State v. Dalrymple

• Decision Date: 01 March 1889
• Citation: 17 A. 82,70 Md. 294
• Parties: STATE v. DALRYMPLE ET AL.
• Court: Maryland Court of Appeals

17 A. 82

70 Md. 294

STATE v. DALRYMPLE ET AL.

Court of Appeals of Maryland

March 1, 1889

Appeal from Baltimore court of common pleas; C. E. PHELPS, Judge.

Action instituted by consent by the state of Maryland against Augustine J. Dalrymple and J. Southgate Lemmon administrators c. t. a. of William H. Dalrymple deceased, to recover a sum as a tax imposed on a legacy given by the will of said decedent. A demurrer to the declaration was sustained, and the state appeals.

Argued before MILLER, BRYAN, IRVING, ROBINSON, STONE, and MCSHERRY JJ.

Wm. Pinckney Whyte, Atty. Gen., and Charles G. Kerr, State's Atty., for appellant.

Albert Ritchie and J. S. Lemmon, for appellees.

MCSHERRY J.

William H. Dalrymple, a resident of California, died there on the 22d of November, 1881, leaving a last will and testament executed according to the laws of that state. By his will he bequeathed all his personal property to one Marie E. Hatch, now Marie E. Gamble, also of California. She was not the mother, the wife, the child, nor lineal descendant of the testator. The will was duly admitted to probate in the probate court of the decedent's domicile, and letters of administration were there granted with the will annexed to Peter Alfrits. Subsequently a certified transcript of said will and probate was admitted by the register of wills of Baltimore city to record, and was recorded in his office. Thereafter letters of administration with the will annexed were issued by the orphans' court of Baltimore city to the appellees. When William H. Dalrymple died he was entitled to a one-fourth undivided part of the personal estate of his brother, Edwin A. Dalrymple, a resident of the state of Maryland, who died in the city of Baltimore in October, 1881, some three weeks prior to the decease of William. Upon the settlement of Edwin's estate the appellees received, as administrators of William's estate, sundry certificates of national bank stock and Baltimore city stock, several Missouri state bonds, and cash, aggregating, at the appraised value of the securities, the sum of $27,337.87, which was diminished by the payment of costs and expenses to the sum of $21,449.21; but the accretions from dividends and interest have since increased this latter amount to the sum of $27,320.77, which the appellees now hold ready for delivery to the said Mrs. Gamble, the legatee named in William's will. Upon this sum the state of Maryland claims that the appellees owe to the state the collateral inheritance tax of 2 1/2 per cent. imposed by section 102 of article 81 of the Code of 1888. Suit was brought by the state against the appellees for the recovery of this tax. To the declaration, which sets forth in detail the facts we have just outlined, the appellees demurred, and the court of common pleas of Baltimore sustained the demurrer, and entered judgment thereon against the state. From that judgment this appeal has been taken.

The statute imposing this tax is in these words: "All estates, real, personal, and mixed, money, public and private securities for money of every kind, passing from any person who may die seised and possessed thereof, being in this state, * * * to any person or persons, bodies politic or corporate, in trust or otherwise, other than to or for the use of the father, mother, husband, wife, children, and lineal descendants of the grantor, * * * shall be subject to a tax of two and a half per centum on every hundred dollars of the clear value of such estate, money, or securities. * * *" It has been settled by this court in Tyson v. State, 28 Md. 577, that such a tax is free from any constitutional objection. There can be no doubt that the legislature has the power to impose it, not only where it affect citizens of the state, but also where non-residents or aliens claim by inheritance or by will property located here. Every state in the Union, in the absence of a constitutional prohibition, has the authority to regulate by law the devolution and distribution of an intestate's property situated within the jurisdiction of that state, and personal property situated elsewhere, but owned by a resident, and to prescribe who shall and who shall not be capable of taking it. It seems scarcely necessary to cite authorities in support of these indisputable propositions, but we refer to Mager v. Grima, 8 How. 490, and Eyre v. Jacob, 14 Grat. 422. We may add that our statutes abolishing primogeniture and directing the descent of real estate, and those regulating the distribution of personal property, and respectively designating who shall inherit the one and who shall take the other, and former enactments now repealed, prohibiting aliens from acquiring property in this state except upon compliance with the conditions imposed, are instances of the exercise of the same power.

Possessing then, the plenary power indicated, it necessarily follows that the state, in allowing property actually located here, or personal property situated elsewhere, but owned by a resident, to be disposed of by will, and in designating who shall take such property where there is no will, may prescribe such conditions, not in conflict with or forbidden by the organic law, as the legislature may deem expedient. These conditions, subject to the limitation named, are, consequently, wholly within the discretion of the general assembly. The act we are now considering plainly intended to require that a person taking the benefit of a civil right secured to him under our laws should pay a certain premium for its enjoyment. In other words, one of the conditions upon which strangers and collateral kindred may acquire a decedent's property, which is subject to the dominion of our laws, is that there shall be paid out of such property a tax of 2 1/2 per cent. into the treasury of the state. This, therefore, is not a tax upon the property itself, but is merely the price exacted by the state for the privilege accorded in permitting property so situated to be transmitted by will, or by descent or distribution. That this is so is abundantly clear from the language of the statute and its several provisions. The whole contention of the appellees is that the words used in the act of assembly, viz., "being in this state," refer to the decedent, and not to the property. If it be true that they do refer to the person, the tax is not collectible, because William H. Dalrymple was a citizen of California, was domiciled there, and died there. If, on the other hand, they apply to the property, the tax is collectible, because the property is actually within this state, and was so at the time of William H. Dalrymple's death. A careful examination of the several sections of article 81 of the Code relating to this subject has brought us to the conclusion that the tax is payable out of the estate of a deceased non-resident when property owned by him is actually within this state, and that it is payable out of the estate of a deceased resident when his property is actually or in legal contemplation situated here: provided, of course, in both instances, the property passes to a person other than the father, mother, husband, wife, children, or lineal...