Commonwealth v. Stoll's Admr. , 132 Ky. 234 ( 1909 )

Opinion op the Court by

Judge Nunn

Affirming on original hearing and reversing on rehearing.

The question involved on this appeal is whether certain property inherited by the parties, who are rightfully entitled to same, is subject to the inheritance tax imposed by the act of 1908. The main question is: Did the parties take from Christian Stoll, who died January 18, 1896, leaving a will, or did they inherit from Margaret Stoll, wife of testator, who died intestate?

If they take under the will of Christian Stoll, the distributees should not pay the inheritance tax, because Christian Stoll died before the law was passed. If, on the other hand, they inherit from Margaret Stoll, the various shares are to be subjected to the inheritance tax, because when she died the law was in effect. The question is controlled by the second and third provisions of the will of Christian Stoll. The provisions are as follows:

“2. Should my wife, Margaret Stoll, survive me, thien I will and devise to her absolutely whatever estate real, personal or mixed I may own at the time of my death.

“3. Should my wife die without a last will and testament disposing of any or all the estate hereby devised to her, and should she die without having disposed of by sale or otherwise of all or any portion of said estate, then I direct that the part or portion so remaining undisposed of-, shall go to my legal heirs and representatives in the proportion to which they will respectively be entitled under the laws of Kentucky, regulating descent and distribution. The provisions, of this clause are in no way to hinder or interfere with the absolute right of sale and disposition of such estate by my said wife.”

Christian Stoll died January 18, 1906, and his widow, Margaret Stoll, died after the inheritance tax law took effect. She left undisposed, of in any manner, portions of the real and personal property of her deceased husband which she received under the will. Christian Stoll and his wife had no children, and their estate passed to their collateral kindred; if they took from her, the property is subject to the inheritance tax, but if they took under the will it is not subject to the law. The position of appellant is that the devise to- Margaret Stoll was a devise in fee simple, and that the remainder over is void, and therefore the property going to the kindred' of Christian Stoll, inheriting from Margaret Stoll, who left no kindred, is subject to the inheritance tax. By Ky. St. 1903, section 2342, it is provided that: “Unless a different purpose- appear by express words or necessary inference, every estate in land created by deed or will, without words of inheritance, shall be deemed a fee-simple or such other estate as the grantor, or testator had power to dispose of.” We are of the opinion that under the will of Christian Stoll it appeared, by necessary inference, that the decedent wished to give Ms brothers and' sisters or their descendants such property as Ms wife did not consume or dispose of during her lire. The case of Anderson v. Hall, 80 Ky. 91, 3 Ky. Law Rep. 579, is in point. In that case the words were: “I. give to my wife all my property real and personal, giving her the right to sell and reinvest, as she may desire, any part of same for her own separate use and benefit; and at her death the estate undisposed of to go to my three daughters.” The court held that the will created a life estate, with power of disposal. To the same effect is the case of Coat v. L. & N. R. Co., 92 Ky. 263, 17 S. W. 564. By the will Margaret Stoll was given the estate, with power to sell or dispose of it as she saw fit; but the will expressly provides that, if she did not exercise the power of disposal, and left any of the property at her death, the same should go to- his heirs. As we construe this will, the heirs, or collateral kindred of Christian Stoll, took the property left by his widow under the will, and consequently the same is not subject to the inheritance tax.

For these reasons, the judgment of the lower court is affirmed.