186 Wis. 599 | Wis. | 1925
One Robert A. Johnston, a resident of the city of Milwaukee, died testate in the year 1907, leaving his estate, valued at a considerable sum over $1,000,000, to his widow, Ellen A. Johnston. Robert A. Johnston and his wife had four children, .namely, Harry S. Johnston, Walter V. Johnston, Robert S. Johnston, and Jessie J. Fretz. In the year 1898 Ellen A. Johnston executed a last will and testament, in and by which she devised and bequeathed all of her estate to her husband. Robert A. Johnston having predeceased his wife, the estate of the latter when she died in July, 1924, descended to her heirs as intestate property.
“I, Robert S. Johnston, of the Society of Jesus, desiring and choosing to have part with Christ the Lord, poor and needy, of my own accord and freely entirely abdicate and renounce whatsoever things to me, even unaware, may have come or may have been able to come, or could in the future come, whether by right of legacy, or donation or profit. This my entire abdication I make in favor of Marquette College, in the city of Milwaukee in the state of Wisconsin. And these things I wish to be understood according to the spirit of the constitutions of the Society of Jesus, which I have already embraced as a mother and which I will cherish through all days to come.
“Given at Milwaukee, in Marquette College, on the fourteenth day of August, in the year one thousand nine hundred and nine. Robert S. Johnston, S. J.”,
(Duly attested by three witnesses.)
After the death of Ellen A. Johnston her estate was administered in said county court, and in due course of the administration proceedings an application was made for the determination of the inheritance tax. Due notice as required by the statutes was given to all parties interested, including the tax commission of the state of Wisconsin and the public administrator of Milwaukee county, acting as the representative of the state and the county in the matter of the inheritance tax proceeding. At the hearing the said public administrator attended and tacitly consented that one fourth of the estate descending to Robert S. Johnston, a son of the deceased, by reason of his abdication and renunciation in favor of Marquette College, an educational and charitable institution, be held exempt from an inheritance tax, and the court, accepting such view, made and filed a determination accordingly.
Respondent claims that the courts, in construing the in
The will of Ellen A. Johnston made no provision for the benefit of her children, she having made a will in which she devised and bequeathed all of her property to her husband. Her husband having predeceased her, her property descended as intestate property. She survived her husband a period of fifteen years, and during all this time she did not see fit to change her will or to provide for a bequest or a devise to the College. All of the property, however, belong
“Renunciation” is defined by the Century Dictionary as “A legal act by which a person abandons a right acquired, but zvithout transferring it to another.” The term “abdication” is defined as “The act of abdicating; the giving up of an office, power or authority, right or trust, etc.; renunciation.” S'o that it would appear that the terms “renunciation” and “abdication” as used in the instrument of Robert S. Johnston are synonymous. Robert S. Johmton, however, did not merely abdicate or renounce his rights to any property, but he abdicated and renounced in favor of Marquette College. So that, construing these terms as used by him, they in legal effect amount to an assignment. The College, if it derives anything under the instrument executed by Robert S. Johnston, obtains it through that portion of the instrument in which any interest coming to him from the estate of his mother is renounced and abdicated in favor of the College. The mother at no time prior to her death changed her will, nor did she give any directions, as far as the record shows, to acknowledge such renunciation so as to make the same effective.
In Matter of Wolfe, supra, where a legacy of $20,000 was bequeathed absolutely to certain executors, who after the death of the testator renounced such legacy, it was held that the legacy lawfully passed under the will to the testator’s children and their descendants, and was taxable at the rate
“That the transfer tax is not laid upon the property transferred, nor upon either the estate or the legatee. It is solely upon the transfer; that is to say, upon the change in title or ownership. If no transfer is effected, because it turns out that there is no property to transfer, no tax can be collected; and if the legatee renounce the gift and refuse to receive it, no tax can be collected with respect to him, because there has been no transfer to him. His right to renounce the privilege of accepting the donation is not denied or forbidden by the statute, and such right is recognized by the authorities, or some of them. . . . On his effective renunciation, the title to or ownership of the property or gift remains in the estate, to be disposed of under the terms of the will, and the succession is, taxable in accordance with the nature of the ultimate devolution.”
In Matter of Cook, supra, the court quotes extensively from the opinion in Matter of Wolfe and expressly affirms that decision. Differentiating between property devised and bequeathed in a will and property which descends under the intestate laws, the court in Matter of Wolfe says:
“It may well be that a different question would be presented by a transfer operating under the laws of inheritance or descent. In such a case the transfer is effected by operation of law, and calls for no act of volition on the part of the heir or next of kin.”
The doctrine involved in Matter of Wolfe with respect to a will is not before us in the instant case, and we therefore expressly reserve the question on a similar state of facts if the same should arise in this state under our own laws. However, we expressly acknowledge the force of the quotation from that opinion which refers to property descending under the intestate laws of the state.
Under the laws of descent, the property or the right to property would come or accrue to Robert S. Johnston upon
We therefore conclude that the property coming to Robert S. Johnston from the estate of his mother is subject to an inheritance’tax, as provided for by the statutes.
In 1907, shortly before the death of Robert A. Johnston, he dictated a letter to Harry S. Johnston, one of his sons, which letter was placed in an envelope, which was indorsed by him as follows: “July 5, 1907. Letter to my wife and children, to be read only in the event of my death.” Portions of the letter material herein áre as follows:
“Memoranda of wishes that are not to be considered as binding: My will was made several years ago and I have no changes to make in it.
“In case Walter marries, would like him and his family to continue to live at home with his mother, and in case of her death the home and contents should go to him. During the time, of his living at home with his mother she should pay all ordinary household expenses the same as though Walter were at home unmarried. Our home, if accepted by Walter, should be considered of equal value, and no more or less, |han the 120 feet and improvements at the corner of 22d and Grand Av. owned by our son Harry.”
In 1920, being several years'prior to Mrs. Johnston’s death, she, feeling it a burden to maintain the home, sold it and realized from such sale the sum of $30,000, and this amount she turned over to her son Walter. Upon the
Sub. (3), sec. 72.01, Stats., among other things provides:
“Every transfer by deed, grant, bargain, sale or gift, made within six years prior to the death of the grantor, vendor or donor, of a material part of his estate, or in the nature of a final disposition or distribution thereof, and without an adequate valuable consideration, shall be construed to have been made in contemplation of death within the meaning of this section.”
It is earnestly contended by counsel for the respondent that the delivery of the proceeds of the homestead to Walter was made pursuant to a moral obligation of Mrs. Johnston, by virtue of the letter above -referred to of her deceased husband. It is not claimed by the respondent that Mrs. Johnston was under any legal obligation to turn this sum of money over to Walter, nor is it claimed that Mrs. Johnston did not have the right to act in the premises in accordance with her own volition. That no legal obligation was assumed is made clear by the letter itself, wherein it is said that the wishes therein expressed “are not to be considered as binding.” Nor is it contended that the letter referred to in any way changed the will of the writer, for in it he says, “My will was made several years ago and I have nc^changes to make in it.” Therefore, the money paid to Walter cannot be deemed a part of the estate of Robert A. Johnston but a part of the property of Mrs. Johnston; and having-been paid within the six-year period provided for by' the statute, presumptively is a gift and is subject to the inheritance tax.
In Matter of Gould, 156 N. Y. 423, 51 N. E. 287, the transfer wás made in express terms to pay the legatee for services. In the opinion in that case it was said:
“It matters not what the motive of a transfer by will may * be — whether to pay a debt, discharge some moral obligation, or to benefit a relative for whom the testator entertains a strong affection — if the devise or bequest be. accepted by the beneficiary, the transfer is made by will, and the state, by the statute in question, makes a tax to impinge upon that performance.”
So that it will appear from the case just cited that the authorities are not uniform upon the subject, and it would appear to us that the doctrine announced in Matter of Gould is the sounder one. If, as in the Gould Case, a legacy given for services performed for the testator is taxable as such, then certainly the payment of the large and substantial sum of $30,000 within the six-year statutory period, in response to a mere sentiment, is taxable, and we so hold.- Furthermore, sub. (3), sec. 72.01, Stats., requires an adequate valuable consideration, and no such consideration was herein paid.
Respondents’ counsel further contend that under the decisions in Cappon v. O’Day, 165 Wis. 486, 162 N. W. 655,
While, this rule is firmly intrenched in the decisions of this court it is not applicable to the instant case, for the reason that here the public rights are affected, and in Will of Porter, 178 Wis. 556, 190 N. W. 473, it is held'that the acts or omissions o'f public officials cannot conclude the rights of the public. The question, however, was raised in the court below notwithstanding the tacit consent of the public administrator.
Respondents’ counsel also urge that before taking the appeal the appellants should have made an application for a rehearing, in accordance with sub. (11), sec. 72.15, Stats. Said section reads as follows:
“Rehearing in county court. The attorney general, tax commission, public administrator, district attorney, or any person dissatisfied with the appraisement or assessment and determination of such tax may apply for a rehearing thereof before the county court within sixty days from the fixing, assessing, and determination of the tax by the county court as herein provided' on filing a written notice which shall state the grounds of the application for a rehearing. The rehearing shall be upon the records, proceedings, and proofs had and taken on the hearings as herein provided, and a new trial shall not be had or granted unless specially ordered by the county court.”
Scrutinizing the language of the section just quoted, it becomes manifest that the application for a rehearing or a new trial is not made a condition precedent to an appeal, and that such application is entirely optional with the parties interested. Such application, however, is advisable, for in many instances it will avoid the necessity for an appeal, and it would appear in the instant case that had such an application been made to the lower court, and the position of the state and county properly presented, no appeal would have become necessary.