McDaniel v. Byrkett

• Decision Date: 11 October 1915
• Docket Number: 161
• Parties: MCDANIEL, STATE TREASURER v. BYRKETT
• Court: Arkansas Supreme Court

179 S.W. 491

120 Ark. 295

MCDANIEL, STATE TREASURER v. BYRKETT

No. 161

Supreme Court of Arkansas

October 11, 1915

Appeal from Lawrence Circuit Court, Eastern District; Dene H Coleman, Judge; affirmed.

Judgment affirmed.

Wm. L Moose, Attorney General; Jno. P. Streepey, Assistant Attorney General, for appellant; Harry L. Ponder, of Counsel.

The dower interest is liable for the payment of an inheritance tax under our statutes. 59 L. R. A. 807; 33 L. R. A. (N. S.) 230.

While the authorities are divided, the better reasoning appears to be with appellant's contention.

W. P Smith, G. M. Gibson and Lester L. Gibson, for appellee.

This is not a tax on property, but a tax on the right of succession thereto. 100 Ark. 175.

The widow's dower obtains by way of a lien created by and at the time of the marriage and is paramount to the rights of creditors and purchasers. 5 Ark. 608; 8 Ark. 9; 19 Ark. 440; 31 Ark. 576.

One who takes by the intestate laws of the State takes by virtue of the statutes of descent and distribution, and as and heir. The widow of a deceased person does not take the dower of homestead estate as his heir or by virtue of the intestate laws. Both these estates are inimical to the claim of the heir. They are carved out of the estate in derogation of the rights of the heir, and are not liable for the payment of the inheritance tax. 108 P. 200, 29 L. R. A. (N. S.) 428; 118 La. 212, 42 So. 778; 42 Misc. 648, 87 N.Y.S. 731; 122 N.Y.S. 608; 34 Pa. 204; 11 Pa. Cty. Ct. 1; 39 Misc. 220, 79 N.Y.S. 382; 137 Am. Dec. 866, 122 N.Y.S. 584; 124 N.Y.S. 863; 137 S.W. 924, 34 L. R. A. (N. S.) 1161; 21 Idaho 258; 121 P. 544, Am. Cas. 1913 D., p. 492.

OPINION

SMITH, J.

This was proceeding begun in the probate court of Lawrence County to collect the inheritance tax alleged to be due upon the dower interest of a widow in the estate of her deceased husband. A demurrer was sustained to a petition praying that this dower be appraised and taxed, both in the probate court and in the circuit court, and this appeal has been duly prosecuted from the order of the court below dismissing the petition.

The question presented for our decision is whether dower is taxable under the Inheritance Tax Act approved March 31, 1909, the same being Act No. 303 of the Acts of 1909.

Authority for the collection of this tax is said to be found in section 1 of the above mentioned act, which reads as follows:

"All property within the jurisdiction of this State, and any interest therein, whether belonging to inhabitants of this State of not, or whether tangible or intangible, which shall pass by will or by the intestate laws of this State, or by deed, grant, sale or gift made or intended to take effect in possession after the death of the grantor to any person or corporation in trust of otherwise, shall be liable to tax for the use of the State at the rate hereinafter specified."

It is thoroughly well settled by the decisions of this court, and all other courts which have construed similar statutes, that this legislation is not a tax on the property of the estate of the deceased person, but is a tax laid upon the privilege or right of succession to that property. State v. Handlin, 100 Ark. 175, 139 S.W. 1112, and cases cited. And the courts are likewise agreed that as this is a special tax the laws imposing it are to be construed strictly against the government and favorably to the taxpayer. Crenshaw v. Moore, 124 Tenn. 528, 137 S.W. 924; English v. Crenshaw, 127 American State Reports, 1025.

The Supreme Court of Illinois in the case of Billings v. People, 189 Ill. 472, 59 L. R. A. 807, 59 N.E. 798, held that the wife's dower interest is taxable under the Inheritance Tax law of that State, and this decision has been followed in subsequent decisions in that State. But the opinion in the Billings case, supra, set out the statute of that State upon the subject of dower, from which it appears that the estate of curtesy has been abolished in that State, and that dower has been given alike to the husband and the wife, each being given a certain fixed interest in the lands of the other upon the death of either spouse. This estate is called dower, but it is not the dower of the common law, as the term "dower"' at common law relates exclusively to the interest the widow had in the real estate of inheritance, for it was out of that she was entitled to be endowed of the specific thing. Hill v. Mitchell, 5 Ark. 608; Encyclopedic Digest Ark. Reports, Vol 3, p. 620. In its opinion in the Billings case, supra, the Supreme Court of Illinois said:

"It is contended, however, that whatever the power of the Legislature may be to control dower, or to impose burdens upon it, the act imposing a tax upon inheritance, when strictly construed, as it should be, does not include dower, because, it is said, dower does not 'pass by the intestate laws of this State,' and the act does not, by any necessary terms, include dower. There are no laws of this State which are specifically designated as 'intestate laws,' and we are called upon to determine what laws or system of laws were referred to under that appellation by the act in question. The same term is employed in similar statutes in other states, and we have no doubt the laws referred to are those laws of the State which govern the devolution of estates of persons dying intestate, and include all applicable rules of the common law in force in this State. The statutes from which we have above quoted are intestate laws, and they govern, regulate, and control the interest which the widow, Augusta S. Billings, took in her husband's property at his death. As a general rule, the property of persons dying passes in two ways--that is, by will, or by descent in the modes provided by law; and when it does not pass by will it generally passes by law--that is, by the law governing the disposition of property of persons dying intestate."

It must be conceded that this language is against the views which we herein express, but it will be observed that the dower statute therein referred to is treated as an intestate law, and this is not the view taken generally by the courts in construing dower statutes which are declaratory of the common law or amendatory of it.

The Supreme Court of California, in the case of re Estate of Moffitt, 20 L.R.A. (N. S.) 207, 153 Cal. 359, 95 P. 653, held that the wife upon the death of the husband takes his half of the community property as heir within the meaning of a statute taxing all property which shall pass by the intestate laws from one who shall die seized or possessed of the same. This case is sharply criticized in the note to the case of English v. Crenshaw, 120 Tenn. 531, 110 S.W. 210, 127 Am. St. Rep. 1025, and also by Ross in his work on Inheritance Taxation, at page 84.

In the later case of Kohny v. Dunbar, 29 Am. & Eng. Ann. Cases 492, 21 Idaho 258, 121 P. 544, the Supreme Court of Idaho expressly refused to follow the decision of the California court. The Supreme Court of Louisiana in the earlier case of re Marsal Succession, 118 La. 212, 42 So. 778, having already taken a contrary view.

Except in the states of Illinois and California the courts which have construed the Inheritance Tax laws of the respective states have held that the dower interest of the widow does not pass under the intestate laws. The language of the various statutes is almost identical with the statute of this state insofar as they relate to the question under consideration.

In the later case of re Estate of Kennedy, 157 Cal. 517, 108 P. 280, 29 L. R. A. (N. S.) 428, the Supreme Court of California held (to quote the syllabus of that case) that "The statutory homestead and allowance set apart by the court to the family of a decedent, pending administration of his estate, are not within the provisions of a statute providing for a succession tax on property which shall pass by will or by the intestate laws of the State, and it is immaterial that had the property not been so set apart it would have passed to the widow under the will."

A leading and well considered case on this subject is that of Crenshaw v. Moore, supra, in which the Supreme Court of Tennessee construed a statute of that State identical with our own in the employment of...