Smith v. State (In re Smith's Estate)

• Decision Date: 07 December 1915
• Citation: 155 N.W. 109,161 Wis. 588
• Parties: IN RE SMITH'S ESTATE. SMITH v. STATE ET AL.
• Court: Wisconsin Supreme Court

161 Wis. 588

155 N.W. 109

IN RE SMITH'S ESTATE.SMITH

v.STATE ET AL.

Supreme Court of Wisconsin.

Dec. 7, 1915.

Appeal from Circuit Court, Milwaukee County; F. C. Eschweiler, Judge.

In the matter of the estate of Allard J. Smith. From a judgment in favor of Pauline R. F. Smith, executrix, refusing to charge an inheritance tax upon the allowance to the widow for support of herself and the children pending administration, under Stats. 1913, § 3935, subd. 2, the State and the County of Milwaukee appeal. Affirmed.W. C. Owen, Atty. Gen., E. E. Brossard, Asst. Atty. Gen., and W. C. Zabel, Dist. Atty., of Milwaukee, for appellants.

Flanders, Bottum, Fawsett & Bottum, of Milwaukee, for respondent.

TIMLIN, J.

[1] The state and the county of Milwaukee appeal from a judgment refusing to charge an inheritance tax upon the transaction of giving and receiving an allowance to the widow for her support and that of the children pending the administration of the estate, under subdivision 2 of section 3935, Stats. 1913. Section 1087--1, Id., imposes an inheritance tax “upon any transfer of property, * * * when the transfer is by will or by the intestate laws of this state from any person dying possessed of the property while a resident of the state, * * *” or a nonresident leaving property within the jurisdiction of the state, “* * * or when the transfer is * * * by deed, grant, bargain, sale or gift, made in contemplation of the death of the grantor, vendor or donor, or intended to take effect in possession or enjoymentat or after such death,” or when the transfer is by exercise of a power of appointment. “The tax so imposed shall be upon the clear market value of such property * * * and only upon the excess of the exemptions hereinafter granted.” Section 1087--24 defines the word “property” as used above to mean:

“The real and personal property or interest therein of the testator, intestate, grantor, bargainor, vendor or donor, passing or transferred to individual legatees, devisees, heirs, next of kin, grantees, donees, vendees or successors, and shall include all personal property within or without the state.”

Also:

“The word ‘transfer,’ as used in section 1087--1 to 1087--24, inclusive, shall be taken to include the passing of property or any interest therein, in possession or enjoyment, present or future, by inheritance, descent, devise, succession, bequest, grant, deed, bargain and sale, gift or appointment in the manner herein described. * * *”

The allowance to the widow is not, first, a transfer by will or by the intestate laws of this state from any person; second, the property in question is not transferred to the widow as legatee, devisee, heir, next of kin, grantee, donee, vendee, or successor, but by order of the court acting under a statutory power and for the purpose of supporting...