People v. Kellogg

• Decision Date: 24 June 1915
• Docket Number: No. 10087.,10087.
• Citation: People v. Kellogg, 268 Ill. 489, 109 N.E. 304 (Ill. 1915)
• Parties: PEOPLE v. KELLOGG.
• Court: Illinois Supreme Court

268 Ill. 489

109 N.E. 304

PEOPLE

v.KELLOGG.

No. 10087.

Supreme Court of Illinois.

June 24, 1915.

Appeal from McHenry County Court; David T. Smiley, Judge.

Petition by the People against Charles W. Kellogg, as executor, for a rule to show cause why a portion of the inheritance tax should not be paid. From a judgment denying the petition and dismissing it, petitioner appeals. Affirmed.P. J. Lucey, Atty. Gen., and Thomas J. Young, of Chicago, for the people.

A. A. Worsley, of Chicago, for appellee.

WATSON, J.

Alfred M. Barber, a resident of McHenry county, Ill., died testate on September 14, 1912. His will was duly admitted to probate in the county court of that county, and Charles W. Kellogg was permitted to, and did, qualify as executor, and thereafter E. W. Stuart, a citizen of Ohio, and Magnus W. Barber, a citizen of Missouri, who were also named in the will as executors thereof, but because of their nonresidence were not permitted to qualify in Illinois, qualified as ancillary executors in Ohio, where the testator owned real estate in the counties of Lee and Summit.

The will contains 37 paragraphs, and provides for a great number of legacies. By paragraphs numbered from 27 to 35, inclusive, bequests amounting to $200,700 were made to certain charitable institutions and cemeteries in the state of Ohio, and these bequests, under the laws of that state, are exempt from the operation of the inheritance tax laws of that state. The will directs that all the estate, both real and personal (but the personal estate first), should be converted into cash; also that each of the three executors named in the will should have charge of the testator's property in the state of his residence. The paragraphs of the will necessarily brought under consideration by this litigation are as follows:

‘Item 27. I hereby give and bequeath to the trustees of the Akron Rural Cemetery Association the sum of $500, the income of which shall be used for the perpetual care of the Van Sickle lot, where my late wife's relatives are buried, and for the care of the Bloom lot, so called, where my late wife's sister and her family are buried.

‘Item 28. I hereby give and bequeath to the trustees of Bath township, Summit county, Ohio, $200, to be held by said trustees and their successors in office forever, for the sole use and purpose of investing the same in undoubted securities, the income from which shall be used in ornamenting and keeping in good order the graves of my father, step-father and brother there buried.

‘Item 29. It is my will, and I hereby direct, that all of the foregoing bequests be first paid by my executors before any of the bequests hereinafter made.

‘Item 30. I give and bequeath to the First Baptist Church of Akron, Ohio, of which my late wife was a member, the sum of $5,000, to be used for the benefit of such church as its board of trustees may determine.

‘Item 31. I give and bequeath to the Akron City Hospital the sum of $25,000, to be used for the benefit of such hospital as its board of trustees may determine.

‘Item 32. I give and bequeath to the Akron Public Library the sum of $10,000, which sum shall be kept safely invested by the trustees of said library and the income therefrom used for the purchase of books for said library.

‘Item 33. I give and bequeath to the board of trustees of the Young Men's Christian Association of Akron, Ohio, the sum of $5,000, to be used for the benefit of said association as may be determined by said board of trustees.

‘Item 34. I give and bequeath to the board of trustees of the Young Women's Christian Association of Akron, Ohio, the sum of $5,000, to be used by them for the benefit of said association.

‘Item 35. For the purpose of maintaining in the city of Akron, Ohio, or adjacent thereto, a home for the support and care of respectable aged men and women of said city who are dependent, wholly or partially, on charity for their support, I give and bequeath the sum of $150,000, which amount shall be paid by the executors of this will to three discreet and judicious persons, residents of said city, to be named by said executors, as trustees of said fund, who shall safely invest and keep invested said fund, using the income, only, for the purpose of maintaining such home, and they shall so manage said fund as to best carry out the purpose of this bequest. In the event of the failure of said executors to appoint such trustees within two years after the probating of this will the probate court of Summit county, Ohio, shall make such appointment; and the successor of any trustee shall be appointed by such court on failure of said trustees to make an appointment to fill a vacancy on said board within thirty days after such vacancy occurs, and said trustees shall make full report of all their transactions and render account of the receipt and expenditure of all moneys belonging to said fund annually, and oftener if required by said court, to said court for its inspection and approval, which reports shall be kept on file in said court.

‘Item 36. After the full payment of each and all of the foregoing bequests, the balance of my estate I give, bequeath and devise as follows, to wit: Two-thirds of said balance to such persons as would be my legal heirs and distributees under and according to the laws of descent of the state of Illinois in cases of intestacy, when the deceased leaves no widow or child of his body surviving, and each of such persons shall receive such share as is provided by such statute under the said condition. And I give, devise and bequeath the other one-third of such balance to such persons as the laws of Illinois would designate as the legal heirs of my late wife, Sarah Barber, had she died in that state leaving no widower or child of her body surviving, and each of such persons shall receive such share as is provided by such statute under such conditions.

‘Item 37. I hereby nominate Charles W. Kellogg, of Crystal Lake, Illinois, Magnus W. Barber, of Kansas City, Missouri, and E. W. Stuart, of Akron, Ohio, to be the executors of this my last will and testament without bonds, and request that there be no inventory or appraisement of the property of my estate.

‘I hereby authorize and direct my said executors or their successors to sell and convert into money any or all of my property, real or personal, for such price and on such terms as to them may seem best for the interests of my estate, and to execute and deliver deeds for such real property to the purchasers conveying the fee-simple title thereto, without any authority or order from any court.

‘It is my will that all bequests be paid within two years after the probating of this will, and that the executors proceed to convert stocks, bonds and other personal property into money before selling the real property.

‘It is my will, and I direct, that the said Charles W. Kellogg, as executor, have the custody of all my bonds, stocks and evidences of indebtedness due me, now deposited in the state of Illinois, and that the said E. W. Stuart, as executor, have the custody of all my bonds, stocks and evidence of indebtedness due me, now deposited in the state of Ohio, and that the said Magnus W. Barber, as executor, have the custody of all bonds, stocks and evidence of indebtedness due me, now deposited in the state of Missouri, but none of such bonds or stocks shall be sold or exchanged for other bonds or stocks without the approval of all of said executors. Said executors shall be authorized to compromise, adjust and settle all claims due me, without any order of court so to do.

‘Witness my hand and seal this 31st day of August, A. D. 1912.’

The inventory of the estate filed by the Illinois executor disclosed personal assets of a value slightly in excess of $1,500,000 and the aforementioned Ohio real estate.

On January 6, 1913, the county court of McHenry county appointed an appraiser under the provisions of the Inheritance Tax Law of Illinois, and such further proceedings were had as resulted, on March 12, 1913, in fixing the amount of inheritance or transfer tax due from all of the beneficiaries under the will at $62,624.29, of which the Illinois executor subsequently paid $45,609.29, leaving unpaid $17,015, which latter amount is made up of items appearing (as stipulated) in the following table:

+-----------------------------------------------------------------------------+
                ¦Beneficiary.                    ¦Amount of   ¦Statutory     ¦Rate.¦Tax.      ¦
                ¦                                ¦Legacy.     ¦Exemption.    ¦     ¦          ¦
                +--------------------------------+------------+--------------+-----+----------¦
                ¦Y.M.C.A. of Akron, Ohio         ¦$5,000      ¦None          ¦3%   ¦$150.00   ¦
                +--------------------------------+------------+--------------+-----+----------¦
                ¦Y.W.C.A. of Akron, Ohio         ¦5,000       ¦None          ¦3%   ¦150.00    ¦
                +--------------------------------+------------+--------------+-----+----------¦
                ¦Akron Rural Cemetery of Akron,  ¦500         ¦None          ¦3%   ¦15.00     ¦
                ¦Ohio                            ¦            ¦              ¦     ¦          ¦
                +--------------------------------+------------+--------------+-----+----------¦
                ¦First Baptist Church of Akron,  ¦5,000       ¦None          ¦3%   ¦150.00    ¦
                ¦Ohio                            ¦            ¦              ¦     ¦          ¦
                +--------------------------------+------------+--------------+-----+----------¦
                ¦Akron City Hospital of Akron,   ¦25,000      ¦None          ¦5%   ¦1,250.00  ¦
                ¦Ohio                            ¦            ¦              ¦     ¦          ¦
                +--------------------------------+------------+--------------+-----+----------¦
                ¦Akron Public Library of Akron,  ¦10,000      ¦None          ¦3%   ¦300.00    ¦
                ¦Ohio                            ¦            ¦              ¦     ¦          ¦
                +--------------------------------+------------+--------------+-----+----------¦
                ¦Akron Home for Old Men and Women¦150,000

...