Blackburn v. State , 51 Mont. 234 ( 1915 )

MR. JUSTICE SANNER

delivered the opinion of the court.

This appeal is from orders of the district court of Silver Bow county fixing the clear value of the estate of Gideon E. Blackburn, deceased, at $9,960.30, and requiring the administrator to pay as inheritance tax thereon the sum of $99.60. It is established by the record and conceded that under a previous order duly made the family allowance paid and due the widow of said deceased amounts to $3,375; that this sum was not deducted from, but was included in, the value of the estate as fixed by the orders; and that, if deducted, the clear value of the estate would fall below $7,500. The contention is that the amounts paid and due the widow for family allowance should have been deducted from the value of the estate as found, and that, as Dr. Blackburn died intestate, and as his heirs consist of his widow and children, the estate is not subject to any inheritance tax.

We think this contention must be sustained. The only [1] property of the deceased which it is claimed could be subject to the inheritance tax is that which “shall pass by the inheritance laws of this state”; but the effect of the orders is to tax the amounts paid and due the widow for her family allowance. Moneys paid out of an estate for family allowance do not pass by the inheritance laws of this state; they are charges against the estate created by special statutes in the interest of public policy. (Rev. Codes, secs. 7508, 7510, 7511; Dougherty’s Estate, 34 Mont. 336, 86 Pac. 38; Wilson v. Wilson, 55 Colo. 70, 132 Pac. 67; Cremhaw v. Moore, 124 Tenn. 528, Ann. Cas. 1913A, 165, 34 L. R. A. (n. s.) 1161, 137 S. W. 924.

Again, the inheritance tax is not an imposition upon the estates of decedents; it is “a duty imposed by the state upon the right to receive property by testamentary disposition or succession, or by any deed or instrument to take effect at or after death.” (State ex rel. Gilmore v. District Court, 45 Mont. 335, Ann. Cas. 1914A, 469, 122 Pac. 922.) Being such, it of course is not designed to apply to property which is not received in one of these ways. Seldom do the heirs of a decedent receive all of his estate, because it is chargeable with the payment of his debts, the expenses of administration, and family allowances. (Rev. Codes, sec. 7546.) To ascertain what they do receive, deductions must necessarily be made for all these charges, and only the residue, when sufficient in amount, is subject to the tax. (Kennedy’s Estate, 157 Cal. 517, 29 L. R. A. (n. s.) 428, 108 Pac. 280; Commonwealth’s Appeal, 127 Pa. 435, 17 Atl. 1094; In re Dimon, 82 App. Div. 107, 81 N. Y. Supp. 428; Blackmore & Bancroft on Inheritance Tax, p. 265 et seq.)

Since, under the provisions of our statute (Rev. Codes, sec. 7724), property passing to direct heirs must amount to $7,500 before it is subject to an inheritance tax, no such tax can be imposed in this instance.

The orders appealed from are therefore reversed.

Reversed.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.