Kohny v. Dunbar

• Decision Date: 30 January 1912
• Citation: 21 Idaho 258,121 P. 544
• Parties: EDNA R. KOHNY, Administratrix, Respondent, v. WILLIAM C. DUNBAR, Probate Judge, Appellant
• Court: Idaho Supreme Court

121 P. 544

21 Idaho 258

EDNA R. KOHNY, Administratrix, Respondent, v. WILLIAM C. DUNBAR, Probate Judge, Appellant

Supreme Court of Idaho

January 30, 1912

INHERITANCE TAX - INTERSTATE LAWS - COMMUNITY PROPERTY - INTEREST OF WIFE IN COMMUNITY PROPERTY.

(Syllabus by the court.)

1. Under the statute of this state, secs. 2680 and 3060, Rev Codes, all property acquired after marriage by either husband or wife not defined by secs. 2676 and 2679 as the separate property of the husband or wife is community property.

2. Under the provisions of sec. 2686, the husband has the management and control of the community property with the like absolute power of disposition as he has of his separate property.

3. Under the provisions of sec. 5713, on the death of either husband or wife, one-half of the community property goes to the survivor, subject to the community debts, and the other half is subject to the testamentary disposition of the deceased husband or wife.

4. Under the community property law of this state, the wife has an equal interest and ownership with the husband in community property, and the only particular in which their rights differ is in the fact that the statute constitutes the husband the managing and sales agent and trustee of the community partnership and authorizes him to sell and pass title to such property and exercise absolute control over the same.

5. The one-half interest which the wife receives from the community property upon the death of her husband comes to her in her own right by reason of the death of the community agent and her survival of the dissolution of the community partnership.

6. The wife is not liable, under sec. 1873, Rev. Codes, upon the death of her husband, to pay an inheritance tax on her one-half of the community property, for the reason that the property does not pass to her "by will or by the intestate laws of this state."

7. "The intestate laws of this state" comprise that body of laws which provide and prescribe the devolution of estates of persons who die without disposing of their property by last will or testament. One who dies intestate dies without leaving a will and without disposing of his property and estate by will or testament.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. John F. MacLane, Judge.

Appeal by the administratrix of the estate of Albert B. Kohny from an order of the probate court refusing to settle and allow the final account of the administratrix until such time as she paid an inheritance tax upon the one-half interest in the community property belonging to the wife of the deceased. Judgment of the probate court reversed by the district court. Judgment of the district court affirmed by this court.

Judgment affirmed, with costs in favor of respondent.

D. C McDougall, Attorney General, J. H. Peterson, and O. M. Van Duyn, Assistants, and Chas. P. McCarthy, Prosecuting Attorney, for Appellant.

Inasmuch as the California inheritance tax law was enacted after the time of the ruling of the courts of that state upon women's rights in community property, therefore the legislature intended to subject all community property to said inheritance tax. We adopted the California statute, word for word, in 1907. Therefore, the same reasoning applies. (Estate of Moffitt, 153 Cal. 359, 95 P. 653, 1025, 20 L. R. A., N. S., 207; In re Burdick, 112 Cal. 387, 44 P. 734; Spreckels v. Spreckels, 116 Cal. 339, 58 Am. St. 170, 48 P. 228, 36 L. R. A. 497; Sharp v. Loupe, 120 Cal. 89, 52 P. 134, 586.)

"The interest of the wife is a mere expectancy like the interest which any heir may possess in the property of his ancestor." (Van Maren v. Johnson, 15 Cal. 308; Packard v. Arellanes, 17 Cal. 525.)

The wife has no vested or tangible interest in community property, but the title is vested in the husband, who is "for all practical purposes the sole owner." (Fallbrook Irr. Dist. v. Abila, 106 Cal. 362, 39 P. 794; People v. Lebus (Cal.), 96 P. 1118.)

"The title to community property is in the husband, and during the existence of the community the wife's interest in the community property is a mere expectancy." (Hall v. Johns, 17 Idaho 224, 105 P. 71; Ray v. Ray, 1 Idaho 566; Wilson v. Wilson, 6 Idaho 597, 57 P. 708; Bedal v. Sake, 10 Idaho 270, 77 P. 638, 66 L. R. A. 60; Bank of Commerce v. Baldwin, 14 Idaho 75, 93 P. 504, 17 L. R. A., N. S., 676.)

John F. Nugent, and Cavanah & Blake, for Respondent.

If the wife takes as survivor, she cannot take as heir, and hence her share would not be liable for the tax. (In re Moffitt's Estate, 153 Cal. 359, 95 P. 654, 1025, 20 L. R. A., N. S., 207; McKay on Community Property, sec. 462.)

In Texas and Washington it is settled that the wife does not take her moiety of the community property by inheritance from her husband; her title originates at the same time as his, runs concurrently with his, and on his death it is merely stripped of his power to manage and control. (Wright v. Hays, 10 Tex. 130, 60 Am. Dec. 200; Edwards v. Brown, 68 Tex. 329, 4 S.W. 380, 5 S.W. 87; Kircher v. Murray, 54 F. 626; Cullers v. James, 66 Tex. 494; Arnold v. Hodge, 20 Tex. Civ. App. 211, 49 S.W. 715; Johnson v. Harrison, 48 Tex. 257; Holyoke v. Jackson, 3 Wash. Ter. 235, 3 P. 841; Saddler v. Niesz, 5 Wash. 182, 31 P. 630, 1030; Adams v. Black, 6 Wash. 528, 33 P. 1074; Tustin v. Adams, 87 F. 377.)

The decisions cited from the courts of states having statutes identical, or practically identical, with ours are decisive of the matter at bar, and the California rule should not be recognized here, as the statutes of the two states are entirely dissimilar. (Warburton v. White, 176 U.S. 484, 20 S.Ct. 404, 44 L.Ed. 555; Arnet v. Reade, 220 U.S. 311, 31 S.Ct. 425, 55 L.Ed. 477.)

In the light of sec. 5713, the wife has more than a mere expectancy in the community property. (Ryan v. Fergusson, 3 Wash. 356, 28 P. 910; Lawrence v. Bellingham Bay etc. Co., 4 Wash. 664, 30 P. 1099; In re Hill's Estate, 6 Wash. 285, 33 P. 585; In re Cannon, 18 Wash. 101, 50 P. 1021.)

Estate by curtesy is not subject to inheritance tax. (Starbuck's Estate, 137 A.D. 866, 122 N.Y.S. 585.)

The statute has refrained from any language which would impose a tax upon rights of property which ripen or come to pass as an incident or result of death.

"The words 'intestate laws' refer to the statutes governing the descent and distribution of a decedent's property." (In re Green's Estate, 68 Misc. 1, 124 N.Y.S. 863; Commonwealth's Appeal, 34 Pa. 204.)

AILSHIE, J. Stewart, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

This appeal involves the construction of sec. 1873 of the Rev. Codes, commonly known as the inheritance tax law. The respondent, Edna R. Kohny, is the widow of Albert B. Kohny, deceased, and is the administratrix of his estate. On the 9th of February, 1909, the administratrix duly made and returned to the probate court of Ada county an appraisement of the estate of her deceased husband, which showed the estate to be of the value of $ 88,962.70, of which sum $ 25,485 was the separate estate of Albert B. Kohny and $ 63,477.70 represented the community estate and property of Albert B. Kohny and Edna R. Kohny, his wife. The administratrix offered to pay the inheritance tax upon one-half of the community property less the amount of her exemption under sec. 1877, but the probate judge refused to settle, approve and allow her final account until she first paid the inheritance tax upon the whole of the community property, less her exemption of $ 10,000. The administratrix appealed to the district court from the ruling and order of the probate judge, and her contention was there sustained and the probate judge thereupon appealed to this court.

Sec. 1873 of the Rev. Codes provides, among other things, as follows: "All property which shall pass, by will or by the intestate laws of this state, from any person who may die, seised or possessed of the same while a resident of this state . . . . shall be and is subject to a tax hereinafter provided for, to be paid to the treasurer of the proper county, . . . . " It necessarily follows from the plain wording of the statute that this tax is laid upon the transfer of any and all property "which shall pass by will or by the intestate laws of this state." The vital question then to be determined is whether the one-half interest which the wife has in the community property passes to her by will or by the intestate laws of the state. This proposition may be further reduced for the reason that it is not contended that she receives it by will, so the only remaining question is: Does she receive a one-half interest in the community property through or under the intestate laws of this state?

It ought not to be difficult to determine what is meant by the words "intestate laws of this state." One who dies intestate dies without leaving a will and without disposing of his property and estate by last will and testament. (In re Green's Estate, 68 Misc. 1, 124 N.Y.S. 863; 4 Words and Phrases, 3732; 23 Cyc. 41, notes 40 and 41.) The intestate laws of this state comprise that body of the statutes which provide and prescribe the devolution of estates of persons who die without disposing of their estates by last will or testament. In other words, intestate laws deal with intestate estates, and provide for the passing of title to such person or persons as the lawmakers in their judgment and wisdom have thought best entitled to such estates. Now, then, it being conceded that Albert B. Kohny did not dispose of his property and estate by will and that he therefore died intestate, the question to be determined is: Did his widow, Edna R. Kohny, come into the possession and enjoyment of one-half of the community...