Nos. 20,429 — (27) | Minn. | Jun 15, 1917
This is a proceeding to review an order of the probate court, wherein an inheritance tax was imposed upon the allowance made to the widow of a deceased during the administration, upon the personal property and effects set apart to her as surviving spouse, and also upon themne-third she took under the law, she having renounced the provisions made for her in her husband’s will.
Is the one-third given the surviving spouse by statute subject to the inheritance tax? Counsel concedes the .right of the state to impose such tax thereon, but contends the present law does not reach it. This is a special tax, and relator is correct in the claim that if there be room for construction it should be construed most favorably to her. The courts construe such statutes strictly against the government. In re
The question then comes down to this: Are the statutes referred to embraced within the designation “the intestate laws of this state?” For the inheritance tax law (G. S. 1913, § 2271), imposes a tax “when the transfer is by will or by the intestate laws of this state from any person dying possessed of the property while a resident of the state.” We have no laws in terms designated “intestate laws,” but we do have statutes relating to the disposition of the property of intestates, namely, sections 7237, 7238 and 7243, G. S. 1913. The first two cover real estate and the last personal property. In those three sections are found the rights of both widow and heirs in the undisposed property of a decedent, and nowhere else. Hence there can be no doubt that these sections are the ones referred to in the inheritance tax laws as “the intestate laws of this state,” just as plainly as if they had been specified by their appropriate numbers. The word “transfer,” in the connection used, can have no restricted technical meaning. The inheritance tax laws of some states employ the expression “property passing by will or by intestate laws,” or “inheritance” laws. The meaning is the same and refers to the change in possession and ownership of property when the owner dies. It. may also be worthy of note that we must assume an intention on the part of the legislature to treat all fairly and impose the burden of the tax as equally as may be. The law exempts a stated amount to the widow. This in itself indicates an intention to tax the balance. If this exemption is to obtain only when she taires under the will of her husband it leads to what, in many instances, results in un
Some courts have attempted to overcome this objection by holding that the dower, or the widow’s statutory provision in lieu thereof, should be deducted in case of testate estates and the tax imposed only on the balance, if any. Sanford’s Estate, 91 Neb. 752" court="Neb." date_filed="1912-09-28" href="https://app.midpage.ai/document/sanford-v-saunders-county-6660341?utm_source=webapp" opinion_id="6660341">91 Neb. 752, 137 N. W. 864, 45 L.R.A. (N.S.) 236. Others, although of the same view, that (in case of intestacy) the inheritance tax does not reach the dower interest, or the interest given in lieu of dower, refuse to make any deduction when the widow takes under her husband’s will. Riemann’s Estate, 42 Misc. 648" court="N.Y. Sur. Ct." date_filed="1904-02-15" href="https://app.midpage.ai/document/in-re-the-appeal-from-the-order-fixing-determining--assessing-the-transfer-tax-on-the-estate-of-riemann-6146363?utm_source=webapp" opinion_id="6146363">42 Misc. 648, 87 N. Y. Supp. 731; Barbey’s Estate, 114 N.Y.S. 725" court="N.Y. Sur. Ct." date_filed="1908-11-11" href="https://app.midpage.ai/document/in-re-barbeys-estate-8278595?utm_source=webapp" opinion_id="8278595">114 N. Y. Supp. 725. We think a fair operation of the law requires the tax to be imposed on all the property designed to be awarded tHe widow by the final decree of distribution in the probate court, less the amount which the inheritance law itself exempts.
Counsel for relator earnestly contends that the statutory provision for the surviving spouse of one-third of the decedent’s estate is not transferred or passed by the intestate laws, but is a right acquired by the marriage relation, vesting in possession and complete title when the relation is broken by death. It is asserted that such title is not taken by inheritance as heir or by succession. It must be conceded that the decided weight of authority is with relator. Strahan’s Estate, 93 Neb. 828" court="Neb." date_filed="1913-06-16" href="https://app.midpage.ai/document/strahan-v-wayne-county-6660740?utm_source=webapp" opinion_id="6660740">93 Neb. 828, 142 N. W. 678; Weiler’s Estate, 122 N.Y.S. 608" court="N.Y. Sur. Ct." date_filed="1910-03-15" href="https://app.midpage.ai/document/in-re-weilers-estate-7342282?utm_source=webapp" opinion_id="7342282">122 N. Y. Supp. 608; Starbuck’s Estate, 137 A.D. 866" court="N.Y. App. Div." date_filed="1910-04-22" href="https://app.midpage.ai/document/in-re-the-appraisal-of-the-estate-of-starbuck-5215085?utm_source=webapp" opinion_id="5215085">137 App. Div. 866, 122 N. Y. Supp. 584; Commonwealth’s Appeal, 34 Pa. St. 204; Kohny v. Dunbar, 21 Idaho, 258" court="Idaho" date_filed="1912-01-30" href="https://app.midpage.ai/document/kohny-v-dunbar-5170084?utm_source=webapp" opinion_id="5170084">21 Idaho, 258, 121 Pac. 544, 39 L.R.A. (N.S.) 1107, Ann. Cas. 1913D, 492; Bullen’s Estate, 47 Utah, 96" court="Utah" date_filed="1915-04-22" href="https://app.midpage.ai/document/in-re-bullens-estate-8656133?utm_source=webapp" opinion_id="8656133">47 Utah, 96, 151 Pac. 533, L.R.A. 1916C, 670; Crenshaw v. Moore, 124 Tenn. 528" court="Tenn." date_filed="1911-04-15" href="https://app.midpage.ai/document/crenshaw-v-moore-8300755?utm_source=webapp" opinion_id="8300755">124 Tenn. 528, 137 S. W. 924, 34 L.R.A. (N.S.) 1161, Ann. Cas. 1913A, 165; McDaniel v. Byrkett, 120 Ark. 295" court="Ark." date_filed="1915-10-11" href="https://app.midpage.ai/document/mcdaniel-v-byrkett-7807854?utm_source=webapp" opinion_id="7807854">120 Ark. 295, 179 S. W. 491. As forceful a statement of this
“It has been held by the great weight of authority that dower is not immune because it is dower, but because it, like the right to the homestead, and to the - distributive share of the widow of the estate of her deceased husband, belonged to her inchoately during his life, and vested fully in her at his death. The widow's share of the estate of her deceased husband, by the present inheritance law, is given in lieu of dower, and it follows that the interest of the appellant in her deceased husband's estate both real and personal, comes within the test of immunity. Under the present statute the wife takes her interest in the estate of her deceased husband by operation of law. She cannot be deprived of that interest by his will. It is something which belongs to her absolutely and independently of any right of inheritance or succession. * * * The share of the realty and personalty, which under our law go to the widow independent of any will or act of the husband, is not, so to speak, a part of his estate, and is no more liable to a succession tax at his death than is her individual property derived from her own ancestors and held in her own name, though the husband may have had the management and control of the estate during his lifetime.”
The only authority supporting the state's right to impose this tax upon the widow’s statutory one-third, under laws similar to- our own, is Billings v. People, 189 Ill. 472" court="Ill." date_filed="1901-02-20" href="https://app.midpage.ai/document/billings-v-people-6969619?utm_source=webapp" opinion_id="6969619">189 Ill. 472, 59 N. E. 798, 59 L.R.A. 807" court="Ill." date_filed="1901-02-20" href="https://app.midpage.ai/document/billings-v-people-6969619?utm_source=webapp" opinion_id="6969619">59 L.R.A. 807, and adhered to in People v. Forsyth, supra. The eases from California seem to rest upon a peculiar interpretation of their statutes in respect to community property of husband and wife, holding that the wife “takes such property solely by succession as an heir of the husband.” Kennedy's Estate, 157 Cal. 517" court="Cal." date_filed="1910-04-01" href="https://app.midpage.ai/document/kennedy-v-mcdougal-3307574?utm_source=webapp" opinion_id="3307574">157 Cal. 517 (526), 108 Pac. 280, 29 L.R.A.(N.S.) 428. Notwithstanding this preponderance of authority in favor of relator, we reach the conclusion that the view taken in Billings v. People, 189 Ill. 472 (480), is the proper construction to place upon the inheritance tax law with reference to dower, or to the interest given by our statutes in lieu thereof. There, as here, the widow renounced the provisions made for her by the will, and the ingenious argument, in opposition to the right to impose the inheritance tax, was made that had she taken under the will she would have taken as a purchaser and not as a dev
We are clear that the legislature never intended to impose a tax upon the allowance for the widow and family of a decedent pending a settlement of the estate, nor upon the limited articles of personal property she is permitted to select from the estate, for no part thereof is property subject for distribution; it, in fact, is entirely Avithdrawn and excluded from the assets of the estate, as hereinbefore stated. We are equally clear that the legislature did not intend to omit the statutory interest of the surviA'ing spouse of an intestate from the tax. This interest, in many instances, amounts to large fortunes, and it is not believable that these were meant to escape the burdens laid upon others who receive
It is true, a husband cannot dispose of the one-third of the personal property of which he dies possessed by will, nor can he by will or deed dispose of the one-third of the real estate of which, at any time during coverture, he stood seized; but this is a right given by statute and may be extended, abridged, or abolished at the will of the legislature; so may the right of children to inherit, and their shares of inheritance; also the right of a person to dispose of property by will. All these statutory rights are with the legislature. When these rights come into enjoyment under existing statutes the legislature may affix á tax upon the recipients. The inheritance tax law. was no doubt designed to impose such a tax upon all, including a widow, except as to the specified exemption.
Counsel for relator in his argument stated a concrete case to prove that a widow’s statutory right in her husband’s real estate does not, in case of his death, come to her by any intestate laws, namely: If during coverture he conveyed any part of his estate, without her joining, and she survived him, such real estate so conveyed would not constitute a part of his estate, yet his widow could recover her share therein the same as if he had not conveyed and it had constituted a part of his estate. The writer hereof admits the argument, based upon the supposed ease, to be almost unanswerable in favor of relator’s contention, from a logical standpoint. From a practical view'the answer is, that the legislature intended to impose the tax only upon the property derived from the estate of which the person dies seized or possessed; that
We have not referred to the alleged interpretation given the law, since its enactment, by the authorities charged with the duty of enforcing the tax, for, aside from other considerations, we think the record presents nothing from which the court should take cognizance of such interpretation.
The cause is remanded with direction to modify the order so as to conform with the views herein expressed.