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

• Decision Date: 11 May 1948
• Citation: 252 Wis. 528,32 N.W.2d 349
• Parties: In re BRUST'S ESTATE. STATE v. BRUST et al.
• Court: Wisconsin Supreme Court

252 Wis. 528

32 N.W.2d 349

In re BRUST'S ESTATE.STATE

v.BRUST et al.

Supreme Court of Wisconsin.

May 11, 1948.

Appeal from an order of the County Court for Milwaukee County; M. S. Sheridan, Judge.

Reversed.

The petition of Wilke M. Zimmers was filed on July 7, 1947. It prayed (1) for a finding that a tender of inheritance tax due in the above estate was timely, and (2) for an order that the estate be entitled to a discount of 5% in accordance with sec. 72.06, Stats. From an order entered October 14, 1947, in compliance with the petition, the state of Wisconsin appeals. The material facts will be stated in the opinion.John E. Martin, Atty. Gen., Harold H. Persons, Asst. Atty. Gen., and Neil Conway, Inheritance Tax Counsel, of Madison, for appellant.

Zimmers, Randall & Zimmers and Robert G. Wilke, all of Milwaukee, for respondents.

WICKHEM, Justice.

The only issue in this case is one of law. Decedent died testate June 22, 1946 and proceedings to probate his will were commenced on July 1, 1946. On June 23, 1947 the sum of $3770.01 was paid the county treasurer for inheritance tax upon an estimated basis. June 22, 1947, which was the last day of the year, fell upon Sunday and the question here is whether the ruling of the trial court that payment made on June 23d is effective to satisfy the statute and to preserve the discount is correct. This requires construction of sec. 72.06, Stats., which provides as follows:

‘If such tax is paid within one year from the accruing thereof, a discount of 5 per cent shall be allowed and deducted therefrom. If such tax is not paid * * * interest shall be charged and collected thereon at the rate of 10 per cent per annum from the time the tax accrued. * * * In computing time under this section, the day of death shall be excluded.’

The order must be reversed. Sec. 72.06, Stats., grants the discount on inheritance taxes only if payment is made within the period of one year from the date of decedent's death. Having the essential qualities of an exemption the discount is to be strictly construed. In re Estate of Week, 169 Wis. 316, 172 N.W. 732; In re Estate of Chafin, 210 Wis. 675, 247 N.W. 325;Ritchie v. City of Green Bay, 215 Wis. 433, 254 N.W. 113, 95 A.L.R. 1081;Bowman Dairy Co. v. Wisconsin Tax Comm., 240 Wis. 1, 1 N.W.2d 905;Comet Co. v. Wisconsin Department of Taxation, 243 Wis. 117, 9 N.W.2d 620.

Sec. 72.06, Stats., expresses the limitation of time within which a discount can be earned by paying the tax expressed in terms of a year and not in terms of days. In Williams v. Lane, 87 Wis. 152, 58 N.W. 77, 79, it was held that ‘by the great weight of authority, where the time for doing an act is one or more years, and the last day falls on Sunday, it cannot be lawfully performed on the next day. In such case the act should be performed on the proceeding day.’ This case rules the instant appeal and requires reversal of the order.

It is urged that sec. 370.01(24), Stats., is applicable. This section provides:

‘The time within which an act is to be done as provided in any statute, when expressed in days, shall be computed by excluding the first day and including the last, except that if the last day be Sunday or a legal holiday the act may be done on the next secular day; and when any such time is expressed in hours the whole of Sunday and of any legal holiday, from midnight to midnight, shall be excluded.’

This section was construed in the Williams case to apply ‘only to cases when the time in the statute ‘is expressed in days' * * *.’ See also Siebert v. Jacob Dudenhoefer Co., 178 Wis. 191, 188 N.W. 610, which holds to the same effect. It is suggested that an amendment to sec. 72.06, Stats., by chapter 369, Laws of 1943, has changed the rule of the Williams case. The provision added by this amendment is ‘in computing time under this section the day of death shall be excluded.’ It had been the former rule and the clear statutory purpose as expressed in sec. 72.06, Stats.,...