and public art galleries kept open to the free use of the public not less than three days of each week; or any bequest, not to exceed $500.00, to and in favor of any person, having for its purpose the performance of any religious service to be performed for and in behalf of decedent or any person named in his or her last will and testament, or any cemetery associations; within this state, shall be subject to a tax,” etc.

By inserting amendments to the original law at different times, there was some confusion in regard to the meaning of the exemption. It is evident that the Thirty-Fourth General Assembly undertook to make clear the meaning. At the same time some of the exemptions were omitted and other changes were made. The exemption as found in the original law (Acts 26th Gen. Assem. c. 28, § 1), was of property passing to or for the use of the father, mother, husband, wife, lineal descendant, adopted child, the lineal descendant of an adopted child of a decedent, or to or for charitable, educational or religious societies or institutions within this state.

Section 1467 had been amended by the Thirtieth and Thirty-First General Assemblies to read in the Supplement to the Code of 1907:

“Other than to or for the use of the father, mother, husband, wife, lineal descendant, adopted child, the lineal descendant of an adopted child of a decedent, stepchild, or the lineal descendant of a stepchild of a decedent, or to or for charitable, educational, or religious societies or institutions, including hospitals, public libraries and public art galleries kept open to the free use of the public not less than three days of each week; within this state,” etc.

The Thirty-Third General Assembly, by chapter 92, amended the law by striking out the semicolon following the word “week,” and by inserting a further provision. Such, in a general way, is the history of the legislation on this subject, and, as said, the Thirty-Fourth General Assembly, by enacting the present law as before quoted, attempted and intended to clear up the confusion and intended to make changes in the law.

[1] One of the points made by appellee is that to construe the present section would be to change the law from what it was before. But the Legislature could do this if it saw fit. If the language used, when properly construed, is unambiguous, it would show that the Legislature intended to make alterations. While it may be true that a change in the language of a revised statute does not necessarily indicate an intention to alter the law, still, where a change is made which is clear, and does in fact modify the statute in point of substance, the presumption, if any, that no change was intended, must yield to the fact. State v. Milk Co., 124 Minn. 34, 40, 144 N. W. 417, 51 L. R. A. (N. S.) 244. It may be remarked that in the instant case there was an amendment, rather than a revision, so that it appears that a change was intended. As said, it is conceded by appellee that some changes were made by omitting some of the prior provisions and making other changes.

The controversy arises over the phrase “within this state,” and the punctuation in paragraph 4 before quoted by the use of the comma after the word “institutions.” The claim made by appellant for exemption in this case is based upon the contention that the phrase “within this state” has no application to such societies or institutions as are named in the fourth paragraph of this section, preceding the comma. As we take the argument of counsel for...