In re Rogers' Estate

• Decision Date: 09 April 1923
• Docket Number: No. 23252.,23252.
• Citation: 250 S.W. 576
• Parties: In re ROGERS' ESTATE. STATE v. ROGERS et al.
• Court: Missouri Supreme Court

250 S.W. 576

In re ROGERS' ESTATE.

STATE v. ROGERS et al.

No. 23252.

Supreme Court of Missouri. Division No. 2.

April 9, 1923.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

In the matter of the estate of Alfred E. Rogers. Proceedings by the State against Harrison C. Rogers and others to determine inheritance tax and re Tort on the value of the estate of Alfred H. Rogers, deceased. From a judgment setting aside the report, the State appeals. Affirmed.

Jesse W. Barrett, Atty. Gen., and Stratton Shartel, Sp. Asst. Atty. Gen., for the State.

McReynolds & McReynolds and John H. Flanigan, all of Carthage, for respondents.

WHITE, J.

The appeal by file state of Missouri is from the judgment of the circuit court of Jasper county, holding that the interest of the widow, Katharine C. Rogers, in the estate of her husband, Alfred E. Rogers, deceased, was not subject to the inheritance tax.

Alfred H. Rogers died testate. His estate comprised personal and real property, and was appraised at $683,275.10. He left a widow and two children. The widow renounced the will and elected to take a child's part. This renouncement was filed in the probate court of Jasper county July 30, 1920. R. N. Alexander, appointed by the probate court as appraiser to determine the market value of the property, as provided by the inheritance tax law, reported for the inheritance tax the one-third interest of the widow as well as the interests of the children. The widow, Katharine C. Rogers, then filed her exceptions to the report. The probate court sustained the exceptions, and the state appealed to the circuit court, where, upon a hearing of the case in the circuit court June 30, 1921, the court rendered judgment finding:

"That under the statutes of the state of Missouri and the law in such cases made and provided that the interest of Katharine C. Rogers is not subject to the inheritance tax of the state of Missouri. Now, therefore, it is ordered, adjudged and decreed that the report of R. N. Alexander, or so much thereof as assesses or attempts to assess the tax of $7,790.33 against the interest of Katharine C. Rogers in the estate of Alfred H. Rogers be set aside and for naught held, and that the assessment of said taxes is by the court declared to be without authority and void and of no effect."

The sole question to be determined is whether the interest of the widow in the estate of her deceased husband was subject to the inheritance tax law.

I. Section 319 provides that where a husband and wife shall die leaving a child or children or other descendants, the widow or widower "shall be entitled absolutely to a share in the personal estate belonging to the husband or wife at the time of his or her death, equal to the share of a child."

Section 324, R. S. 1919, provides that where the husband shall die leaving a child or children, the widow "may, in lieu of dower of the one-third part of all lands whereof the husband died or shall die seized, * * * elect to `be endowed absolutely in a share of such lands equal to the share of a child."

The provision in section 324 is subject to the payment of the husband's debts, while that of section 319 is not.

The statute under which the state seeks to tax the property, section 558, R. S. 1919, imposed a tax upon the transfer of any property, real, personal or mixed, etc., "when the transfer is by will or by the intestate laws of this state from any person dying possessed of the property while a resident of the state."

That is the part of the statute applicable to this case.

It is true, as claimed by the state, the right to take property by devise or descent is not a natural right but a creature of law. The state under its sovereign power has the authority to restrict or prohibit entirely the transfer of property by devise or by descent, and strictly speaking that authority is not the exercise of the taxing power. In State ex rel. McClintock v. Guinotte, 275 Mo. loc. cit. 311, 312, 313, and 314, 204 S. W. 806, the subject is treated exhaustively.

Perhaps because the power of the state in such case is so sweeping, all laws providing for inheritance tax, or, more accurately, levying a duty or bonus upon the privilege of transferring property by will or inheritanbe, are construed strictly. 37 Cyc. p. 1556; 36 Cyc. p. 1189; In re Austin's Estate, 109 Misc. Rep. 584, 180 N. Y. Supp. loc. cit. 505; Hill v. Treasurer, 229 Mass. 474, 118 N. E. 891, L. R. A. 1918D, 337; In re Guppies' Estate, 272 Mo. loc. cit. 470, 199 S. W. 556. In the New York case the court used this language:

"The law under consideration imposes a special tax, such laws are always construed strictly against the government, and all facts as to the construction of the provisions thereof should be resolved in favor of the person chargeable with the payment of the tax."

In the Massachusetts case (229 Mass. 475, 118 N. E. loc. cit. 891, L. R. 1918D, 337), the court used this language:

"If the right to the tax is not conferred by the plain words of the statutes, It is not to be extended by implication."

Cyc. 37, 1. c. 1556, generalizes the rule thus:

"A doubt as to the taxability of a particular fund should be resolved in favor of the citizen."

Our own court, in the Cuppies Case; 272 Mo. loc. cit. 470, 199 S. W. 557; used this language:

"Such taxation must be imposed in clear and unambiguous terms, and exceptions will be liberally construed in connection with the whole body of the law upon the subject of which it treats."

II. The widow in this case, of course, does not take by will, and the question is whether the interest which she acquires by her election comes to her' through the "intestate laws of this state." According to the natural and ordinary meaning of the words, "intestate laws" are the laws which govern the devolution of property in the absence of a will, but which might be disposed of by a will. Property which would not be affected by a will would not be affected by the intestate laws. For instance, the right which a widow has in the property of her deceased husband and of which a will cannot divest her does not descend to her by the intestate laws. The very meaning of the word "intestate" is the absence of a will. If one dies intestate, the property which otherwise he might have disposed of by will descends by the intestate laws, but the widow has certain rights in her husband's property which come to her whether the husband die intestate or testate. Property which one may dispose of by will is subject to an alternative: It may be disposed of by will; or, the owner may die intestate as to that property. It is one or the other. If a will does not dispose of It the law makes provision for it; the law which makes provision in such case is, necessarily, the "intestate law." The intestate law supplies the place of a will; or, a will supplants the provisions of the intestate laws.

The weight of authority so defines "Intestate laws" and holds that the interest of the widow in her husband's estate; of which the will cannot make disposition; is not subject to the inheritance tax laws. McDaniel v. Byrkett, 120 Ark. 295, 179 S. W. 491, where many authorities are reviewed; In re Inheritance Tax of Strahan's Estate, 93 Neb. 828, 142 W. W. 678, loc. cit. 680; In re Bullen's Estate, 47 Utah, 96, 151 Pac. 533, L. R. A. 1916C, 670; In re Green's Estate, 68 Misc. Rep. 1, 124 N. Y. Supp. 863; In re Weller's Estate (Sur.) 122 N. Y. Supp. 608; In re Estate of Sanford, 91 Neb. 752, 137 N. W. 864, 45 L. R. A. (N. S.) 236; Crenshaw v. Moore, 124 Tenn. 528, 137 S. W. 924, 34 L. R. A. (N. S.) 1161, Ann. Cas. 1913A, 165; Palmer V. Treasurer and Receiver General, 222 Mass. 263, 110 N. E. 283, L. R. A. 1916C, 677; Kohny v. Dunbar, 21 Idaho, 258, 121 Pac. 544, 39 L. R. A. (N. S.) 1107, Ann. Cas. 1913D, 492. As said in the case of Green's Estate, 68 Misc. Rep. 1, 124 N. Y. Supp. 863, the expression "intestate laws" refers to the statutes governing descents and distribution. In this state the laws Ere comprised in article 14, c. I, R. S. 1919. In the Sanford Case, 91 Neb. loc. cit. 753, 137 N. W. 865, 45 L. R. A. (N. S.) 236, the court said:

"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 an inheritance tax."

In Illinois, in California, and perhaps in other states, a different rule obtains, and it is held that intestate laws include the laws by which the widow has an interest in her deceased husband's estate and her interest is subject to the...