State v. Boney

• Decision Date: 04 December 1922
• Docket Number: 28
• Citation: 245 S.W. 315,156 Ark. 169
• Parties: STATE v. BONEY
• Court: Arkansas Supreme Court

245 S.W. 315

156 Ark. 169

STATE v. BONEY

No. 28

Supreme Court of Arkansas

December 4, 1922

Appeal from Lafayette Circuit Court; George R. Haynie, Judge reversed.

Judgment reversed and cause remanded.

J S. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants; W. V. Tompkins, Special Counsel; David A. Gates, Inheritance Tax Attorney, for appellant.

1. After the decision of this court in McDaniel v Byrkett, 120 Ark. 295, the Legislature, by the amendatory act of 1917, specifically taxed dower, and it had the constitutional right to do so. The right of dower is not a property right, but a privilege. 49 U. S. (8 How.) 490-493; 178 U.S. 41-45; 9 R. C. L. 563; 90 U.S. 137-148; 112 N.W. 1020; 102 Minn. 253; 35 Id. 436; 40 Id. 164. It is a creature of law and not of contract, subject, while it remains inchoate, to such modifications and qualifications as the Legislature may deem proper to impose. 6 Ohio St. 547; 8 N.Y. 110. See also 11 Ark. 212; 17 Penn. St. 449; 55 Ark. 225-233; 62 Id. 11; 2 Bishop, Married Women, § 42; 19 L. R. A. 256-262; Cooley's Const. Lim., 6th ed., 441. It is not a vested right, but "a mere intangible, inchoate, contingent expectancy." 53 Ark. 279; 56 Id. 139. See also 53 Ark. 255; 60 Id. 169; 14 Id. 465; 21 Id. 62. It is as much a creature of statute as are inheritances.

The estates of dower and curtesy, tenancy by the entirety and joint tenancy are similar in that neither is an estate of inheritance, and neither passes under the intestate laws of the State. If curtesy, tenancy by the entirety and joint tenancy can be taxed (and wherever there is a specific statute taxing them, such statutes have been upheld), then dower may also be taxed. Laws of New York, 1911, chap. 73, art. 10, § 243; 1 Washburn on Real Property, 8 ed., 529; Reeves on Real Property, vol. 2, §§ 689-870; Tiedman, Real Property, 2nd ed., § 237; 165 N.Y.S. 887; Id. 127; 166 Id. 1079; 169 Id. 206; 170 Id. 232; 221 N.Y. 15. See also 248 Ill. 147; 15 Cal. 308; 78 Cal. 319; 93 P. 1025.

2. The amendment, approved February 16, 1917, at the first session of the Legislature following the decision of this court in McDaniel v. Byrkett, 120 Ark. 295, amended subdivision 1 of section 1, act of March 24, 1913, the inheritance tax act, which, like the act of 1909, construed in the McDaniel case, did not include dower, by incorporating therein, in the proper connection, the words "including widow's dower, or any property in any way granted, given or devised to the widow in lieu of dower, and to the husband's curtesy, or any gift, grant or bequest of the wife to the husband."

The effect of this amendment was to substitute the section, as amended and reenacted, for the old section, and to so change the act as to make it read in the same manner it would have read, and to give the same effect it would have had, if it had been originally enacted as amended. 100 Ark. 175. The words "estate" and "property," in the original act, §§ 10217- 10218, C. & M. Digest, did not include dower and curtesy. By the amendment they were included. See also Black on Interpretation of Laws, ch. 357.

Henry Moore, Jr., and A. L. Burford, for appellees.

1. The widow's dower is not subject to an inheritance tax. In determining whether or not the law invoked by the State in this case taxes dower, all doubt must be resolved in favor of the widow, both on the ground that a taxing statute,--levying a special tax--is being considered, and because the effect of the statute is to diminish dower. 120 Ark. 295, 179 S.W. 491; 30 S.W. 745; 184 U.S. 583, 46 L. ed. 697; 5 Ark. 82; 42 S.Ct. 346. If this question is in doubt, the title of the act may be examined to determine the legislative intent.

Inheritance taxes are not laid upon the property of a decedent, but are in the nature of excise taxes, and are a tax upon the privilege of succeeding to an inheritance. 100 Ark. 179, 139 S.W. 1112.

The transfers that are taxable are set out in § 10218, C. & M. Digest. They are embraced under five classifications, and, unless dower is included therein, it is not subject to this tax, irrespective of the definition of "property" and "estate" contained in § 10217, Id.

Had the Legislature intended to tax dower, unambiguous language could, and should, have been used; but, being ambiguous and this question in doubt, this doubt must be resolved against the State, and in favor of the taxpayer.

2. Dower is not a mere privilege, to be placed on the same footing with an inheritance, or to be classified with hawkers and peddlers. It is an incumbrance upon the title of the heirs at law, superior to the claims of the husband's creditors, a positive and definite institution of the State, dependent not entirely upon maintenance and nurture of the widow and her children, but exists also for reasons of public policy. 11 Ark. 82; 137 S.W. 924; 19 Corpus Juris, 460, § 10; Bacon, Uses, p. 37; 2 Blackstone, Comm. 129-133; Gilbert, Uses, p. 354 et seq.; Park, Dower, p. 2; 13 Ark. 761; 44 Ark. 134.

If the present law be held to include dower, then that portion of the statute is unconstitutional and void. Art. XVI, § 5, Constitution 1874.

OPINION

SMITH, J.

This appeal involves the right of the State to tax a widow's right to take dower, under the authority of act 96 of the Acts of 1917, page 455. The court below held that there was no such authority, and the State has appealed.

An attempt was made by the State to tax a widow's dower in the case of McDaniel v. Byrkett, 120 Ark. 295, 179 S.W. 491; but, after a review of the authorities and a consideration of the nature and character of dower, we reached the conclusion that the statutes on the subject then in force did not authorize the imposition of a tax on dower. Our conclusion to that effect was summed up in the construction we gave the statute then in force as, follows: "We conclude therefore that the widow of a deceased person does not take dower as the heir of her husband, or by virtue of the intestate laws, but that this estate is inimical to the claim of the heir and is carved out of the estate of the deceased in spite of, and in derogation to, the rights of the heir under the intestate laws, and the judgment of the court below (denying the right to tax dower) will therefore be affirmed."

This opinion was delivered October 11, 1915, and at the next session of the General Assembly the law was amended by amending act 197 of the Acts of 1913, page 824, which had itself amended act 303 of the Acts of 1909 (Acts 1909, p. 904).

The first section of the act of 1913 was one of definitions, and the words "estate," "property," "tangible property," "intangible property," and "transfer" were defined. After defining the word "transfer" in section 1 of the act, section 2 thereof dealt with the subject of "taxable transfers."

Section 1 of the act of 1917 reads as follows: "That subdivision one of section 1 of the act 197 of the Acts of 1913, same being the act to establish a tax on gifts, legacies, inheritances, bequests, successions, and transfers of property, be amended so as to read as follows: (1) The words 'estate' and 'property,' as used in this act, shall be taken to mean the property or interest therein passing or transferring to any individual or corporate legacies, devisees, heirs, next of kin, grantees, donees or vendees, including widow's dower or any property in any way granted, given or devised to the widow in lieu of dower, and the husband's curtesy, or any gifts, grant or bequest by the wife to the husband, and not as property or interest therein of the decedent, donor or vendor, and shall include all property or interest therein, whether situated within or without the State. Provided, five thousand ($ 5,000) dollars of the market value of the widow's dower or the husband's curtesy shall be exempt from taxation."

The amendment consisted in the correction of certain typographical errors (and others were made in the amendment) and the addition of two phrases. The first phrase reads as follows: "including widow's dower or any property in any way granted, given or devised to the widow in lieu of dower, and the husband's curtesy, or any gifts, grant or bequest by the wife to the husband. " The second addition is: "Provided, five thousand ($ 5,000) dollars of the market value of the widow's dower or the husband's curtesy shall be exempt from taxation."

The act of 1917 does not expressly amend section 2 of the act of 1913, which deals with "taxable transfers," and it is insisted that this omission renders nugatory the amendment made to section 1 of the act of 1913. We do not think so. It is a settled rule of construction that an act must be read in its entirety to extract its meaning, and that acts dealing with the same subject must be read in pari materia in construing them. The case of State v. Handlin, 100 Ark. 175, 139 S.W. 1112, discussed the effect of an amendment to the inheritance tax law, the amendment being made by changing a certain section thereof, and the court said (quoting the syllabus): "The effect of an amendment of an act is to so change the act as to make it read in the same manner it would have read and to give it the same effect it would have had if it had been originally enacted as amended."

When the act under review is thus construed, we think the legislative intent in amending section 1 of the act of 1913 is too plain to be mistaken, the purpose being to make taxable the widow's dower, or any property granted or devised in lieu of dower, and to make taxable the husband's curtesy, or any grant or bequest by a wife to her husband. The proviso that five thousand dollars of the market value of the widow's dower shall be exempt from taxation is itself a direction that the excess over that amount shall be...