97 A. 539 | Md. | 1916
John Helser, of Franklin County, Pennsylvania, died intestate at his home in said county on the 10th of November, 1914, leaving as his only next of kin and heirs at law, one brother, a sister and a number of nephews and nieces, all of whom were non-residents of the State of Maryland, except his brother, Henry Helser, who resided in Washington County, Maryland, and a niece residing in Cumberland.
At the time of his death the decedent owned some timber land and an undivided one-half interest in a farm in Washington County; about $1700.00 deposited in the Second National Bank of Hagerstown, Maryland, and a number of promissory notes of residents of Washington County, secured by mortgages on land in that county, which notes and mortgages, amounting to about $40,000.00, were in his possession at his home in Franklin County.
Letters of administration were granted in Franklin County, Pennsylvania, to the decedent's nephew, Helser Cook, with whom he was residing at the time of his death, and about a week later, Henry Helser, the decedent's brother, applied for and obtained from the Orphans' Court of Washington County ancillary letters of administration for the purpose of collecting the money in the banks and the notes and mortgages of the residents of that county.
Shortly after receiving letters of administration, Henry Helser, through his attorney, J.O. Snyder, Esq., who had been counsel for the decedent, and who also aided Helser Cook in securing letters of administration in Franklin County, obtained an order of the Orphans' Court of Washington County authorizing him to assign or release said mortgages, and on the 24th of September, 1915, settled in said Court his first account, in which he was charged with the cash in *230 the banks and sums received on account of the mortgages and other debts due the decedent to the amount of $46,427.66, and allowed for costs of administration, commissions and debts paid, amounting to $6,814.75, leaving due the estate $39,612.93, from which was deducted, and paid to the Register of Wills of Washington County, a collateral inheritance tax of five per centum, amounting to $1,980.64, and the balance destributed to the Pennsylvania administrator.
On the 16th of November, 1915, Henry Helser, ancillary administrator, filed a petition in the Orphans' Court of Washington County alleging that the amount collected by him on the mortgages was not subject to the collateral inheritance tax, and that the same was illegally, improperly and erroneously charged in the account, and praying that the account be reopened and corrected accordingly. The Orphans' Court passed an order setting the petition down for a hearing, and requiring a copy of the same to be served on the State's Attorney for Washington County. The State's Attorney filed an answer for the State of Maryland asserting that the tax was properly allowed and payable to the State, and after a hearing the Orphans' Court passed an order dismissing the petition, and this appeal is from that order.
Section 120 of Article 81 of the Code provides that: "All estates, real, personal and mixed, money, public and private securities for money of every kind passing from any person who may die seized 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, bargainor or testator, donor or intestate, shall be subject to a tax of five per centum in every hundred dollars of the clear value of such estate, money or securities; and all executors and administrators shall only be discharged from liability for the amount of such tax, the payment of which they are charged with, by paying the same for the use of this State, as hereinafter directed." *231
The appellant contends that as the intestate was a resident of Pennsylvania, and the mortgages and mortgage notes were in his possession, in Franklin County, at the time of his death, under the rule mobilia sequuntur personam the situs of these debts followed the domicile of the creditor, and they were not taxable under the section of the Code referred to.
Even if we were to assume that, notwithstanding the express terms of the statute, the rule relied upon should be given effect in determining what property of a decedent is subject to the tax in question, there still remains an insuperable bar to the particular relief prayed in the appellant's petition. The record and evidence taken before the Orphans' Court show that all the facts relied upon by the appellant were known to him or his counsel prior to the statement of his account; that the account was prepared under the supervision of his counsel and the register of wills, was approved by his counsel and sworn to by the appellant before it was passed by the Orphans' Court, and that the amount of the tax was paid to the Register of Wills of Washington County. Under such circumstances the tax must be treated as having been voluntarily paid, and the settled rule in this State is, that, in the absence of some statutory provision authorizing it, taxes voluntarily paid under a mistake of law cannot be recovered back. Baltimore v. Lefferman, 4 Gill, 425; Morris v. Baltimore, 5 Gill, 244; Lester v.Baltimore,
But can it be said that the mortgages in question were not an estate, or property or money in this State within the meaning of the section of the Code imposing the collateral inheritance tax? The cases of Latrobe v. Baltimore,
In the case of Allen v. National State Bank, supra, where a non-resident corporation resisted payment of a tax on a mortgage on land in Maryland on the ground that the mortgage was a chosein action and was only taxable at the domicile of the mortgagee, this Court, speaking through JUDGE FOWLER, said: "Conceding, for the present, that the interest of the mortgagee is in the nature of a chose in action, the general rule that its situs for taxation is the residence of the owner, is a mere fiction of law, and `yields whenever it is necessary for the purpose of justice that the actual situs of the thing should be examined, and whenever the legislative intent is manifested that this legal fiction should not operate.'" He then quotes the statement of Mr. JUSTICE GRAY in Savings Society v. Multnomah Co.,
In the case of Blackstone v. Miller,
Of course the Supreme Court, in the two cases referred to, was dealing with the question of the power of the State to impose the tax referred to, but the reasoning of that Court, and the reasoning and decisions of this Court in Dalrymple's Case andAllen's Case lead to the conclusion that John Helser, at the time of his death, had, by virtue of the mortgages collected by the administrator, an interest or estate in lands in Washington County which was protected by the laws of this State, and that those laws having been invoked to enable the appellant to receive the amount of said mortgages the sum collected was subject to a collateral inheritance tax. This view is in accord with the decisions of the Supreme Court of Massachusetts and the Supreme Court of Michigan, construing similar statutes. Kinney v.Stevens, Treasurer,
It follows from what has been said that the order of the Orphans' Court must be affirmed.
Order affirmed, with costs to the appellee. *237