State v. Bunce

• Decision Date: 05 January 1915
• Docket Number: No. 13736.,13736.
• Citation: 173 S.W. 101
• Parties: STATE, to Use of KNOX COUNTY COLLECTOR, v. BUNCE et al.
• Court: Missouri Court of Appeals

173 S.W. 101

STATE, to Use of KNOX COUNTY COLLECTOR, v. BUNCE et al.

No. 13736.

St. Louis Court of Appeals. Missouri.

January 5, 1915.

Rehearing Denied February 16, 1915.

Appeal from Circuit Court, Knox County; Chas. D. Stewart, Judge.

Proceeding by the State, to the Use of the Collector of Knox County, against James A. Bunce, executor of Thomas F. Bunce, and others. From a judgment for defendants, relator appeals. Reversed and remanded, with directions.

C. M. Smith, of Edina, and Orville M. Barnett, of St. Louis, for appellant. F. H. McCullough and J. C. Dorian, both of Edina, for respondents.

REYNOLDS, P. J.

By section 309, Revised Statutes 1909, it is provided:

"All property which shall pass by will, or by the intestate laws of this state from any person who may die seized or possessed of the same while a resident of this state, or, if decedent was not a resident of this state at the time of death, which property or any part thereof shall be within this state, or any interest therein or income therefrom, which shall be transferred by deed, grant, bargain, sale or gift, made or intended to take effect in possession or enjoyment after the death of the grantor, bargainor, vendor or donor, to any person or persons, or to any body politic or corporate, either directly or in trust or otherwise, or by reason whereof any person or body politic or corporate shall become beneficially entitled in possession or expectancy, to any property or the income thereof, other than to or for the use of the father, mother, husband, wife, legally adopted children, or direct lineal descendant of the testator, intestate, grantor, bargainor, vendor or donor, except property conveyed for some educational, charitable or religious purpose exclusively, shall be and is subject to the payment of a collateral inheritance tax of $5 for each and every $100 of the clear market value of such property, and at and after the same rate for every less amount, to be paid to the collector of revenue of the proper county: * * * Provided further, that the word `property,' as used in this section, shall be taken to mean the property or interest therein passing or transferred to individual legatees, devisees, heirs, next of kin, grantees, vendees or donees, and not as the property or interest therein of the testator, intestate, grantor, bargainor, vendor or donor."

One Thomas F. Bunce, then a resident of the present state of New Mexico, and having resided there for about 18 years next before his death, being in bad health, was brought from his home there to Knox county, in this state, where, about three days after his arrival, he died.

By the agreed statement of facts upon which the case was tried in the circuit court, it appears, among other things, that his sole estate consisted of a promissory note payable to him, executed to him by his brother, James A. Bunce, the amount of which does not appear but upon which at the time of the institution of this action the sum of $3,574.41 was due. This note was given by James A. Bunce as part of the purchase price of the interest of Thomas F. Bunce in lands in Knox county in this state, now owned by James A. Bunce. This note had been owned by Thomas F. Bunce from its date to the time of his death, he having had it in his possession in New Mexico when he lived there and having brought it with him to Missouri. By the will of Thomas F. Bunce, James A. Bunce was named as executor and his sister Bridget McKendry as executrix. It appears that on application to the Probate Court of Knox county letters executory were issued to James A. Bunce, who duly qualified. Thomas F. Bunce died single, never having been married, leaving brothers and sisters, nephews and nieces, all collaterals, as his heirs and legatees.

The prosecuting attorney of Knox county, acting on behalf of the collector of the revenue of that county, and proceeding under article 14, chapter 2, Revised Statutes 1909, applied to the Probate Court of that county for citation against James A. Bunce as executor, and such others as might be interested as legatees, all collateral kin, to appear and show cause why their interests in the note should not be subjected to payment of the collateral inheritance tax imposed by the above section 309, and demanding of the executor and legatees the payment of the collateral inheritance tax, averring that they had refused to pay the tax, it being further averred that at the time of his death Thomas F. Bunce was a resident of Knox county, and that this note was subject to the payment of the collateral inheritance tax provided by article 14, chapter 2, Revised Statutes 1909, as property "within this state." Citation was duly issued and upon the hearing of the cause in the Probate Court, that court held that Thomas F. Bunce was a resident of Knox county, this state, at the time of his death and that the property he had left, the note above mentioned, was property within Knox county, in this state and subject to the tax as property going to collateral kin.

On appeal to the circuit court, the cause was tried before the court without a jury upon the agreed statement of facts, and a judgment was rendered against the collector, the circuit court finding that at the time of his death Thomas F. Bunce was a resident of the territory, now state, of New Mexico, and that he had no property subject to the collateral inheritance tax of our state within this state at the time of his death. It accordingly dismissed the citation or petition as against the executor and legatees of Thomas F. Bunce, adjudging costs in their favor. From this, interposing a motion for new trial as well as in arrest of judgment, and saving exceptions to the ruling of the court, the relator, as collector of the county, has duly perfected his appeal.

In State ex rel. Kelly v. Shepherd, 218 Mo. 656, 117 S. W. 1169, 131 Am. St. Rep. 568, Judge Woodson, after stating that the court had been cited to no statute embraced within the revenue laws of the state which attempts to define or fix the residence of any person for the purpose of taxation, holds that in the absence of such a statute we must look to the common law and to other statutes in determining the meaning of the words "residence" and "domicile," as they are used by the Legislature in the revenue statutes. "At common law," he says (218 Mo. 666, 117 S. W. 1171, 131 Am. St. Rep. 568), "all of the authorities agree that those words are used interchangeably and have practically the same meaning. The latter seems to have been more generally used by the textwriters and in the adjudicated cases, but our statutes more frequently use the word `residen...