Adams v. Schwartz ( 1902 )

Whiteield, C. J.,

delivered the opinion of the court.

Nothing more is necessary to show the correctness of the judgment appealed from than to read the agreed statement of facts, which the reporter will set out in full, and sec. 3, ch. 34, laws 1894. It is expressly agreed that the appellees never owned any of the specific property which the revenue agent is attempting to have back-assessed, and that they do not now own any of it when this back assessment is attempted — any of the property of any kind owned by their father at the time of his death. It is further agreed that the two resident distributees have invested the legacies received by them under their father’s will in property which they now own, and upon which last property all taxes have been paid. True enough, if the deceased were alive he might be back-assessed. But he is dead; the property he left, not in existence to be assessed; and the effort Here is, because he might, if alive, be back-assessed for any property he owned which had escaped taxation by reason of not having been assessed, and since in such case any other property owned by the decedent might, by proper proceedings, have been subjected to the payment of the taxes assessed, that, therefore, the legatees and devisees of the said Schwartz, who have received his estate under his will, hold said property received under said will, and any other different property into which it may have been converted, subject to be taken for the taxes now sought to be assessed on property which has escaped taxation. The revenue agent claims no right to back-assess the specific property now in the heirs’ hands, but he claims that he has the right to charge this specific property, now owned by appellees, never owned by decedent, with these back taxes, just as if the decedent were alive. It is too plain for discussion that laws 1894-, ch. 34, covers no such case. If property which had escaped taxation was in the hands of one who had received it from a decedent, the act would apply, for the person having the property could be notified. It is entirely incongruous to apply this-act to this case, proceeding nunc pro tunc, as if the decedent were alive. It would be a most unique and bizarre sort of nunc pro tunc proceeding. The power of the revenue agent is doubtless very great. Some faint impression of that sort has gotten abroad. But, confessedly great as it is, here it must stop with the grave. There can be no nunc pro tunc resurrection of the dead, for the mere purpose of back taxation. It is doubtful, much as we love life, if Mr. Schwartz would consent to resurrection if the light of life was to be returned only long enough to enable the revenue agent to effectually fix him with .the back-tax machinery. Certainly the statute has not provided for an in invitum resurrection of that sort. Only property assessed is bound for taxes. The purpose of sec. 3 is to back-assess upon property, which has escaped taxation, its own taxes, not by suit to charge such taxes upon, and make them out of, other and different property. Whatever the legislature may do as to this last, it has not done it by this act. Plainly, the effort here is to obtain a decree against a dead man, and satisfy it out of property in the hands of legatees, which specific property the dead man never himself owned, but which has been bought with the proceeds of property received from the ancestor and devisor. Most manifestly the act of 1894 authorizes no such proceeding.'

Affirmed.