Parker v. Tax Commission ( 1926 )

HOUCK, J.

F. E. Myers died intestate, Feb. 2, 1923. He was a widower and left as his surviving heirs at law, three children: Mary Myers Parker, John C. Myers and Helen Myers Miller.

The Probate Court of Ashland County determined that the estate subject to the inheritance should include items of property appraised by the county auditor at $5,281,140.25 which had been given away by the decedent within two years prior ■ to his death. • The estate has already paid the tax on approximately $6,000,-000.

In the exceptions filed, further objections Court computed the taxes due with respect to wore made to the method by which the Probate different successions to each of the individual plaintiffs in error; and to the value at which the auditor appraised; and the Court included as subject to the inheritance tax, a parcel of real estate subject to long term lease. The Probate court overruled the exceptions and gave judgment to the Commission for the amount of the inheritance tax based upon the entire sum of $5,281,140.25’.

The Ashland Common Pleas on the trial of the case de novo, found that the estate subject to tax should not include certain items of gifts; and that the tax should be computed on the sum of $3,442,951.29. The Court of Appeals held:

1. The decisive question here is, were the gifts in uqestion, made by F. E. Myers in contemplation of death?

2. “In contemplation of death means that the expectation of death which actuates the mind of the person on the execution of his will.” 5331 GC.

3. “Any transfer of property from a resident if shown to have been made without a valuable consideration - - - if so made within two years prior to the death of the transferor, shall, unless shown to the contrary, be determined to have been made in contemplation of death-etc.” 5332-2 GC.

4. Sec. 5332 GC. provides that a tax is levied upon the succession to any property passing in the .following cases (among others):— 3. “When the succession is to property from a resident-by .deed, grant, sale, assignment or gift, made without a valuable consideration substantially equivalent in money or moneys worth to the full value of such property.”

(a) In contemplation of the death of the grantor, or

(b) Intended to take effect in possession or enjoyment at or after such death-”

5. The cross-petition, of the defendant in error should be dismissed, which is now done.

6. The judgment of the Common Pleas Court as to gifts 1, 2 and 4 are affirmed; and reversed as to gift number 3.

Judgment as modified, affirmed.

(Shields & Lemert, JJ., concur.)