Tax Commission v. Oswald

DAY, J.

1. The testator used the following language ini his will: “First. I will and bequeath to miy wife, Jennie V. Oswald, whatever property I am possessed at my decease, both personal and real. She to have full power to sell, deed and transfer, any or all of •it, as she may deem best to better her condition.

“Second. After the death of my wife whatever property remains of my estate I will and bequeath as follows: One-half (%) to J. W. Oswald or hi issue; one-half (%) to J. M. Oswald or his issue.

“Third. At the time of this distribution, should either of my brothers above be deceased, without leaving issue — then such share shall go to the bro ther remaining or his issue.”

Held: That the wife, Jennie V. Oswald, took a life estate in the property, both personal and real, coupled with power to sell, deed or transfer any or all of it “as she may deem best to better her condition,” and that the gift over of what mlay remain unconsumed amounts to a vested remainder in the whole of the property, subject to be divested in part from time to timie, or in whole by the exercise of the power. (Johnson v. Johnson, 51 Ohio St., 446, approved and followed.)

2. Where remainders are vested, by reason of which the actual market value thereof can be ascertained at the time of the death of the testator, the terms of Section 5343, General Code, apply and the succession tax to be imposed shall be “at the highest rate which . . . would be possible under the provisions of this subdivision of this chapter,” leaving to the interested individuals the procuring of refunders as provided by law.

Judgment reversed.

Marshall, C. J., Wanamaker, Robinson, Jones, Matthias and Allen, JJ., concur.