State, Gano v. Apgar , 41 N.J.L. 230 ( 1879 )

The opinion of the court was delivered by

Dalrimple, J.

The prosecutrix’s complaint is that she was taxed, in the year 1877, in the township of High Bridge, in the county of Hunterdon, on the full amount of two mortgages given to the Chancellor in certain partition proceedings. The interest on these mortgages is payable to the prosecutrix during her life, and at her death the principal goes to her children. Though the state of the case does not in terms affirm, yet, I think, it is fairly inferable, from what is said, that the prosecutrix’s interest in these mortgages was given her in lieu of her right of dower in the lands embraced in the partition proceedings.

That the prosecutrix was taxable on these mortgages only to the extent of the interest which had accrued up to the day of assessment, and which then remained unpaid, I think is settled, so far as this court is concerned, by the cases, of State, Hill, pros., v. Hansom, 7 Vroom 50; State, Wyckoff, pros., v. Nunn, 10 Vroom 422; State, Wyckoff, pros., v. Jones, Id. 650; State, Howell, pros., v. Cornell, 2 Vroom 374.

It might appear at first blush that the case of Holcombe v. Holcombe, decided by the Court of Errors and A ppeals at the last July Ter.m (2 Stew. 597), overrules the cases in this court above referred to. Such, however, I do not think is the effect of the ruling in the case last mentioned. There the principle adjudicated is that, under section seven of the tax law of 1866, (Rev., p. 1153,) which declares that every person shall be assessed in the township or ward where he resides for all personal estate in his possession, or under his control as trustee, guardian, executor or administrator, executors were taxable as such on a fund held by them and directed by will to be invested for the benefit of tenant for life, with remainder to be paid at her death to certain persons designated. It was also held that no provision having been made by the will for the payment of the taxes, by the .general principles of the law they were to be charged to and deducted by the executors from the annual interest, during the existence of the life interest. I do not think the principles announced in that case apply to the present. Therefore, the assessment brought up must be reduced so that the prosecutrix will be obliged to pay a tax only on the interest of the mortgages which had accrued, and which remained unpaid on the day the assessment was, in contemplation of law, made.

The result is the same, under like circumstances, in the case of State, Gano, pros., v. Shafer, Collector of Union Township, in the County of Hunterdon.