*1 McCONIHE, OF COMPTROLLER al. et TREASURY, THE et al. 180, September Term,

[No. 1966.] *2 April Decided HornEy, Hammond, J., before C. argued

The cause was McWieeiams, Marbury, Barnes JJ. on the Nordlinger Huddle, King were & with whom

David brief, for appellants. General, with whom Garland, Attorney Assistant

Thomas A. brief, General, Finan, Attorney Thomas B. appellees. *3 the Court. the majority opinion

Marbury, delivered J., 279, at Dissenting opinion p. dissents. Barnes, J., infra. Court for of the order an Circuit

This is an from appeal in the presiding, Anderson County, Judge Montgomery a Court of the Tax the upholding affirmed as- administration for twenty-five delayed cent per penalty Montgomery County. for the wills register sessed McConihe, Malcolm follows: The facts S. undisputed 1, 1961, Columbia, on died Sr., July a of the District resident death, he At the time of his a last will and testament. leaving in Mont- real property and of valuable possessed was seized 1961, 3, let- or about August On County, Maryland. gomery appellants, granted ters on his estate were testamentary McConihe, McConihe, and F. Moran Malcolm S. Jr. Thereafter, in order to title to the clear District of Columbia. in letters County, real estate located Montgomery ancillary the on the estate were granted appellants by testamentary 15, County on November Orphans’ Montgomery Court the real No was property Montgomery County inventory Court of filed Orphans’ Montgomery County with 1962, 5, death. after decedent’s On July appraisers ninety days Court of Orphans’ re- appointed by Montgomery County estate located an of the decedent’s real inventory turned court, real to an order of county. Pursuant on the based re- estate reappraised, was 1963, the 26, on 1962. In was returned October appraisal June the in- for County computed Montgomery wills register $7,926.38, heritance on the real estate at and pursuant 170, 81, twenty-five Code Article assessed a (1957), Section for in the amount of cent delayed per 8, 1963, $1,981.59. the tax on paid Appellants July 10, on register September and filed a claim with 1963,for a refund amount penalty.

This for refund an claim rejected appeal Court Maryland Tax That an order was filed. court entered the action of for affirming of wills Montgomery County and claim a refund. denying appellants In Court, the decision of the Tax the Circuit affirming Court held that 170 of Article 81 to be construed of other on light sections bearing subject same related matter when administration or was filed decedent, within a day period from death ninety real estate which tax was passed subject inheritance twenty-five cent per assessable penalty, against the person or who became liable for persons of such tax. applicable statutes involved are Code (1957), Article and 170.1 Sections 167 authorized the

orphans’ court where said real estate county was lo- cated to issue summonses for parties entitled to administration who failed to administer within after the ninety days death decedent, and to appoint appraisers application *4 one in real interested estate where no administration had been taken. provided 169 the Section for of an with- filing inventory in ninety the of days after death and person imposed the upon duty person such receiving an interest or in estate to an property file where there inventory was no formal ad- amended, 1. was Section 170 1965, of 790, Laws Ch. payment so as to remove for the of an additional sum equal to of the tax due.

275 Upon court. any to the ministration subject least to at had orphans’ appoint court of an inventory for the pur- in the property question to value two appraisers due, was which and the amount of tax pose ascertaining to the register once payable so determined became tax at sub- 170, property passed any whenever wills. Under Section no adminis- tax formal to the inheritance and there was ject 169, no required tration was filed as inventory and Section for the appointment had the to apply the register for the real any property least two value appraisers at of tax payable amount due and purpose determining liable addition, the at to the In persons once wills. liable for the for the payment payment were also as an additional of the tax sum cent equal twenty-five per administration. delaying legislature, In the intention of the all parts ascertaining are to read the intention as to statute be to find together if one and all are to be reconciled and harmonized part, parts Industries, 77, v. Atlas possible. Comptroller Md. See 234 198 A. 2d 86. Tax statutes should be construed favor and citizen the state where there is doubt to their against as v. Comptroller, 157, Fair Md. 210 2d scope, 239 A. Lanes 821; Comptroller Inc., Rockhill 205 Md. A. v. 2d their provisions must be cases not plainly extended Comptroller, within the of the statute. Pair Lanes However, supra. these rules do not statute require a tax construed so imposing defeat the intention clear Diamond Match purpose legislature. Co. v. Tax Comm., Atl. Md.

Each the statute section of dealt the enforce- involved with ment of assets report taxable requiring of inheritance tax thereon. 167 controlled the situation no was administration. where controlled Section 169 no where there was filed orphans’ court in the real estate was county located. Where there no formal administration an estate juris- diction of of this filed, state twenty-five under per cent penalty had *5 276 the three sections where there was

imposed. Reading together, within days no administration taken the death of ninety after the decedent subject which was of any state where this no was filed appropriate death, court within after orphans’ ninety decedent’s days for the persons liable inheritance tax were liable the penalty Cadwalader, Exec., v. 227 imposed by Section See State 786, 170, A. Md. 174 2d where was said: “Section supra, where is covers situations filed no formal administration of an estate occurs.” 167, 169,

With two exceptions, this construction Sections 170, and their has the one been predecessors through- observed out a series of of the opinions General. Attorney Though Court, binding opinions these to careful entitled consideration as serve those they important guides charged Exec., Cadwalader, with administration of law. State supra.

In Opinions 49 of the General there is Attorney (1964) 439 a review of the imposition twenty-five cent per on a recipient to inheritance property subject pro- tax as for Article vided 170. Preliminarily, the opinion Section points out that the imposition provided for is 170 wholly dependent upon nonperformance the duties imposed Whether duties by Section 169. have been performed must be determined within after days ninety the death of the decedent. Once Maryland administration has been opened death, ninety days recipient of without the property passing necessity administration is not touched requirement 169. The opinion takes the view that short of a administration

“nothing of the estate decedent’s will days within 90 render Section Thus, inoperative. 169 foreign of part estate, not, our decedent’s opinion, suffi- to excuse cient reporting required by Section 169 the foreign personal representative since is not the reporting requirements of Sections 155 and 81, supra. Article Opinions the Attorney Gen- Gen- Opinions Attorney (1947); eral 431 estate Likewise, existence of an eral 205 (1945). *6 re- not to administration does of the decedent subject his to of taxable recipient property lieve if a formal administration report under 169 Section 90 of death. days not been has instituted Later not retro- formal administration will opening a a actively cure default under 169. 36 Opinions Section General 316 Attorney (1951).” also stated that no sanctions opinion pro- monetary who fails personal representative vided law a by against administer short the risk that promptly, orphans’ court over the estate after having decedent’s jurisdiction may, notice, relieve him of the estate. privilege administering

We do not find two to the other- persuasive exceptions two, wise consistent In construction. the earliest of the 25 O.A.G. 638 it (1940), was held that where penalty due 1931, decedent died testate but no administration was taken out until 1940 when executor named in the will ap- plied for letters. explanation Without the opinion states:

“We do not think that is due. any penalty 134 170 Code (1957)] of Article 81 provides [§ a penalty twenty-five cent of the per amount of tax, section, but that when read in con- particularly junction with section 133 Code 169 (1957)] [§ refers, does not clearly estates ad- apply ministered in the Orphans’ Court.” latest, In the 40 O.A.G. 542 (1955), where a surviving joint tenant failed to the interest to her virtue “passing” death, of the first tenant’s joint which occurred four be- years tenant, fore the death of the joint the heirs surviving the deceased tenant failed to file surviving joint an inventory property, applicable held to both penalty events. However, 638, 25 O.A.G. citing only mention- authority no time administration, limit for ing the opinion states that if administered, estate was under formally the terms of the statute, no These was due. two opinions are against

278

the construction of the sections here has been involved which followed a number attorneys general and which most reasonable.

Appellants contended was not applicable as there “formal was a administration jurisdic- * * tion of *”—that court in the District being O.A.G., Columbia. As pointed supra, out in 40 a ad- foreign ministration of of the decedent’s estate is not part sufficient excuse For the reporting required by purposes these sections there is no “formal administration subject court” when has fact been granted court of this state. 36 O.A.G. by any 32 (1951); 242- (1947); O.A.G. O.A.G. Also, (1943). later of a formal administration opening Maryland would not cure default under retroactively Sec- tion 439; 169. 49 O.A.G. 36 O.A.G. 316.

Appellants also that unless the of argued register wills ap- plies for the of appointment the of appraisers prior filing a petition for administration, the tax can not be assessed. Exec., As stated in Cadwalader, supra, the of register wills is not to required himself of death keep apprised every his without not be jurisdiction. Therefore would to for necessary appraisers until he apply after became aware of a death which might cause inheritance taxes the and penalty for late administration to become due of and the fact that there nowas formal administration no had been filed. and occurs, Once this

“it shall be and become the register of * * * wills to the appointment at least apply for * * *, two to appraisers value such estate for the * * *, purpose the due amount of tax determining in addition thereto the liable for the persons pay- ment of said tax shall be and liable by way become of a for of an additional sum penalty equal of the amount of tax so determined to * * be due A” (Emphasis added.) In this case the register wills did not for the ap- apply pointment but appraisers, appraisers appointed were at for petition appellants by instigation no argued penalty The appellants administration. ancillary effected no assessed, appraisal because was could legally im- was penalty wills. Under register and no inventory no administration posed because was decedent. death was filed within after ninety days automatically occurred the penalty Once the two conditions 170 established due. The part became secondary amount of the determined. penalty procedure whereby for the penalty liable the tax and appellants became decedent, late administration the death after ninety days lia- of that what was left was determine amount bility. Appellants made were argument they prejudiced for appraisers, failure of register apply nor did that the of the estate complain upon value they the tax They were based was determined. penalty unfairly can not contend that because the failed now of wills the amount comply with a procedural step determining due, of tax the determi- but which failure not did prejudice nation, the not conclude that the can assessed. We below was correct that the prop- holding erly assessed. Appellants

Order affirmed. the costs. pay dissenting: Barnes, J. because,

I dissent my opinion, (1) Sec- 167, 168, tions 170 of Article 81 of the Code (1957) when construed does indicate together legis- *8 lative intent that the under the facts in applicable and, event, the present case in is at least (2) any ambiguous in of the should resolved favor ambiguity taxpayer.

(1) 167 outlines the when there been procedure has no administration within the date days of death of died, or person who seized possessed of property subject the Maryland inheritance tax. After the “the day period court of the in which

orphans’ such administration county issue should be shall a summons for the en- granted” parties to administration to do not titled show cause ad- why they however, If, minister. real estate the in- passes subject administration, heritance there has been no then “the orphans’ court county” where real estate is located “on the interested” in the real estate application one any in- appoint appraisers value of the may amount heritance tax be paid of wills of the may county where the application made. that if the entitled to administer provides parties

do not this in a reasonable do time fixed “said court” (i.e. if orphans’ or or refuse ad- court) incapable they minister, to such “administration shall be as granted person the court orphans’ deem may proper.” (Emphasis [the court] supplied). imposes duties trustees or other upon persons

Section 169 is no making distribution where there formal administration. provides, It part, relevant as follows:

“In estates all cases where or interest therein any there is pass, and formal court, the jurisdiction it shall duty trustee other person or distribution of every making to the inheritance tax any property passing subject subtitle, to imposed orphans’ file court of the or where the decedent had his or county city death, her residence his or at time of her inor estate, orphans’ the case of real of the situated, which the real estate is county city days within after the death of such ninety (90) per- son, a full and complete inventory property * * *; to the inheritance tax and in passing subject * * * all such cases where any property passes there is no trustee or other to make distribu- person thereof, tion it shall be the of re- person estate or ceiving therein, such interest to file the the time and in the manner herein- above Upon provided. inventory *9 section, shall ap- court orphans’ required by to value property at least two point appraisers de- purpose in for the such any listed here- due payable the amount termining to be due shall be- ; and tax so ascertained under wills, for the once payable at to the register come to institute he authorized of which is nonpayment in on of Maryland suit for and behalf of State sup- court of competent (Emphasis any jurisdiction.” plied). on imposes is to duty

It be observed when or other to file the person inventory only trustee is “no there formal and, in not The “of this added court.” words State” left out General opinion, were inadvertently my mean, what enough, The words Assembly. curiously exactly a formal administration court”. If were they say—-“any in a Maryland, of decedent’s estate court outside of would of the the decedent representative ap- personal the tax and that court to ñle the pointed pay in Mary- obtain or of the title decedent’s possession property Indeed, land. title to the decedent’s vests personal property title representative such a because to personal prop- personal Title in his exec- follows the of the owner. vests person erty utor or having administrator when court appointed by any juris- diction, or not. Maryland per- whether that court is Such Has sonal of the whenever representative appointed decedent incident to the duties perform primary responsibility de- for the collection and distribution necessary and the debts. cedent’s assets decedent’s that the words apparent last makes it portion Section 169 court” are not restricted to court “any “any State of be- as the authorized sue Maryland”, register wills inheritance tax for the unpaid half of the It “in can hardly competent jurisdiction.” the formal administration of the decedent’s if thought example, Pennsylvania, estate County, occurred York executor nonpaying could not sue register administrator in the courts York County, Pennsylvania. *10 short, is In clear that the General appreciated the Assembly difference between the courts of this and courts of other State states, as it referred both to the specifically courts orphans’ which are this courts of court” or “any State court “any of competent The jurisdiction.” General said what Assembly it meant and meant to include courts jurisdictions of other than those of the of It should Maryland. also observed that the of the within the period 90 is inventory day only imposed the trustee and other there persons where has been “no administration to the subject jurisdiction any of court.” does not 169 purport impose Section 90 re- day quirement upon executor or administrator appointed pur- suant to a “formal administration to the subject jurisdiction of any court.”

The same pattern of is used important vitally 170 imposes involved present case. provides, in relevant as part, follows:

“Whenever shall to the any property pass subject subtitle, inheritance tax this is imposed by of such estate subject formal jurisdiction court, and is as any no inventory filed of required it shall be and become the of § of or register wills which the county city filed, should inventory have been under the provisions of for the apply appointment of at least two § appraisers value such estate that come may attention, to his for the purpose determining amount of hereunder, tax due and payable tax so ascertained to be due shall become at payable once Wills, to the Register of and in addition thereto person persons liable for the of said tax shall be and become liable by way the payment of additional an sum equal 25% amount tax so determined to be due and for the non-payment said tax or the penalty, the Register is Wills authorized to cause suit to be instituted in the name of the At- through State of competent jurisdiction.” in any General torney supplied).1 (Emphasis exist it, conditions must three I interpret as

By Section amount before the severe penalty very These are: may imposed. the estate no formal administration

1. There is court and §169, No filed required by 2. wills. is filed language plainly

I because statutory reach conclusion Court, Collins, aptly As for the Judge states these conditions. State, 101, 105, 110 said in Fowel Md. A. 2d (1955): *11 plain the is and statutory language “Where free so definite sensi- ambiguity expresses and a and

from is presumed ble that meaning meaning, conclusively the which the Legislature to be intended. meaning at The courts are not to surmise the legislative liberty Assembly pointed majority opinion, 1. As out in the the General by Chapter J9G5, 1, 1965, repealed of 790 of the Acts effective June penalty. entirely provision the amendment the for The is instruc- quoted by filing 170 continues as above down to tive. the inventory. register pro- the the wills of amendment then of immediately register of that “he send a wills] vides shall bill [the payment person persons to for the for the or liable the thereof days paid payment not the of said fax. If the tax is within 30 from billing, person persons payment date the liable the of of said or for the tax become liable for the an ad- said shall and equal per billing ditional sum to the date of such annum from 6% tax; nonpayment reg- interest, on such for of said lax and the and ister of is authorized to cause to be in the wills suit instituted Maryland Attorney through name of the the General any competent jurisdiction.” court of begins days significant only It to after is that interest run 30 by register the determination has been made the wills register the for the amended act the is to sue of wills authorized any jurisdiction.” competent Tl is clear and interest “in court of act, register is in the amended the action of the precedent beginning running to for inter- condition the date the per est at annum. intention to be contrary to the words and letters of to statute or insert or delete words awith view making statute an express intention is different its from meaning.” plain (Emphasis sup- . plied) respect,

With to appears me that in the ma- has added these jority “in this words after the words State” court”, “any has changed the “and” word to “or” after words to “subject court”, con- jurisdiction has strued the “no words filed is required by Section 169” to an executor apply appointed formal administra- tion iswho to file the required inventory pursuant Sec- tion overlooked has the requirement statutory penalty “becomes” after only payable action of the of wills. To me this a de- represents parture statutes, from rule primary interpretation i.e., that intent legislative is discovered from words used by legislature statute. these When words are clear, the search the legislative intent is ended.

The construction of the statute which I is a proper think sensible one. is a When there formal administration court, whether in or outside it, is a there person it is duly appointed whose is, whose interest it to file an pay Maryland inheritance tax. When there is such a formal administration then no need for action by trustees or others time register wills. No limit placed upon inventories executor or administrator in the formal *12 167, 168, or by 170. The Sections Gen- eral thought the ad- Assembly ordinary processes of ministration of estates the would insure sufficiently of the inheritance tax. there When was formal administra- tion, or the trustee other file persons was then to required the inventories within the 90 here, but even the period, day severe not to was be the penalty imposed unless register 25% matter, the in appointed wills acted filed in- appraisers, the the This ventory procedure determined tax. would mean other persons trustees to required inventories file if no formal administra- period were day in tions, if could escape imposition penalty they filed fact wills acted. inventory register before This as the pay- construction is no means unreasonable by is ment of the the inventory inheritance tax is when assured filed filed. trustee or others it was by regardless when It was if the in or others oc- the trustees only delay by curred after the 90 period after the wills register day acted, that the the register was The action penalty imposed. by would delay wills most after a occur likely only protracted as the suggests, likely, most majority was penalty least, part at punish the to the person subject penalty the increased work in the unusual and construction, extraordinary situation. Under this executor of the decedent’s estate case not be sub- present would to the ject because not one of the three conditions precedent to its imposition is He as present. appointed result of a formal administration in a court of competent juris- diction and executor; duly qualified not he was required an file 169; pursuant and, not filed register of wills. he Accordingly, was penalty.

(2) if it thought Even that the language of the four sections is not clear and unambiguous the three imposing conditions mentioned for the imposition of the the best that can penalty, be said for the contention of it, the Comptroller, as I see is that the is ambiguous. absence Surely State,” “in words the words court” can mean “any courts of competent jurisdiction outside of Maryland. use of the word “and” can import as conditions precedent the imposition of the penalty, requirement that there be no formal administration as aswell a failure to file as required by Section 169. The words “and shall become liable” mean can that the for the liability comes into only existence upon the action of the register of wills.

If the language thought ambiguous, is clear under decisions this Court that it must be construed in favor

286 Fair v. sufferer of the penalty. and taxpayer See Lanes 157, Comp- 210 A. 2d and

Comptroller, (1965) Md. 821 239 Rockhill, Inc., 226, A. 2d 205 Md. 107 v. M. E. 93 troller ority opinion. cited (1954), maj however, are, of construction additional rules There several in the present aid the executor case. which that in the other states It is settled well in favor to be construed strictly statutes imposing penalty a Corpo Discount Bethesda the citizen and Fisher v. taxpayer. 271, Corpo ration, Utility 221 157 A. 265 (1960). Md. 2d See Maxwell, Bachus 1966) ; App., ration v. 643 189 2d (Fla. So. ; 1, Swanson, v. 179 Neb. 136 N. W. 2d (1965) 189 Salvation State, 415, 2d 463 (1964). v. 144 Mont. 396 P. Army ambigu- in this that there is It is when also established statute, a ous the courts construction prefer a will to in- reasonable rather than one leading which will be fair and Burkhardt, 539, v. Md. Kolb 148 justice oppressive results. State, 251, 225 Md. 170 Height Atl. (1925). See A. 2d 212 (1961). case, situation the instant indicate me where

The facts in oppressive it is most unreasonable indeed unjust decedent, on the a resident executor. The impose 1, Columbia, died in the District of on July 1961, a court probated a will which was leaving duly by 3, on executor August competent jurisdiction The decedent real estate Montgomery owned duly qualified. estate, executor, clear the title to that real County 15, 1961, on granted ancillary November for and was applied letters of administration Orphans’ Montgomery Court by At the County. suggestion executor—and register of These appraisers appointed. ap- wills—two were returned the on praisers 1962. On October July 26, 1962, on there was a and an reappraisal inventory based value It not until reappraised was returned. was June assessed, that the inheritance tax and the September on paid executor and claim for filed. refund facts

It clear from these inheritance tax *14 never in the slightest jeop- non-resident owned aby land on the can be an land and The tax is encumbrance ardy. too, the to the tax. Then except subject no transfer of title ob- executor, a competent of by jurisdiction, appointed caused the in- letters of and tained ancillary filed, the later re- this (or and upon ventory To im- paid. the inheritance tax was calculated and appraisal) $1,981.59 $7,926.38 on a tax of under a pose penalty oppressive be harsh seems to me to and these circumstances the statute can is if the to be and result avoided to me that it It is clear to do this. interpreted reasonably in Indeed, this case the executor foreign be so interpreted. can have might done done that a executor had “domestic” nothing and paid whatever. penalty opinions

In the on reliance certain my majority’s opinion, the on our decision in v. Cad- general and attorney 21, walader, misplaced. is In- (1961) 227 Md. 174 A. 2d 786 deed, to the Court’s deci- they support contrary tend a view in attorney general, sion this case. The earliest the opinion general, O.A.G. (1940), distinguished 638 attorney by Court, and an in formerly a member of this 40 O.A.G. opinion inconsistent the other four (1955) opinions with 1964, in and rendered attorney general mentioned It seem that majority would opinion. one opinion earliest nearest attorney general being and official enactment of the its first con- legislation struction well might be more by attorney general likely than later reflect the con- intention General Assembly event, opinions. In trary attorney when divide generals is the correct interpretation statutory language, diffi- cult to is not at least ambiguous. believe that the language

Moreover, than Cadwalader rather decision supporting an interpretation accord with majority, action the register requires by before become due and owing. We held Cad- walader, the lower court’s reversing four ruling statute limitation had barred year claim in- State’s tax, heritance that the the tax action for under Sec- tion 170 did accrue until appraisal wills, the register so by the four statute year fled limitation was not a bar action State instituted four from such years and determination of wills.

I would reverse the order of Circuit Court require appellee pay costs. ux. et

FREED, CLOVERLEA CITIZENS

ASSOCIATION, INC. *15 196, September Term, [No. 1966.]