209 Mo. 472 | Mo. | 1908
Judgment going in favor of defendant in a tax suit, plaintiff appealed. Defendant was sued in its individual capacity for the recovery of a personal judgment for taxes levied upon $142,760 of personal property for the year 1897. On that assessed valuation was levied $356.90 State and State interest tax, $713.80 county tax, and $499.66 school tax — aggregat
The petition was filed on the 31st of December, 1902 — one day before the taxes became uncollectible by limitation (R. S. 1899, sec. 9246). After alleging relator was collector of the revenue for the county of St. Louis, that relator in writing appointed appellant’s counsel, Mr. "Wolfsberger, with the approval of the county court, tax attorney, that defendant was a domestic corporation organized under the laws of this State relating to the incorporation of trust companies and having its place of business in the city of St. Louis, the petition proceeds to charge that T. T. Turner was a resident of the county of St. Louis- on the first day of June, 1896, and either owned or had the possession and care, charge or management of personal property situate in said county of the foregoing amount, subject to assessment and taxation for the taxes and funds mentioned ; that said property was duly listed to him at said value in his name, as appears by a tax bill filed • and marked “Exhibit A;” that said taxes were duly levied and then extended in the tax books for the year 1897; that the collector made demand,of payment and'diligently used all lawful means to collect said taxes; that notwithstanding that fact he was unable so to do; that said taxes are contained and extended in the personal delinquent tax lists for said year, allowed to the then collector in his annual settlement next after the end of that year, and which lists were delivered to and are now in the hands of relator, as a succeeding collector, for collection; that T. T. Turner died on the 30th day of January, 1897, testate; that by his will defendant was nominated .executor; that said will was duly probated on the 5th of February, 1897, and said defendant presently qualified as executor and thereafter acted as such; that as such executor it paid debts other than said taxes; that such other debts were due and owing by
Wherefore, judgment was prayed for tbe amount of said taxes, with interest thereon from tbe first day of January, 1898, at one per cent per month, together with a collector’s statutory fee of fifteen per cent on tbe full amount of tax and interest, and an attorney’s fee of ten per cent for bringing tbe suit, and for all costs.
Exhibit “A” attached to tbe petition, is as follows:
“Personal Back Tax Bill.
“Statement of Delinquent Taxes on Personal Property, assessed in tbe County of St. Louis, in tbe State of Missouri, to and in tbe name of Rehecha W. Briggs, T. T. Turner, trustee, in Central township, for tbe year 1897, being all against tbe same person, in tbe names below stated, respectively:
“In the name of Rehecha Briggs, T. T. Turner, Trustee.
“State of Missouri, County of St. Louis, ss.
“I H. W. Karrenbroch, Collector of tbe Revenue within and for said County of St. Louis, in tbe State of Missouri, do hereby certify that tbe foregoing is a true and correct statement and' bill of delinquent taxes*481 remaining unpaid on the personal property, assessed against Rehecha W. Briggs, T. T. Turner, Trustee, in said county, in the name or names as therein stated, and according to the Tax Books in my office, and the said taxes are due for the different years, to the several funds, and in the respective amounts as so above stated.
“In witness whereof, I have hereunto set my hand, this day of December 24, 1902.
“H. W. Kab.renbrock, Collector.”
It will serve no purpose to set forth the answer or reply. They may he summarized as carefully drawn pleadings, making certain charges and admissions, and were sufficient in form and substance to raise all issues presented on this appeal and to warrant the admission of all evidence introduced.
There is no dispute over the facts, summarized as follows:
Francis Whittaker died in June, 1871, testate— leaving a large estate and children — among them, Rehecha W., intermarried with one Briggs. Rehecha is the party referred to in the taxhill as “Rehecha W. Briggs.” By item 5 of his will, Mr. Whittaker bequeathed and devised to Girard B. Allen and Robert K. Woods, of St. Louis county, and to the survivor of them and their successors, trustees, with full power to sell, convey, dispose of, invest and reinvest and generally to manage the same, one-fifth of all his estate in value after paying his debts (less an advancement) in trust for Rehecha, and with directions for paying the income of the trust property as pointed out in item 5 of the will for her benefit. At her death, leaving heirs of her body, they were to pay the principal sum to them and be discharged of the trust. In default of such heirs then living, they were to pay over and convey the same to the right heirs of Francis Whittaker. Allen
At the close of the evidence, plaintiff asked a mandatory instruction in its own behalf, which instruction the court refused to give and plaintiff saved exception. Having taken time to consider, the court found the issues in favor of defendant, adjudged costs against plaintiff and ordered execution to issue. Before judg
On this record can the judgment stand?
I. If the case be treated solely on broad lines of natural justice, it would seem put beyond question that the judgment was right; because:
If Turner had lived and paid the tax assessed against the Briggs trust estate, self-evidently he would have been entitled to have reimbursed himself out of that estate then in his hands. He died after the property was assessed for taxes but before the taxes were levied. His trusteeship died with him. The defendant as executor of Turner’s will came into actual possession of a part of the fund earmarked as a trust. Such trust property did not belong to Turner’s estate, proper, and, hence, was properly left off the inventory, appraisement and settlements of his executor. Nevertheless defendant had a leg'al duty to perform in relation to the fund so earmarked and coming into its hands. What was that duty? Obviously, as a kind of bailee, to preserve the fund intact for the true owner and to turn it over when trustees to hold it were appointed by competent authority under the fifth clause of the Whittaker will. [2 Woemer’s Law of Administration (2 Ed.), sec. 321.] Obviously, too, the duty and power of executing the trust created by Francis Whittaker’s will — the very right to administer the Briggs trust estate — did not continue a duty of Turner’s estate or pass from Turner to defendant as the executor of Turner’s will, but, as said, exclusively ves
Again: Before these taxes were demandable the defendant was put in bonds and tied hand and foot by the decree of a court of competent jurisdiction — i. e., it was bound by that decree to turn over every penny of the Briggs trust estate to Ropes and Boyden. It obeyed that order. It could do no' mere and no less. By obeying, it was stripped of the fund out of which it could reimburse the Turner estate, or itself, had it paid the taxes.
Again: While, as pointed out by plaintiff’s counsel, the State may not be defeated in its right by the laches of its agents and officers, yet is it entirely without-significance that no' demand was made upon defendant for the payment of these taxes while it was yet in possession of any'of the trust property? We do not say it had the personal duty to administer on the trust property, or voluntarily pay and dole it out on trust debts or taxes chargeable against it, but we do say this: It is plain that if it could be protected at all by way of reimbursement against the payment of these taxes, it would only be under equitable doctrines and out of the trust estate.
Moreover, no demand for the taxes in suit was presented to the probate court of St. Louis county for. allowance against the Turner estate itself during the five years it was under administration. During all
In the condition of thing's shown by the premises, a question arises, seemingly answering itself by the asking, viz.:
Suppose Turner had not died and a court of equity had removed him in June, 1897, and taken the trust estate from him before the taxes were either levied, or demandable, would he remain personally liable for them? If the law be reason, would such be good law? If not, how much less will the law hold his mere executor personally responsible under similar conditions?
A further question arises, a modification of the former and suggesting its own answer, viz.:
Shall the law be so written that, on the one hand, it takes away from the executor the identical trust fund that should primarily respond to the taxes in question, and then, on the other, makes him pay them out of his private funds? If it were to be so written it would be a hard saying much murmured against. The office of executor would have perils hitherto unheard of, and, therefore, the case at bar is not one that strongly appeals to a sense of justice in a court. To the contrary, it is a case that, if Sustained at all, must be upon the strictest construction and nicest rigor of the written law alone, and that view of it .we will now examine.
H. Plaintiff relies on sundry statutes, viz.: Section 184 of the Administration Act, section 9246 relat
The questions presented are related and overlap each other, therefore they may be considered as a whole.
(a) Are taxes “debts” so as to fall under sections 4259-60, Revised Statutes 1899? Section 184 of the Administration Act relates to the classification of •demands against estates in process of administration. By its first subdivision, funeral expenses are put in the first class; by its second, expenses of the last sickness, wages of servants and demands for medicine and medical attendance during the last sickness of the deceased are put in the second class; by its third, “all debts, including taxes due the State or any county or incorporated city or town” are put in the third class. Now, it is conceded by plaintiff that taxes due by decedent may be put in judgment by suit in the circuit court (State ex rel. v. Tittman, 103 Mo. 553), or allowed against the estate (R. S. 1899, sec. 9246), but it is pointed out that by subdivision 3 of section 184 it
If we gave a controlling weight to the rule that one is known by the company he keeps, or that the thing itself is discoverable by what precedes and follows, known in the law as the doctrine of nosdtur a sodis, it would force the conclusion that in the legislative mind when enacting section 184, supra, taxes were deemed debts — the language being, “all debts, including taxes due,” etc.
But the dominant idea of that section is classification of demands against estates, not the definition of taxes or debts, and the third subdivision (unfortunately punctuated) is merely a direction that all debts due the State or any county or incorporated city or town, together with taxes due the one or the other, should be put in the third class of demands and paid accordingly. If we give a strict construction to both the language and punctuation used in the third subdivision, it would read: “All-debts are put in the third class as well as taxes due the State or a county, city or town.” But this would be unsound exposition, because debts generally are otherwise classified in other subdivisions.
Section 9246, under the title of Revenue, comes nearer to a legislative utterance defining taxes as debts than does section 184 of the Administration Act. That section says: “Said personal taxbill shall be presented and allowed against the estates of deceased or insol
This court has more than once had occasion to define the word “debt” as used in the Attachment Act and in the Constitution. The word has also been under exposition in connection with the subject of taxation. In Carondelet to use v. Picot, 38 Mo. l. c. 130, it was said: “A tax, in its essential characteristics, is not a debt, nor in the nature of a debt. A tax is an impost levied by authority of government upon its citizens or subjects, for the support of the State. It is not founded on contract or agreement. . It operates in invitum. A debt is a sum of money due by certain and express agreement. It originates in, and is founded upon, contract, express or implied. ’ ’
The foregoing definitions of “taxes” and “debts” were adopted from Peirce v. Boston, 3 Metc. 520, and Camden v. Allen, 2 Dutcher 398, and are carried forward with approval in State ex rel. v. Snyder, 139 Mo. l. c. 553, et seq.
On the other hand, courts in speaking of taxes have called them debts. It was so said in State ex rel. v. Tittmann, 119 Mo. l. c. 667. They are related to debts. [Phelps v. Brumback, 107 Mo. App. infra.] Such was the logie of Greeley v. Provident Savings Bank, 98 Mo. 458. In that case it was held that a collector of taxes could intervene in an action appointing a receiver for an insolvent hank, where such receiver had in his hands sufficient assets to pay legal taxes, and enforce such
In this condition of the statutes and case-learning, we need not decide whether a tax is technically a debt or not. It is sufficient for the case to say it has been determined that for the purpose of allowance and classification it may be treated as a debt, and it has been determined that taxes under the conditions present in Greeley v. Bank, supra, come within the purview of sections 4259 and 4260, and it is provided, section 9246, supra, they shall be allowed against the estate the same as other debts, that is, by the judgment of the proper probate court.
(b) Do sections 4259 and 4260 govern this case? Plaintiff says, yea; but we think, nay. Those sections were first enacted in the Laws of 1881, page 35. The caption of that Act may be looked to, and is: “Assignments : Priority of State’s Lien: An Act to secure to the State of Missouri a priority of lien in the case of insolvent debtors to the State.” By section 1 (now section 4259) it was provided that:
“Whenever any person indebted to the State of Missouri is insolvent, or whenever the estate of any deceased debtor in the hands of the executors or administrators is insufficient to pay all the debts due from the deceased, the debts due to the State of Missouri shall be first satisfied, and the priority hereby established shall extend as well to cases in which a debtor not having sufficient property to pay all his debts makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed or absent debt- or are attached by process of law, as to cases in which an act of bankruptcy is committed: Provided, That nothing in this act contained shall be construed to interfere with the priority of the United States as se*492 cured by law, or tbe payment of tbe expenses of the last sickness, wages of servants, demands for medicine and medical attendance during the last sickness of the deceased, nor funeral expenses.”
Section 2 (now section 4260) provides that: “Every executor, administrator, assignee or other person who pays any debt due by the person or estate for whom or for which he acts before he satisfies and pays the debts due to the State of Missouri from such person or estate, shall becom'e answerable in his own person and estate for the debts so due to the State of Missouri, or for so much thereof as may remain due and unpaid. ’ ’
It is pointed out by defendant’s counsel that the foregoing sections are substantially transcripts of very old Federal statutes, to-wit, sections 3466 and 3467 of the Revised Statutes of the United States, 1878, and were, therefore, presumably adopted by our Legislature in 1881 with the construction put upon them by Federal courts. A comparison shows defendant’s counsel is right in his contention that the Federal statutes and ours are equivalent. It is apparent on its very face that section 4259, supra, relates to insolvent debtors. Under recognized canons of construction, it must be construed with section 4260 passed at the same time. They had but one common purpose, they struck at common mischief, and before either becomes applicable there should be a case of insolvency. The steady holding of Federal courts in construing the parent Federal statutes is in accordance with this view. [U. S. v. Fisher, 2 Cranch 358; U. S. v. Griswold, 8 Fed. 496; U. S. v. Hooe, 3 Cranch 72; U. S. v. Wood, 28 Fed. Cas. No. 16755, page 753; U. S. v. Couch, 25 Fed. Cas. No. 14874, page 674; Prince v. Bartlett, 8 Cranch 431; and in many other cases cited in counsel’s brief.]
The emergency clause tacked to the Act of 1881, throws a flood of light on the legislative meaning and
“Section 4. Whereas, a doubt may be entertained by some as to the priority of the State in the case of insolvent debtors, and it is important that such question should be put at rest at once, an emergency exists within the meaning of the Constitution why this law should go into immediate operation, therefore this act shall take effect and be in force from and after its passage.”
There is no insolvency in the case at bar, and therefore those particular sections of the statutes do not apply.
III. The disposition made of the foregoing questions practically determines the case. It may be conceded that the two-year limitation provided by the Administration Act for the allowance of demands does not control the sovereign State in allowing demands for taxes. [State ex rel. v. Tittmann, 119 Mo. l. c. 666.] But it must also be conceded that where a right is created by statute and remedies are provided for enforcing that right those remedies are preclusive. [Phelps v. Brumback, 107 Mo. App. l. c. 25; State ex rel. v. Snyder, 139 Mo. l. c. 554, et seq., and cases cited.] In this case plaintiff had its remedies but it sinned away its day of grace; for even if it be admitted (by way of argument) that the Turner estate itself was liable for the taxes of the Briggs Trust Fund for 1897— which we by no means hold — yet the executor having made final settlement it seems cannot be held personally liable. [State ex rel. v. Kenrick, 159 Mo. l. c. 634.] Finally, in all the cases from Missouri courts relied upon by plaintiff’s counsel the very estate, subject to taxation, and actually taxed, was^ in the hands of the executor, administrator or. curator, as such, at the time the taxes were either assessed, levied or became due, and he had the wherewithal to pay them potentially in
It would seem that taxes, payable by the executor without allowance, were those directly levied against the property of decedent. [Langston v. Canterbury, 173 Mo. l. c. 135; State ex rel. v. Tittmann, supra.] Why should an executor be put to the hazard of personally and correctly settling the doubtful questions of law involved in paying taxes on a trust estate once held by his testator, but not held or administered by the executor? When he presents his voucher for a voluntary payment, the burden is cast upon him to show a payment demanded by law, or he fails in his credit. The law is not so unfair as to cast that hal'd duty -on him in a case like this. It seems reasonable that the State should have set its right to recover at rest in one of the ways pointed out by the statute, if it wanted to hold the estate.
We think it can be safely asserted that no case can be found in the books in which a curator, an administrator or executor was personally held liable for taxes unless the property subject to the taxes and sufficient to pay them came into his hands in his official capacity for the purpose of administration or ouratorship. Such is not the case at bar.
IV. Plaintiff says the judgment is erroneous because it assesses the costs against it. It puts its finger on a statute providing that costs shall not be so assessed. [R. S. 1899, sec. 9246, supra.] But the judgment should not be reversed on that account, for two-very good reasons, viz.: (1) the trial court’s attention was not called to it by the motion for a new trial, and (2) no motion in arrest was filed. We will modify the
As modified, the judgment is affirmed.