Miller v. Commonwealth

• Decision Date: 04 January 1886
• Citation: 111 Pa. 321,2 A. 492
• Parties: Miller et al. Executors of Richey v. The Commonwealth of Pennsylvania
• Court: Pennsylvania Supreme Court

2 A. 492

111 Pa. 321

Miller et al. Executors of Richey v. The Commonwealth of Pennsylvania

No.

Supreme Court of Pennsylvania

January 4, 1886

Argued November 10, 1885

Error to Common Pleas, No. 1, of Allegheny county: Of October and November Term, 1885, No. 225.

Debt by the Commonwealth against P. Harvey Miller and George D McGrew, executors of the last will of Daniel Richey deceased, to recover collateral inheritance tax alleged to be due on account of the provisions of the said will.

In the court below the following case stated was filed:

It is agreed by and between the Commonwealth of Pennsylvania, by Philip Hoerr, Register of Wills, etc., of Allegheny County Pa., plaintiff, and George D. McGrew and P. H. Miller executors of David Richey, deceased, late of said county, defendant, that an amicable action of debt be entered in said court by plaintiff against defendants, and the following case is stated for the opinion of the court:

David Richey, a citizen of Allegheny County, Pennsylvania, died July , 1879, having first made his last will and testament, dated April 8th, 1879, and duly registered in said county, which, in words and figures, is as follows:

"I, David Richey, of the City of Allegheny, in the County of Allegheny and State of Pennsylvania, do make and publish the following as and for my last will and testament, hereby entirely revoking all other wills by me at any time heretofore made:

"I. To my sister, Rebecca Culbertson, I devise for and during her natural life, the house in which she now resides, with the lot therewith connected, the same being situated in the Third ward, of the City of Allegheny, in the County of Allegheny and State of Pennsylvania, the said house being numbered two hundred and ninety-three (293) Ohio street, in said City of Allegheny.

"I also bequeath to her for her natural life all the household furniture, goods and personal property in or used in said house.

"From and after her death I devise and bequeath said real and personal estate to my executors hereinafter named, to be disposed of as hereinafter stated.

"II. To Kate Smurr, wife of Reason Smurr, of Fayette County, in the State of Pennsylvania, I do devise for and during her natural life, the farm on which she now resides, the same being situate in township, in said County of Fayette, contains about one hundred acres, and is the same I purchased of Edward Eaglen. From and after her death I do devise said farm to such of her children as shall be then living. Life estate of said Kate to be for her sole and separate use.

"III. I do give, devise and bequeath all the rest and residue of my property, real, personal and mixed, to my executors hereinafter named, in trust, nevertheless, that they shall dispose of and sell all the same, and, after paying all my legal debts and funeral expenses therefrom, shall divide the residue thereof as follows:

"IV. To my sister, Rebecca Culbertson, the sum of twenty thousand dollars ($ 20,000). This sum shall have priority over all others, and shall bear interest at the rate of six per centum per annum from my death until it is paid.

"V. To P. H. Miller of Allegheny City, aforesaid, the sum of twenty-five thousand dollars ($ 25,000) in trust, nevertheless, for the following uses and purposes: That the said P. H. Miller shall invest and re-invest said sum in such manner and in such securities as to him may seem proper, with power to change the investments; that he will collect and receive the income, interest and profits therefrom, and, less the expenses of his trust, shall pay the same quarterly to my niece, Elizabeth Owens, wife of Samuel T. Owens, for her sole use, for and during her natural life, but neither the principal or income or interest from this money shall in any manner, shape or form be liable for any debts she or her husband may create, nor shall she have the power in any way to anticipate any portion of her income, or in any way assign any portion of the same.

"From and after the death of the said Elizabeth Owens, the said P. H. Miller shall divide the money or securities in his hands to and among her children who shall then be living. . . .

"XVIII. All the surplus, if any, remaining after the payment of all these legacies and the expenses of selling property, distributing, etc., I do direct shall be equally divided among the following: My sister, Rebecca Culbertson, my nephews S. H. Richey and D. S. Richey, and the said Kate Smurr, P. H. Miller, in trust, as aforesaid, for Elizabeth Owens, Vasty J. Hammaker, Jane Dorland, David Dorland, John Dorland, Isaac Dorland, Harry Dorland, Norris Haines, Maria Shelling, Elizabeth Young, Newton B. Richey, Thomas Richey, Catharine Tryan, Susan Young, Louisa Richey, Elizabeth Richey, Mary Richey and Cordelia Smith, Hunter Richey and the said three children of John Richey.

"To my said executors and trustees I do give full and ample power at their discretion to sell, barter and dispose of at public or private sale, on such terms and in such manner as they may deem best, all my property, real and personal, herein-before devised and bequeathed to them, and to make all proper bills of sale and conveyances thereof. To any one or more of my legatees they may give or convey, in satisfaction of his or her legacy, such portion of my real or personal estate as in the discretion of my said trustees and the said legatees shall be a fair equivalent therefor.

"I do not desire any of my property to be sacrificed by too speedy sales, and I therefore hereby give to my said trustees and executors three years time from my death to make sales of my property and divide the proceeds thereof among the legatees if in their discretion such time be necessary. Until the trustees do make such division, the said legacies, except Rebecca Culbertson, shall not be payable nor shall they bear interest.

"I give the same power to the surviving trustee and executor which I do hereby give to both, and I hereby nominate and appoint George D. McGrew and P. H. Miller, both of Allegheny City, executors and trustees hereof.

"In witness whereof, I, the said David Richey, at the end of this my will hereinbefore written on six preceding pages, do hereunto set my hand and seal this eighth day of April, a. d. 1879. ("Signed), David Richey, [l.s.]"

The testator died unmarried and without issue, and all his estate descended to collaterals. The Register of Wills of Allegheny County appointed an appraiser under the provisions of the law relating to collateral inheritance taxes, to make appraisement of the estate of the testator subject to such tax.

Among the property of which the testator died siezed, and which formed a portion of the residuary estate devised to his executors, were certain lands in Virginia and Kentucky, of which the said appraiser made appraisement on April 12th, 1880, and made return as follows, viz:

"That he valued and appraised all the interest of decedent, 7/16, in all that certain tract of land known as the California pro-perty, Rockbreeze County, Virginia, containing 7,000 acres, at the sum of $ 17,500

"Collateral tax thereon, 875

"That he valued and appraised all the interest of decedent, being 1/3 in the Peters Mountain property in county, Virginia, containing 5,000 acres, at the sum of 8,000

"Collateral tax thereon, 400

"That he valued and appraised all that certain farm tract, contain-ing from three to five hundred acres, situate in Frederick County, Virginia, at the sum of 15,000

"Collateral inheritance tax, 750

"That he valued and appraised all the interest of decedent in tract of land situate in Marion County, Kentucky, at the sum of 4,000

"Collateral tax thereon, 200

Owing to claims made upon the estate as to the title to the two tracts of land in Virginia first described, viz: The tract known as the California property, and the tract known as Peter's mountain property, and advice of counsel that the collateral inheritance tax was not payable on the lands in Virginia and Kentucky, the estate of decedent has not been settled; and though the collateral inheritance taxes have been paid on the balance of the decedent's estate, the payment of it on the lands in Kentucky and Virginia was left for adjudication in the courts.

If the court should be of the opinion that the estate thus appraised is subject to collateral inheritance tax under the laws of Pennsylvania, then judgment to be entered in favor of plaintiff for the sum of $ 2,225, with such interest as the court may adjudge to be due under the collateral inheritance laws, together with 5 per cent. attorney's commission and costs of suit.

If the court should be of the opinion that the said estate is not subject to such tax, then judgment to be entered in favor of defendant with costs.

Either party to have the right to a writ of error within 30 days after judgment.

Witness the hands of the said parties at Pittsburgh, this 25th day of September, 1885.

R. B. Petty, Attorney for Plaintiffs.

D. T. Watson, Attorney for Defendants.

The court held that appraised estate was subject to the collateral inheritance tax and accordingly entered judgment for the plaintiff for $ 2,225 with interest at the rate of six per cent., and attorney's commissions and costs.

The defendants took this writ assigning for error the...