167 Iowa 382 | Iowa | 1914
Hannah H. Adams died in the city of Chicago on August 6, 1904, without direct issue. She left a will whereby she disposed of her entire estate to collateral heirs. At the time of her death, and for many years prior thereto, she had been a resident of the state of Florida. Her will was probated in Orange county in said state, and M. B. Hendrick and J. N. Eddy, both residents of Allamakee county, this state, were appointed executors of the will, and as such they duly qualified and administered upon the estate, making distribution thereof among the several legatees and devisees. On November 1,1909, the county attorney of Allamakee county made application to the probate court therein for the appointment of an executor or administrator in this state, and on the 9th day of that month what are called auxiliary (ancillary) letters of administration were issued to one J. M. Collins, commanding him to, among other things, take possession of all money and estate of Hannah H. Adams, deceased. On December 2, 1909, the county attorney filed in said estate an application for the taxing of a collateral inheritance tax upon certain notes and mortgages held by deceased at the time of her death. This was answered by Hendrick, executor, his coexecutor at the time being dead, and by certain legatees and devisees under the will of Hannah H. Adams. In this resistance they pleaded that deceased was, at the time of her death, a nonresident; that none of the notes and mortgages were held in this state at the time of her death, by agent or otherwise; that they were in fact in possession of decedent outside of this state. On the issues thus joined, the trial court held that certain property described in the application, which consisted of certain notes, the most of which were secured hy mortgages upon real estate in this state, was subject to a collateral inheritance tax, and the same were ordered appraised by the collateral inheritance tax appraisers. The respondents to the application appeal.
The property in question consisting of notes, nearly all of which are secured by mortgages upon real estate in this state, passed by the will of testatrix to collateral heirs, and, if it had
My name is M. B. Hendrick. The securities listed in Exhibit 1 were given to me by the Waukon State Bank on August 3, 1904. Q. How.did you come to go to the bank and get these securities ? A. I was ordered to do so by Mrs. Adams.
The fair inference from this testimony is that Mrs. Adams, who was temporarily in Chicago, and was very sick, directed
We borrowed our statute from the state of New York, and the interpretations thereof by the courts of that state are quite conclusive here. For this reason the New York cases already cited, and In re Whiting, 150 N. Y. 27, (44 N. E. 715, 34 L. R. A. 232, 55 Am. St. Rep. 640), are quite in point.
In Bristol v. Washington County, 177 U. S. 133, (20 Sup. Ct. 585, 44 L. Ed. 701), supra, the Supreme Court of the United States approved the following decision from a lower court:
‘For many purposes the domicile of the owner is deemed the situs of his personal property. This, however, is only a fiction, from motives of convenience, and is not of universal
See, also, New Orleans v. Stempel, 175 U. S. 309, (20 S. C. 110, 44 L. Ed. 174); Metropolitan Co. v. New Orleans, 205 U. S. 395, (27 Sup. Ct. 499, 51 L. Ed. 853); Blackstone v. Miller, 188 U. S. 189, (23 Sup. Ct. 277, 47 L. Ed. 439); U. S. v. Perkins, 163 U. S. 625, (16 Sup. Ct. 1073, 41 L. Ed. 287); Savings & Loan Soc. v. Multnomah Co., 169 U. S. 421, (18 Sup. Ct. 392, 42 L. Ed. 803); Adams v. Batchelder, 173 Mass. 258, (53 N. E. 824, 73 Am. St. Rep. 282).
The plaintiff has the money in question under his control and management, and loaned the same for pecuniary profit, and is therefore clearly within the letter and spirit of the statute; and counsel do not claim otherwise. Their contention is that the statute should not be so construed, for the reason, as we understand, that, whatever may be the rule as to tangible personal property, the situs of moneys and credits is where the owner resides; and, as the owners reside in England, such property cannot be taxed here, for the reason that it must be deemed to be in England. It is undoubtedly true that for some purposes, to prevent injustice, a legal fiction has been adopted in relation to the situs of personal property. But this fiction cannot be permitted to prevail in view of the facts of this ease. Nor are we aware of any difference between different species of personal property. The fiction, when allowed to prevail at all, applies alike to all personal property. The property taxed is in the possession and under the control of the plaintiff. It in fact is in this state, within the meaning and intent of the statute; and can the courts, by the invocation of a fiction, defeat the plain meaning and intent of the General Assembly? We think not, for it is the undoubted province of the General Assembly to determine what property actually within the state is taxable, and unless the courts can say that the law is unconstitutional, or possibly that it conflicts with some fundamental law that is universally recognized, they are not only powerless, but it is their clear and undoubted duty to enforce the statute. This question was considered in this court in Hunter v. Board of Supervisors, 33 Iowa, 376, and has been expressly determined in other states, under similar statutes, in accord with the views above expressed. People v. Home Ins. Co., 29 Cal. 533; Board of Supervisors v. Davenport, 40 Ill. 197; Redmond v. Commissioners, 87 N. C. 122. We base our conclusion on the fact that, not only is the money loaned and invested in this state, but it is under the exclusive control of the plaintiff, and therefore its situs is here, and not in England, where the owner resides. Some question is made as to the amount of the assessment, but, if assessable here at all, we are clearly of the opinion, for several reasons, that the amount is not greater than it should be. At- some time prior to 1882 the plaintiff voluntarily executed his note to
The case is quite analogous to the one now before us; the removal of the notes here being the equivalent of the making of the fictitious note in that case. It was a removal in form only, and there is no showing that the agent, Hendrick, parted with any control over the property. Moreover, it is provided in section 1467-e of the Code Supplement that:
Whenever any property, real or personal, within this state belongs to a foreign estate, and said foreign estate passes in part exempt from the collateral inheritance tax, and in part subject to said collateral inheritance tax, and it is within the authority or discretion of the foreign executor, administrator, or trustee administering the estate to dispose of the property, not specifically devised to direct heirs or devisees in the payment of the d'ebts owing by decedent at the time of his death, or in the satisfaction of legacies, devises, or trusts given to direct and collateral legatees or devisees, or in payment of the distributive shares of any direct and collateral heirs, then the property within the jurisdiction of this state, belonging to such foreign estate, shall be subject to the collateral inheritance tax imposed by chapter four (4) of title seven (7) of the Code, and the tax due thereon shall be assessed as provided in the next preceding section of this act, and with the same proviso respecting the deduc
And section 1477-c reads in this wise:
No safe deposit company, trust company, bank or other institution, person or persons holding securities or assets of the decedent shall deliver or transfer the same to the executor or administrator or legal representative of said decedent unless notice of the time and place of such intended transfer be served upon the state treasurer at least five days prior to the transfer thereof, or unless the tax for which such securities or assets are liable under chapter four (4), title seven (7) of the Code shall be first paid. It shall be lawful for, and the duty, 'of the treasurer of state to personally, or by any person by him duly authorized, to examine such securities or assets at the. time of such delivery or transfer. Failure to serve such notice upon the treasurer of state or to allow such examination on the delivery of such securities or assets to such executor, administrator or legal representative before said tax is paid shall render such safe deposit company, trust company, bank or other institution, person or persons liable for the payment of the taxes due upon such securities or assets as provided in said chapter four (4).
These, to our minds, indicate that the property was taxable here.
As already suggested, if Mrs. Adams had been a resident of this state and had herself made the deposit of the notes in the Prairie du Chien bank, there could be no question of the right to impose a collateral inheritance tax upon the property. The property was in the hands of her agent, who did the same thing, and, but for the removal, all agree that the property was subject to the collateral inheritance tax. Should his removal of the property to the Wisconsin bank be given more force than if Mrs. Adams had removed it ? So far as shown, Hendrick retained the same control over the securities after the deposit as before; the business was left in his hands; and the notes and mortgages were, so far as shown, subject to recall for business use at any time. We are of the opinion that
The judgment must therefore be, and it is — Affirmed.