76 N.J.L. 655 | N.J. | 1908
The opinion of the court was delivered by
In a case like this the temptation is strong to pass an opinion upon the fundamental and important questions which were exhaustively discussed at the bar, and in the able opinion of the Supreme Court. We prefer, however, to confine our discussion to the exact point presented by the case, which, we think, is the much narrower one of the proper interpretation of the statute. For that purpose we assume that shares of stock in a New Jersey corporation
An examination of the act shows that it imposes a tax (1) upon all property which passes by will or the intestate laws of this state from any person who may die seized or possessed of the same while being a resident of the state; (2) upon all property which shall be within this state which shall be transferred by inheritance, distribution, bequest, devise, deed, grant, sale or gift, made or intended to take effect in possession or enjoyment after the death of the intestate, testator, grantor or bargainor. The first class obviously affects the succession of residents of this state only. If the present tax is to be sustained, it must be because the succession sought to be taxed comes within the second class.
Our act was modeled after the New York act of 1885, and, if we had made no change in that act, we should be held upon well settled principles to have adopted with the act the construction previously placed thereon by the New York courts in the case of Enston’s Estate, 113 N. Y. 174. In fact, however, we modified the language of the New York act by inserting at the beginning of the clause the words “all property” in place of the mere relative “which” and by adding the words “inheritance, distribution, bequest, devise.” We are not therefore concluded by that decision.
It is clear that the legislature did not intend to tax all successions of non-residents. If it had meant that, it would have taxed all property within this state which should be transferred from a decedent by will or intestacy. (We disregard as quite inapplicable to the present case, transfers by deed, grant, sale ojr gift intended to take effect after death.) Instead of using the general language, which was naturally suggested by the use of the words “by will or by the intestate laws of this state,” employed in the previous clause, the act
This succession is a succession under English law, by which the validity and amount of the bequest must be determined. Jenkins v. Guarantee Trust and Safe Deposit Co., 8 Dick. 194. By that law, as well as by our own, the title to a legacy is not complete and perfect until the executor has assented (2 Wms. Ex. 1372, 1373), and he ought-nett to assent until creditors are satisfied. This assent must of necessity be
In short our statute imposes a legacy duty and not a transfer or succession tax. The view we take is the same that finally prevailed in the English courts. Thompson v. Advocate-General, 12 Cl. &. F. 1.
We reach the same result if we disregard the technical force of the words “inheritance, distribution, bequest and devise,” and look at the tax as a succession tax. It is conceded, as it must be in view of our constitutional provision, that the tax cannot be sustained as a property tax.
The ground upon which this extraordinary-exaction, and the exemption of small estates, and the taxation by some
The claim of the state is not helped by section 11 of the act (Gen. Stat., p. 3342, pi. 273). -That applies only to the case of stock which' is liable to the tax, and is intended to afford a means of collection of a tax imposed by other sections, not to impose a tax.
The judgment must be reversed.
For affirmance—The Chancellor, Bergen, Green, J.J. 3.
For reversal—Ti-ie Chiee Justice, Swayze, Trenci-iard, Voori-iees, Minturn, Bogert, Vredenburgi-i, Vroom, Gray, Dill, J.J. 10.