Succession of Harrow

• Decision Date: 30 June 1916
• Docket Number: 21932
• Citation: 73 So. 683,140 La. 570
• Court: Louisiana Supreme Court
• Parties: Succession of HARROW

73 So. 683

140 La. 570

Succession of HARROW

No. 21932

Supreme Court of Louisiana

June 30, 1916

On Rehearing, January 15, 1917

SYLLABUS

(Syllabus by the Court.)

Personal property, consisting of money on deposit and jewelry, bonds and promissory notes in a private bank box in this state belonging to the succession of one who was domiciled, resided, and died in another state, and whose estate was inherited by nonresident heirs and legatees by the laws of that state, is not subject to the inheritance tax levied by the inheritance tax law of this state.

Armand Romain, of New Orleans, for appellants.

Samson Levy, of New Orleans (Thomas Gilmore, of New Orleans, of counsel), for appellee.

OPINION

O'NIELL, J.

John W. Harrow had his only residence and domicile in Pass Christian, Miss., where he made his will according to the laws of that state on the 9th of July, and died on the 26th of August, 1915. The only property of the succession in Louisiana consists of a deposit of $ 1,305.10 to his credit in a bank in New Orleans, and the following personal property in a private bank box in the same bank, viz. jewelry appraised at $ 100, bonds appraised at $ 15,870, and promissory notes appraised at $ 30,380.29. The promissory notes are the obligations of parties residing and domiciled in Mississippi and are payable in that state. All of the heirs and legatees to whom the property was transmitted at the death of John W. Harrow have their residence and domicile outside of the state of Louisiana, except an orphan asylum in New Orleans, entitled to a legacy of $ 1,000 under the will. The testamentary executors also have their domicile and residence outside of this state.

The bank refused to deliver to the executors the cash, jewelry, bonds, and promissory notes belonging to the succession, without an order of court, relieving the bank from responsibility for the payment of an inheritance tax. The executors proceeded by rule against the tax collector to show cause why the property should not be exempt from an inheritance tax. The tax collector answered that the property was subject to an inheritance tax of 5 per cent. under Act No. 109 of 1906. Judgment was rendered in favor of the tax collector, dismissing the rule, and the executors have appealed.

The bequest of $ 1,000 to the orphan asylum in New Orleans is exempt from the inheritance tax by the express provision of section 2 of Act No. 109 of 1906 that the tax shall not be imposed on any legacy or donation to a charitable institution.

In the precise language of the statute, the inheritance tax is levied, not on the property of the succession, but on the inheritance or donation mortis causa; that is, on the right to inherit or to receive by testamentary disposition. See Succession of Levy, 115 La. 377, 39 So. 37, 8 L. R. A. (N. S.) 1180, 5 Ann. Cas. 871; Succession of Westfeldt, 122 La. 836, 48 So. 281; Knowlton v. Moore, 178 U.S. 57, 20 S.Ct. 747, 44 L.Ed. 969.

The Court of Errors and Appeals of New Jersey, in Neilson v. Russell, 76 N. J. Law, 655, 71 A. 286, 19 L. R. A. (N. S.) 887, 131 Am. St. Rep. 673, held that an inheritance tax levied by a statute of that state could not be imposed or computed on capital stock in a New Jersey corporation, belonging to a testator who was domiciled in England. The court, in its opinion, said that the inheritance tax was not a property tax; that the rights of testamentary disposition and of succession were creatures of the law; and that the only authority that could impose terms or conditions upon the exercise or operation of the right of testamentary disposition and succession was the authority that created the right.

In Plummer v. Coler, 178 U.S. 115, 20 S.Ct. 829, 44 L.Ed. 998, it was said:

'The right of an individual citizen and resident of the state to direct the descent of his property by will or permit its descent to be regulated by the statute, as well as the right...