Miller's Ex'r v. Commonwealth

• Citation: 68 Va. 110
• Parties: MILLER'S ex'or v. THE COMMONWEALTH. BARRETT'S adm'rs v. THE COMMONWEALTH.
• Decision Date: 03 February 1876
• Court: Supreme Court of Virginia

68 Va. 110

MILLER'S ex'or v. THE COMMONWEALTH.

BARRETT'S adm'rs v. THE COMMONWEALTH.

Supreme Court of Appeals of Virginia.

February 3, 1876

1. Corporations are included under the term " persons" in a statute, unless they are exempted by its terms, or by the nature of the subject to which the statute relates.

2. Corporations are included in the act of 1867, ch. 64, § 3 Sess. Acts 1866-67, imposing a tax on collateral inheritances.

3. Though the statute exempts from taxation the property of orphan asylums and other charitable institutions, this exemption does not include a tax on a devise or bequest of property to such institutions.

Samuel Miller, of the county of Campbell, died in March 1869. He left a very large estate, and by his will, among other bequests, he gave to the Lynchburg Female Orphan Asylum, a large amount of public bonds and a tract of land; and the residue of his estate, not before disposed of, he gave to the county of Albemarle, for the purpose of establishing a school for the education of poor orphan white children.

William Barrett, of the city of Richmond, died in January 1871; and he also left a large estate. By his will, after a great many legacies to individuals, he gave the residuum of his estate to be equally shared, by the Richmond Male Orphan Asylum, The Female Humane Association of Richmond, and The St. Paul's Church Home. All of these were incorporated institutions.

The question whether these bequests were subject to the tax on collateral inheritances having been made, it was agreed by the parties that it should be submitted to the decision of the courts; and accordingly motions were made in the Circuit court of the city of Richmond, by the Attorney General against the executor of Miller and the administrators with the will annexed of Barrett, for the amount of the tax on these legacies. The motions came on to be heard on the 3d and 7th of April 1875, when the court rendered judgment in favor of the Commonwealth in both cases. And thereupon the defendants applied for writs of supersedeas; which were awarded.

The cases were argued by Stiles, Gen'l Early, Craighill Meredith, Wm. J. Robertson, and Grattan, for the appellants and the Attorney General, for the Commonwealth.

CHRISTIAN J.

These two cases were heard together. They involve precisely the same, and a single question, to wit: whether certain legacies which were bequeathed by the testators, Wm. Barrett and Samuel Miller, are subject to the tax imposed by law upon what is known as collateral inheritances.

In the first named case the legatees are three orphan asylums located in the city of Richmond. In the other, the legacies bequeathed by the will of Samuel Miller are, one to the Lynchburg Female Orphan Asylum, and the other to the Board of the Literary Fund, " to establish a school in the county of Albemarle for the education of as many poor orphan children and other white children, residents of the county, as the profits and income of the fund so devised will admit of or compass."

It is conceded that in both cases the legacies are bequeathed to corporations, and in both cases these corporations are charitable institutions.

The proceeding in the Circuit court was, by motion of the Attorney General, without any formal pleadings; and that court gave judgment for the commonwealth for the amount of the tax imposed by law. To which judgment a writ of error was awarded by this court.

These judgments are assailed here upon two grounds: 1st. That the legatees being corporations are not within the terms of the section of the act imposing a tax upon collateral inheritances; and 2d, if within the terms of the act, these legatees are exempted under that provision of the statute which exempts from taxation " all personal property belonging to orphan asylums or other charitable institutions."

Upon the first proposition that corporations are not, but only natural persons are, included within the terms of the act imposing a tax upon collateral in heritances, it becomes necessary to trace somewhat in detail the legislation on this subject.

The first act on the subject was passed on the 6th February 1844, and provided as follows: " All estate real, personal and mixed, of every kind whatsoever, passing from every person who may die seized or possessed of such estate, being within this commonwealth either by will or under the intestate laws thereof, to any person or persons or to bodies politic and corporate in trust or otherwise, other than to or for the use of a father, mother, husband, wife, brother, sister, children or lineal descendants born in lawful wedlock, shall be and they are hereby made subject to a tax or duty imposed by law, on every hundred dollars of the clear value thereof, and at and after the same rate for any less amount, to be paid to the use of the commonwealth." Sess. Acts 1843-' 44, p. 9. Sec. 1.

Until the Code of 1849 this phraseology was used: " to any person or persons or to bodies politic or corporate, in trust or otherwise, other than to or for the use of a father & c. & c." In that Code the words " bodies politic or corporate" were omitted, and the law taxing collateral inheritances was enacted in the following form: ch. 39, § 6, Code 1849: " When any estate within this commonwealth, of any decedent shall pass under his will or the laws regulating descents and distributions, to any other person or to any other use, than to or for the use of the father, mother, husband, wife, brother, sister or lineal descendant of such decedent, the estate so passing, if of greater value than two hundred and fifty dollars, shall be subject to a tax of a certain per cent. " The act continued in this form until the session of 1855-'6, when this tax upon collateral inheritances was omitted from the tax law; which omission was declared by this court in Fox's adm'r v. Commonwealth, 16 Gratt. 1, to operate as a repeal of the statute imposing such tax.

The law creating this tax was again enacted in 1863. The act of March 28th, 1863, § 15, provides as follows:

" § 15. On the estate of a decedent, which passes under his will, or by descent to any other person, or for any other use than to or for the use of the father, mother, husband, wife, brother, sister, nephew, niece, or lineal descendant of such decedent, there shall be a tax of three per centum of such estate."

This tax was again omitted from the general tax law until 1867, when it was provided by the 3d section of ch. 64, Sess. Acts 1866-'7, as follows:

" § 3. Upon any estate of a decedent which shall pass by his

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