Sellinger's Adm'r v. Reeves

• Decision Date: 17 November 1942
• Parties: SELLINGER'S ADM'R et al. v. REEVES et al.
• Court: Kentucky Court of Appeals

166 S.W.2d 54

292 Ky. 114

SELLINGER'S ADM'R et al. v. REEVES et al.

Court of Appeals of Kentucky

November 17, 1942

Appeal from Circuit Court, Franklin County; Wm. B. Ardery, Judge.

Action by Max Sellinger's administrator and others against H Clyde Reeves and others, in the nature of an appeal from decision of the Kentucky Tax Commission refusing to grant refund of an inheritance tax paid under protest on gifts made by decedent prior to his death. From an adverse judgment plaintiffs appeal.

Affirmed.

Allen P. Dodd, Jr., of Louisville, and Donald V. Hunter, of Washington, D. C., for appellants.

Hubert Meredith, Atty. Gen., A. E. Funk, Asst. Atty. Gen., and Earl Wilson, of Frankfort, for appellee.

REES Justice.

The administrator of the estate of Max Sellinger seeks a refund of inheritance taxes, amounting to $140,220.61, paid on gifts made by Sellinger prior to his death.

Max Sellinger died testate a resident of Louisville, Kentucky, on April 9, 1938, at the age of 86, leaving surviving him his wife, Mrs. Nannie Sellinger, and two daughters, Miss Jessie Sellinger and Mrs. Leah Sellinger Stannard. On October 16 1935, when he was more than 83 years of age, Max Sellinger made certain gifts to his wife and daughters and paid the gift taxes thereon. On the date of the gifts the value of the property owned by the donor, which consisted principally of intangible personal property, was $2,412,371.80. He gave to his wife $531,344, to Mrs. Stannard $530,835, and to Miss Jessie Sellinger $532,571. He retained for himself property worth $817,621.80. After his death his administrator paid the sum of $18,565.30 as the amount of inheritance taxes due by the estate. The Department of Revenue took the position that the gifts made on October 16, 1935, were made in contemplation of death within the meaning of the Inheritance Tax Statutes, and an additional assessment against the estate in the amount of $140,220.61 was made. That amount was paid under protest, and a petition for review was filed with the Kentucky Tax Commission which found that the gifts were testamentary in character and refused to grant the refund requested. An appeal was taken to the Franklin circuit court where the action of the commission was affirmed. On this appeal it is earnestly insisted that the evidence introduced by appellants overcomes the presumption created by the statute that the gifts were made in contemplation of death.

KRS 140.020 (Carroll's Kentucky Statutes, 1936 Edition section 4281a-13) reads: "Every transfer made within three years prior to the death of the grantor, vendor, or donor of a material part of his estate, or in the nature of a final disposition or distribution thereof, and without an adequate valuable consideration, shall be construed prima facie to have been made in contemplation of death within the meaning of this section. And in the event a transfer was made more than three years prior to the death of the decedent it shall be a question of fact to be determined by the proper tribunal whether such transfer was made in contemplation of death."

That section of the Statutes was under review in Chase's Ex'x v. Commonwealth, 284 Ky. 471, 145 S.W.2d 58, 59, where it was said: "Gifts made in contemplation of death within the meaning of the Inheritance Tax Act are gifts motivated by the thought of death. This does not mean that the donor must believe that death is imminent. The purpose of inserting in inheritance tax laws provisions for taxing gifts made in contemplation of death is to prevent evasion of the tax by transfers which are merely substitutes for testamentary dispositions, and the determination of the nature of the gifts turns on the motive of the donor. United States v. Wells, 283 U.S. 102, 51 S.Ct. 446, 75 L.Ed. 867; Milliken v. United States, 283 U.S. 15, 51 S.Ct. 324, 75 L.Ed. 809; Perry v. Martin, 125 N.J.L. 46, 14 A.2d 266; Mossberg v. McLaughlin, 125 Conn. 680, 7 A.2d 910. The value of the gift, age of the donor, and condition of his health are some of the circumstances to be considered in determining the question of motive. Under our statute a gift made within three years prior to the death of the donor is subject to the tax unless it is shown that it was not made in contemplation of death, and the burden of overcoming the presumption created by the statute is upon those who claim the estate."

In that case Charles C. Chase died at the age of 72, leaving a net estate of more than $600,000. During the last six months of his life he made gifts aggregating $40,000 to his wife and three daughters. During the last three months of his life he was in ill health, but there was proof to the effect that he did not consider himself in danger of immediate death. The principal issue in the case was whether the gifts constituted a material part of the donor's estate within the meaning of the statute, but it was held that the evidence was insufficient to overcome the prima facie presumption that they were made in contemplation of death.

The evidence introduced by appellants in the instant case to overcome the prima facie presumption created by the statute shows that Mr. Sellinger was 83 years and six months of age when the gifts were made. It had been his custom since 1918 to spend the summer months with his wife, two daughters, and Mrs. Stannard's husband and...