State v. . Brevard , 62 N.C. 141 ( 1867 )

The testator, Ephraim A. Brevard, died in the year 1854, leaving no issue, and his devisees were brothers and sisters, and other collateral relatives. The estate was very large, and consisted of realty and personalty in this State and in Alabama. The property in Alabama was sold by an administrator appointed in that State, and a part of the proceeds paid to the defendants, the executors appointed by the will and duly qualified in Lincoln County Court. Among the specific legacies was that to R. A. Brevard, a brother, and one of the executors of the testator. It consisted of "the tract of land on which Vesuvius furnace is situate, with all the appurtenances of said furnace," etc., and a number of negroes — charged with the payment of sums of money to other relatives.

It appeared from the reports filed that the executors have in (142) hand valueless currency, collected by them during the late war, to the amount of $4,965.10. The counsel for the defendants admit that they are liable in this suit for the tax on all the legacies, general and specific, paid out of the testator's property, situate at the time of his death in the State of North Carolina, except that on the bequests and devises to R. A. Brevard, one of the executors. With regard to the bequests and devises referred to in the exception, it is contended that the tax on them is to be paid by the legatee and devisee himself, as an individual and not as executor, and in support of this position the sections from 7 to 12 of the Rev. Code, ch. 99, are relied on. Section 11 sustains the exception as to the devise of land, but there is nothing in any of the sections of the act to prevent the liability of all of the executors to pay the tax on a legacy given to one of them.

Alvany v. Powell, 55 N.C. 51, fully sustains the objection that the defendants are not liable for any tax to this State on account of the property of the testator which was situate in Alabama at the time of his death. It is true that the point of that decision is that the property of a nonresident, situate in this State at the time of his death, is liable to pay a tax to the State upon its devolution to collateral kindred; but in the opinion of the court it seemed to be clearly admitted that our revenue law does not impose a tax on the property of the decedent which was not in the State, though given by will, or devolved by law upon one of our citizens.

Whether the defendants are to be excused from paying any tax (143) on the Confederate money which became valueless on their hands, we can not be prepared to decide until it is determined whether they will be allowed for it in their settlement with the legatees. If the latter get good money, the State must, of course, have a tax from it. A decree may be drawn in accordance with this opinion, and the cause will stand on further directions.

PER CURIAM. Decree accordingly.

Cited: S. v. McGaillard, post, 349.