State ex rel. Madden v. Sartorius

• Decision Date: 28 July 1942
• Docket Number: 37870
• Citation: 163 S.W.2d 987,349 Mo. 1054
• Parties: State of Missouri at the relation of Thomas R. Madden, as Administrator of the Estate of Hazlett Kyle Campbell, Relator, v. Eugene J. Sartorius, as Judge of the Circuit Court of the City of St. Louis
• Court: Missouri Supreme Court

163 S.W.2d 987

349 Mo. 1054

State of Missouri at the relation of Thomas R. Madden, as Administrator of the Estate of Hazlett Kyle Campbell, Relator, v. Eugene J. Sartorius, as Judge of the Circuit Court of the City of St. Louis

No. 37870

Supreme Court of Missouri

July 28, 1942

Alternative writs made peremptory.

Igoe Carroll & Keefe and Paul G. Ochterbeck for relator.

(1) Mandamus is the appropriate remedy to compel the allowance of the appeals. In re Campbell, 323 Mo. 757, 19 S.W.2d 752; Hall v. Audrain County Court, 27 Mo. 329. (2) Respondent admitted that relator was made a party defendant on his order and duly summoned into court, and that relator took all of the statutory prerequisites to perfect the three appeals. Secs. 1184, 1186 and 1187, R. S. 1939. (3) Relator's answer and cross bill sets up alternative claims to all or one-half of the personal property therein described. These claims give relator an interest in the subject matter of the suit. However, in this mandamus proceeding, the court will not review the merits of relator's appeal but will only determine relator's right to appeal. State ex rel. Speckerman v. Allen, 92 Mo. 20; State ex rel. Adamson v. Collier, 62 Mo.App. 38; High's Extraordinary Legal Remedies (3 Ed.) sec. 188, p. 190. (4) It is relator's duty as administrator to assert the claims presented in his answer and cross bill so as to recover the personal property held by the plaintiff trustees. (a) It is the duty of the administrator to collect and take into his possession all of the personal property of his decedent. Secs. 38, 57, R. S 1939. (b) Title to personalty of one dying intestate passes to his administrator, and in the absence of an order of distribution heirs have no interest therein. Jones v Peterson, 335 Mo. 242, 72 S.W.2d 76; Wass v. Hammontree, 77 S.W.2d 1006; Toler v. Judd, 262 Mo. 344, 171 S.W. 339; Green v. Tittman, 124 Mo. 372, 27 S.W. 391; Todd v. James, 157 Mo.App. 416, 138 S.W. 929; Johnston v. Johnston, 173 Mo. 91, 73 S.W. 202. (5) Missouri and Federal "estate taxes" accrued upon Hazlett's death and are debts secured by lien. Secs. 574, 575, R. S. 1939; 26 U.S.C. A., secs. 422, 427 (1934 Ed.); 105 A. L. R. 1265-1267; Rosenberg v. McLaughlin, 66 F.2d 271; Ewbank v. United States, 50 F.2d 409; Hodgkins v. Commissioner of Internal Revenue, 44 F.2d 43. (a) Demands for taxes need not be presented to probate court for allowance. Sec. 181, R. S. 1939. (b) The fact that estate taxes become a lien on the date of death and are payable after death does not alter the fact that they are debts. Personal property taxes assessed against an estate after decedent's death are debts but not subject to the Statute of Limitations. State ex rel. Zeigenhein v. Tittman, 103 Mo. 553, 15 S.W. 936; State ex rel. Rudder v. Hapke, 326 Mo. 788, 31 S.W.2d 788; State ex rel. Zeigenhein v. Tittman, 119 Mo. 661, 24 S.W. 1032. (6) The Missouri inheritance (legacy) tax gives the State a vested financial interest in the Hazlett Campbell Estate the same as the other distributees. (a) The taking of property by inheritance or by will is not an absolute or natural right, but one created by the laws of the sovereign power. The State may foreclose the right absolutely or partially, or it may grant the right upon conditions precedent. State ex rel. McClintock v. Guinotte, 275 Mo. 298, 204 S.W. 806; Shepherd v. Murphy, 332 Mo. 1176, 61 S.W.2d 746; Natl. Safe Deposit Co. v. Stead, 250 Ill. 584, 95 N.E. 973. (b) An inheritance tax is a tax upon the right of succession and is not a tax upon the property itself. In re Rosing's Estate, 337 Mo. 544, 85 S.W.2d 495; State ex rel. McClintock v. Guinotte, 275 Mo. 298, 204 S.W. 806; Natl. Safe Deposit Co. v. Stead, 250 Ill. 584, 95 N.E. 973. (c) The right of the State to inheritance taxes vests upon the death of the decedent. Sec. 578, R. S. 1939; Natl. Safe Deposit Co. v. Stead, 250 Ill. 584, 95 N.E. 973. (d) The State has a vested financial right in the estate of every decedent which is subject to the payment of an inheritance tax, and that right is equal in degree to that of the personal representative, the heir, or the devisee of the decedent and it vests at the same moment of time that the interest of the personal representative, heir or devisee vests. Natl. Safe Deposit Co. v. Stead, 250 Ill. 584, 95 N.E. 973; People v. Graw, 363 Ill. 205, 2 N.E.2d 71; People v. Strom's Estate, 363 Ill. 241, 2 N.E.2d 94. (e) Relator as administrator is made personally liable for collection and payment of Missouri inheritance and estate taxes. Sec. 579, R. S. 1939. (7) Under the Federal statutes, relator as administrator had certain positive duties to perform and he is made personally liable for the payment of the estate taxes. (a) Administrator is compelled to give notice within two months after death of decedent that tax may be due under Section 304 of Revenue Act of 1926 and Section 403 of Revenue Act of 1932. 26 U.S.C. A., secs. 420, 537 (1934 Ed.). (b) Administrator is required to prepare and file estate tax return, in duplicate, under Section 304 (a) of the Revenue Act of 1926. 26 U.S.C. A., sec. 421 (1934 Ed.). (c) Where decedent died after August 31, 1935, tax is due and payable fifteen months from date of death. Section 305 (a) of Revenue Act of 1926 as amended by Section 203 (a) of Revenue Act of 1935. 26 U.S.C. A., sec. 422 (pocket part -- 1934 Ed.). (d) Administrator is personally liable for estate tax. 26 U.S.C. A., sec. 422 (b) (1934 Ed.). He can only be released from personal liability by applying for discharge from such personal liability under Section 313 (b) and (c) of Revenue Act of 1926, 26 U.S.C. A., sec. 425 (1934 Ed.). (8) Relator as administrator is in reality a trustee for the benefit of creditors, heirs and distributees. Love v. White, 348 Mo. 640, 154 S.W.2d 759.

William M. Fitch for respondent.

(1) Mandamus is not a writ of right. Its issuance lies in the sound judicial discretion of the court. State ex rel Cranfill v. Smith, 330 Mo. 252, 48 S.W.2d 891; State ex inf. Barker, Atty. General, ex rel. Kansas City v. Kansas City Gas Co., 254 Mo. 515, 163 S.W. 854; State ex rel. Howe v. Hughes, 343 Mo. 827, 123 S.W.2d 105; State ex rel. Crow v. Boonville Bridge Co., 206 Mo. 74, 103 S.W. 1052; High on Extraordinary Legal Remedies (3 Ed.), sec. 9. (2) The writ of mandamus is an extraordinary remedy, the granting of which rests with the sound discretion of the court, and such discretion must be exercised to deny the writ unless relator proves a clear legal right to the relief demanded. The burden of establishing such clear legal right rests upon relator. State ex rel. v. Hudson, 226 Mo. 239, 126 S.W. 733; State ex rel. Thomas v. Williams, 99 Mo. 291, 12 S.W. 905; State ex rel. People's Ry. Co. v. Talty, 139 Mo. 379; State ex rel. Kern v. Stone, 269 Mo. 334, 190 S.W. 601. (3) The extraordinary writ of mandamus should not be granted to relator in this case because relator has two statutory remedies open, each of which would afford the administrator complete relief: (1) under Section 1189, R. S. 1939, which provides that the appellant may present the record, together with his assignment of errors, to a judge of the Supreme Court, which Judge is empowered to grant the appeal upon a prima facie showing so made; and (2) under Section 1200, R. S. 1939, the administrator, relator here, had the statutory right to prosecute his writ of error in the Supreme Court, for the purpose of reviewing all proceedings in said controvesy, whether the errors complained of arise on the record proper or on exceptions preserved during the trial of such issues. A writ of error is a writ of right, and the administrator had that remedy available as a matter of right. He therefore has no right in this case to relief under the extraordinary remedy of mandamus. State ex rel. Howe v. Hughes, 343 Mo. 827, 123 S.W.2d 105; State ex rel. Spring River Electric Power Co. v. Thurman, 232 Mo. 130, 132 S.W. 1157; State ex rel. Porter v. Hudson, 226 Mo. 239, 126 S.W. 733; State ex rel. Tate v. Sevier, 334 Mo. 771, 66 S.W.2d 50; State ex rel. Crow v. Boonville Bridge Co., 206 Mo. 74, 103 S.W. 1052; State ex rel. Herriford v. McKee, 150 Mo. 233, 51 S.W. 421. (4) The writ of mandamus will be refused where, if granted, it would be unavailing, or where the act to be performed would be unlawful, for the court will not compel the performance of a vain or unlawful act. State ex rel. Cranfill v. Smith, 330 Mo. 256, 48 S.W.2d 891; State ex rel. Wilcox v. Draper, 50 Mo. 24; Harrington v. Denny, 3 F.Supp. 584; Foster v. Mansfield, C. & L. M. R. Co., 146 U.S. 88, 36 L.Ed. 899; Gilbert v. Auster, 135 Wis. 581, 116 N.W. 177; Rust v. Conrad, 47 Mich. 449, 11 N.W. 265; Dixie Grain Co. v. Quinn, 181 Ala. 208, 61 So. 886; Ferris on Extraordinary Legal Remedies, secs. 196, 204. (5) The appellate court will not by mandamus compel the judge of the trial court to grant an appeal which he has refused, where it appears on the face of the record proper and the admissions of the parties that the appeal applied for could give appellant no relief if appeal be granted. State ex rel. People's Ry. Co. v. Talty, 139 Mo. 379, 40 S.W. 942; State ex rel. Fischer v. Vories, 333 Mo. 197, 62 S.W.2d 457; Hatch v. Frazer, 138 Mich. 184, 101 N.W. 228; Harrison v. McCabe, 10 Kan.App. 194, 63 P. 277; State ex rel. Culbertson Ferry Co. v. District Court, etc., 49 Mont. 595, 144 P. 159; State v. Still, 178 Ala. 442, 59 So. 628; People ex rel. Mark v. Walker, 286 Ill. 541, 122 N.E. 92; People ex rel. Dodson v. Kohlsaat, 168 Ill. 37, 48 N.E. 81; Re Buder, 271 U.S. 461, 70 L.Ed. 1036, 46 S.Ct. 557; State ex rel. Gold v. Secrest, 33 Minn. 381, 23 N.W. 545. (6) The affidavit for appeal presents only a prima facie claim of the appellant who makes it, and for whose benefit the...