In re Waldron's Estate

• Citation: 84 Colo. 1,267 P. 191
• Decision Date: 07 May 1928
• Docket Number: 11781.
• Parties: In re WALDRON'S ESTATE. v. PEOPLE. WALDRON
• Court: Colorado Supreme Court

267 P. 191

84 Colo. 1

In re WALDRON'S ESTATE.

WALDRON v. PEOPLE.

No. 11781.

Supreme Court of Colorado, En Banc.

May 7, 1928

Error to District Court, City and County of Denver; A. F Hollenbeck, Judge.

Proceeding by the People against Margaret I. Waldron, as executrix of the estate of John M. Waldron deceased, for the collection of inheritance tax. From an adverse judgment in the district court on appeal from the county court, executrix brings error.

Affirmed.

R. D. Thompson, of Denver, for plaintiff in error.

William L. Boatright, Atty. Gen., and Andrew H. Wood, Asst. Atty Gen., for the People.

DENISON, C.J.

This is a controversy over the inheritance tax upon the estate of the late John M. Waldron, a former member of the Colorado Bar and resident here, who died in Denver, October 21, 1924. Plaintiff in error, who is his widow and the executrix of his will, claimed that at death he was not a resident of Colorado and so certain of his estate's assets were not subject to the inheritance tax of this state. The county court held against her and, on appeal, the district also, making special findings that he was a resident of Colorado, and that even if not the assets in question were subject to the tax.

The property which the deceased left in Colorado was as follows (A) United States Liberty and federal bonds, $104,624.06. (B) Certificates of deposit in Boston banks, $20,278.05. (C) Certificates of deposit in Denver banks, $103,209.88. (D) Check of the Salt Creek Consolidated Oil Company of Maine, a corporation, payable to the deceased, $1,250. All the above at Waldron's death were in his safe deposit box in the United States National Bank in Denver. (E) Cash taken from the safe deposit box and given to his wife seven days before his death and in anticipation thereof, $30,000. (F) Bank deposits on open account in various banks in Denver $25,999.20. Total $285,361.19.

Against this property the inheritance tax commissioner assessed $15,293.94.

In addition to claiming all this property exempt, the executrix claims that even if the taxes are allowed yet from the total amount of taxable property should be deducted the executrix's fees, which she claims are $6,000, and the sum of $2,800 paid out by her to settle a will contest.

1. The first question, then, for us to answer is whether Waldron died a resident of Colorado. That question is in two parts: (1) Was he an actual resident of Colorado? And (2) if not, is he to be deemed such under our statute, C. L § 7484, par. 5?

The evidence that Mr. Waldron was actually a resident of Massachusetts is strong but not conclusive. Apart from that, however, C. L. § 7484, par. 5, is as follows:

'For any and all purposes of this act and for the just imposition of the inheritance tax, every person shall be deemed to have died a resident and not a nonresident, of the state of Colorado if any (and) when such person shall have dwelt or shall have lodged in this state, during and for the greater part of any period of twelve consecutive months in the twenty-four months next preceding his or her death. * * * The burden of proof in an inheritance tax proceeding shall be upon those claiming exemption by reason of the alleged nonresidence of the deceased. * * *' The evidence is that the deceased was in Denver from October 5 to November 4, 1923; from November 11, 1923, to April 11, 1924; from September 29 to October 21, 1924-188 days. He was formerly for many years a citizen of Colorado, and at his death all the property in question, some $285,000, was in Denver, and during some of the days of his stay, above enumerated, he was in the practice of the law, consulting with clients and receiving retainers here.

The Attorney General takes the 'twelve consecutive months' from October 21, 1923, to October 21, 1924, and from the evidence computes residence of the deceased in Colorado thus:

Oct. 21, 1923--Nov. 4, 1923 ..... 14 days

Nov. 11, 1923--Apr. 11, 1924 ... 152 "

Sept. 29, 1924--Oct. 21, 1924 ... 22 "

---------

188 "

The executrix maintains that the 'period of twelve consecutive months' specified in the statute means 12 calendar months, and that therefore either October, 1923, or October, 1924, must be excluded in the computation, which would reduce the days to less than a half year; but it would not.

Oct. 5--Nov. 4, 1923 ... 30 days

Nov. 11--Dec. 31, 1923 ... 50 "

Dec. 31--Apr. 11, 1924 .. 102 "

Sept. 29--Oct. 1, 1924 .... 2 "

---------

184 "

One hundred and eighty-four days are more than one-half a year. Mr. Waldron therefore had, at the time of his death, 'lodged in this state during and for the greater part of any period of twelve consecutive months in the twenty-four months next preceding his death,' whether we regard these months as the months named in the calendar or not.

The plaintiff in error, however, claims that the meaning of the statute is that the deceased must have lodged in Colorado for the greater part of each of the 'twelve consecutive months' herein mentioned, and her counsel cites In re Green's Estate, 99 Misc. 582, 164 N.Y.S. 1063-1065 (affirmed without opinion by the Appellate Division, 179 A.D. 890, 165 N.Y.S. 1088), and In re Barbour's Estate, 185 A.D. 445, 173 N.Y.S. 276-281, affirmed without opinion, 226 N.Y. 639, 123 N.E. 854. The argument of the opinion in Re Green's Estate is that the statute is so unjust, when construed as the Attorney General contends, that, 'unless the words * * * are so clear and equivocal as to bear no other construction,' one will not be given. We think the words are capable of no other construction. The theory of plaintiff in error requires us to insert the words 'each month of' so as to make the statute read, 'The greater part of each month of any period of twelve consecutive months,' which we have no right to do. We might with equal reason say that the lodging must be of one period. But even if we should adopt the construction asked for, we do not see that injustice, if there be injustice, will be avoided, although it was avoided as to the heirs of Mrs. Green. Why is it less unjust to presume residence in Colorado because I have lodged there one-half of each month of a given year than because I have lodged there for 6 whole months thereof or for irregular periods amounting to 6 months thereof? The only difference seems to be that one is more likely to occur than the other. In re Barbour's Estate, supra, involved all the personal property of decedent without as well as within the state.

It is argued that our Legislature, in adopting the statute in question, adopted the construction of it by the New York courts, but the rule invoked is not a conclusive presumption but a guide in construction. The original case in this state on this point correctly states it is to be 'the general rule,' Stebbins v. Anthony, 5 Colo. 348, 356; it does not require us to reject what seems to us a plain meaning.

Again, our inheritance tax act is a mixture of sections taken from the acts of several different states--at least three, New York, Illinois, and California. The plaintiff in error seeks to have us follow New York decisions with reference to the sections taken from New York, and California in decisions with reference to the sections taken from California; in one instance seeks to have us repudiate the rule entirely, and, further on in his brief, seeks to have us adopt it again; but we think that, whereas our act is not the adoption of any particular act from any particular state, but is made up of sections taken from many different sources, some of which are altered, some adopted in substance, some apparently composed by our own legislators, it cannot be said that we are adopting with this act the various decisions of each particular state whose legislation ours more or less resembles. We must take our act as we find it, and construe it as we think right.

It is argued that the statute creates a mere prima facie presumption that the residence of deceased was Colorado, subject to rebuttal, and that the proof is overwhelming that his real residence was Massachusetts.

We do not accede to that proposition. It seems clear to us that, when the statute says he 'shall be deemed to have died a resident,' it is declaring a conclusive presumption, because (1) if it had intended a mere prima facie one it would have said so; (2) if 'deemed' means 'presumed prima facie,' it would be an idle proposition because it would merely put the burden of proof of nonresidence of the deceased upon the heirs, which is expressly provided later in the same section; and (3) both derivation and weight of authority are with defendant in error on this point. Com. v. Pratt, 132 Mass. 246, 247; Powell v. Spackman, 7 Idaho 692, 698, 65 P. 503, 54 L.R.A. 378; Rogers v. McFarland, 19 Ont. L. 622, 639, citing many cases; Lawrence v. Willcocks, [1892] 1 Q. B. 696, 699; Regina v. Manning, 3 C. & K. 887; Leonard v. Grant (C. C.) 5 F. 11; Thompson v. Cragg, 24 Tex. 582, 599; State v. Worden, 27 R.I. 484, 63 A. 486; Ex parte Smith, 33 Nev. 466, 111 P. 930; Cory v. Spencer, 67 Kan. 648, 653, 73 P. 920, 63 L.R.A. 275; Checotah v. Eufaula, 31 Okl. 85, 94, 119 P. 1014; Blaufus v. People, 69 N.Y. 107, 111, 25 Am.Rep. 148; Nelson v. Jones, 245 Mo. 579, 598, 151 S.W. 80; Cardinel v. Smith, 5 Fed. Cas. No. 2395, page 45; Dilworth v. Schuylkill, 219 Pa. 527, 529, 69 A. 47. There are a few cases which hold that 'deemed' means 'presumed prima facie,' e. g., Rex v. Fraser, 45 N. S. 218, 219, but the conditions there were peculiar. The New York Surrogate Court, in Re Frick's Estate, 116 Misc. 488, 190 N.Y.S. 262-264, and In re Barbour, supra, are cited, but, as shown above, do not control us.

It follows that the district court was right when it adjudged that Mr. Waldron died a...