72 P. 947 | Utah | 1903
after stating the facts, delivered the opinion of the court.
In support of the first ground of the demurrer,
Under the provisions of section 2731 of the Revised Statutes of 1898, both the real and personal estate of a decedent, except the homestead, and a limited amount of personal property which is by law exempted, is chargeable with the payment of all of the decedent’s debts, so that all of his property, both real and personal, except such as is exempted, may be sold, when necessary to pay the debts of the estate; and before the amount of the indebtedness is ascertained, and the affairs of the estate settled, it cannot be known what, if anything, will be left for distribution among those entitled to share in the estate, and neither of them have a right to any dis
The title to the statute in question is as follows: “An Act to tax gifts, legacies, and inheritances in certain cases and provide for the collection of the tax.” This title is substantially the same as the title to the statutes under consideration in the cases before referred to, which hold that the tax is imposed upon' the right of devolution and succession, so that the title does not indicate, as claimed by appellant, that the tax is imposed only upon the separate portions of the decedent’s estate, exceeding $10,000, transmitted by gift, legacy or inheritance.
This brings us to the question of the
The trial court overruled the demurrer, whereupon, the defendant having elected to stand upon the demurrer, the court granted, in accordance with the prayer of the complaint, a peremptory writ of mandamus, directing the defendant, as executor of the last will and testament of James M. Ricketts, deceased, to pay to the plaintiff, as State Treasurer, the sum of $793.83, the tax sought to he collected. The demurrer was properly overruled, and the peremptory writ was properly issued.
The judgment is affirmed, with, costs.