THE Inheritance Tax Law OF THE STATE OF ILLINOIS, BEING THE Act to Tax Gifts, Legacies and Inheritances in certain cases, etc., in FORCE July 1st, A. D. 1895, as Amended in 1901, and as Revised and Extended under the title of An Act to Tax Gifts, Lega- cies, Inheritances, Transfers, Appointments and In- terests IN Certain Cases, etc., in force July 1st, A. D. 1909, WITH A ':•"'".: \ ': ' ' DIGEST OF All the Decisions of the Supreme Court of Illinois; References to Opinions of the County Court of Cook County; Decisions of the United States Supreme Court; Decisions of the Courts of New York, Massachusetts, Iowa, New Jersey, California and other States; together with the PRACTICE AND PROCEDURE In the County Court of Cook County (including the County Judge, as such, and before Appraisers). RULES OF PROCEDURE established by state officers. OPINIONS OF THE ATTORNEY GENERAL OF ILLINOIS. COMPLETE TABLE OF CASES AND FORMS AND DECISION OF THE COURT OF CLAIMS. BY WALTER K. LINCOLN, OF the CHICAGO BAR. INHERITANCE TAX ATTORNEY FOR COOK COUNTY. COPYRIGHT 1912 by WALTER K. LINCOLN Press of Barnard & Miui-er uaw printers .". chicago TABLE OF CONTENTS, CHAPTER I. HiSTORiCAi. — Origin of Illinois Laws — Gteneral Sub- ject — Succession. Par. Page. 1. Historical 1 2. The United States 3 3. The Inheritance Tax Law of Illinois— Its Origin and Constitu- tionality. Nature of the Law in General 4 4. Constitutionality — New York Law of 1885 4 5. Act of 1885 construed to exclude non-residents^ property 5 6. Amendment of 1887 designed to cover non-residents* property. 5 7. Tax extended to lineals 5 8. Illinois Law of 1895 taken from New York 6 9. Constitutionality of Illinois law of 1895 6 10. Illinois Law of 1895 held constitutional by the United States Supreme Court 9 11. Amendment 1901 — Illinois 13 12. Illinois Law in force July 1st, 1909 14 13. Scope of the Law 14 14. State 's Interest 14 15. Eight to take property is regulated by the State 14 16. Construction — in favor of the tax payer 15 17. "When against the citizen 15 18. Tax — Controlled by Statute in force at death of decedent 15 19. Intestate Laws — Meaning of 15 20. Succession — is governed by the law of domicile 16 21. Succession — governed by law of domicile 16 22. Succession — governed by law of domicile 17 23. Succession — cannot be changed by compromise among benefi- ciaries. Money paid in compromise not a deduction 17 24. Compromise of will contest — does not affect law of succession . . 17 25. Curtesy — does not pass by will or intestate laws 18 26. General Revenue Law — decisions under not necessarily in point in inheritance tax cases 19 27. Transfer Tax Act of 1892 (N. Y.) not retroactive 19 28. Remainders created prior to tax law are not taxable by sub- sequent enactment 20 29. When State Supreme Court Final on Matters of Taxation 22 257550 11 CHAPTER IT. Property Within the State — Traii^sfers Taxable — Statutory Exemptions — Eates of Tax. Par. Page. 30. Section One, Illinois Law of 1895 27 31. Section One, Illinois law in force July 1st, 1909 28 32. Transfer — Meaning of 31 33. Transfer — Eights and rates determined as of death 31 34. Transfer — Time of 32 35. Transfer — Acceptance of Transfer is necessary. 32 36. Transfer — When a widow accepts a devise in lieu of dower. ... 32 37. Transfer — ^Payment of a debt for services by legacy 33 38. Trustee's fees coupled with annuity is taxable bequest 33 39. Transfer— must be something of value. Worthless account... 34 40. When the Imposition of a tax must be postponed (Laws 1895) 34 41. Eemainder — When contingent cannot be presently taxed 35 42. Eemainder — Is Vested When (Laws 1895) 35 43. Eemainders — Tax Payable at Testator's death 35 44. Eemainders — Defeasible estates not taxable until indefeasible 35 45. Eemainders — Created prior to Tax Legislation are not taxable. 36 46. Dower — Is not Taxable and must be subtracted from property chargeable therewith 37 47. Dower — is Taxable in Illinois under Act of 1895 38 48. Award 38 49. Ante-nuptial contract — when taxable 39 50. Ante-nuptial Contract — not taxable 40 51. Ante-nuptial contract to make a will — transfer is by will and taxable 40 52. Advancements — Taxable under Federal Inheritance Tax Law. 41 53. Community Property — California Statute taxing same does not impair Obligation of Contract 42 54. Gifts Inter Vivos — When Not Perfected 42 55. Paragraph One, Section One, Illinois Law 42 56. Equitable Conversion — General. ' 43 57. Equitable Conversion Not Applicable to Subject Property to Taxation 43 58. Personal Property — Testamentary Direction to Convert Eeal into Personal Property 44 59. Property Physically Situate at Domicile of Owner 44 60. Leasehold Interest 45 61. Domicile Within the State — Chattels Without the State 45 62. Property in Foreign State — Taxable at Domicile of Decedent. 45 Ill Par. Page. 63. Personal Property— Share in a Joint Stock Association Owning Keal Estate 45 64. Life Insurance — Payable to Executors or Assigns 46 65. United States Bonds — ^When Not Taxable 46 66. United States Bonds — When Taxable 47 67. United States Bonds — When Taxable 47 68. Paragraph Two, Section One, Illinois Law 48 69. Non-residents' Property situate in New York Not Taxable Under Act of 1885 48 70. Property Within the State — When Taxable 48 71. Property Within the State — Ancillary Administration Cannot be Invoked to Increase Tax. Mortgage Deducted 49 72. Eeal Estate — ^United States and Other Bonds — Cash and Notes Within the State 50 73. Stocks and Bonds of Domestic Corporations Taxable in Illinois — Stocks and Bonds of Foreign Corporations Not Taxable (L. 1895) 51 74. Stock of Domestic Corporations — Owned by Non-resident Decedent 53 75. Stock and Bonds of a Domestic Corporation — Non-resident Owner — Held as Collateral 53 76. Stock — Certificates and Owner's Residence Without Taxing State 54 77. Stock — Decedent a Non-resident and Certificates Without the Taxing State 54 78. Stock — Certificates and Owner's Residence Without the Taxing State — Taxable 55 79. Situs of Stock for Taxation 55 80. Stock of New Jersey Corporation — Not Taxable When Owner Dies Non-resident 55 81. Stock — Certificates and Owner's Residence Without Taxing State 57 82. Stock— Decedent a Non-resident — Certificates Without the Tax- ing State — Sole Administration in Foreign Jurisdiction and Closed Before Tax Paid in New York 57 83. Stock — Issued by Corporation With Property in Two States — Shares Taxable at Full Value. National Bank Stock 58 84. Stock of Corporation Organized in One State — Property of Corporation in Several States 59 85. Stock of a Corporation Organized in Two or More States — Tax- able on Proportion of Property 59 86. Mileage is a Fair Basis to Determine Proportion — But Is Not the Only Basis 63 87. Stock of Corporation with Property in two or more States — Proportion Taxable 63 88. Stock — Non-resident — Proportionate Value Taxable 64 89. Stock — Non-resident Ownership Requires Ancillary Adminis- tration in Taxing State 64 IV Par. Page. 90. Stock of National Banks — Taxable 64 91. Stock of Foreign Corporations — Not Taxable 65 92. Stock of Foreign Corporation — Not Taxable 66 93. Bonds of Foreign Corporation and Stock of National Bank Within the State 66 94. Bonds of Foreign and Domestic Corporations — Stock of Do- mestic Corporation 67 95. United States Bonds — Stock of Foreign Corporations 68 96. Bonds — ^Foreign — When Taxable 68 97. United States Bonds — When Not Taxable 68 98. Bonds and Stock of Domestic Corporations Owned by Non- resident and Situate Without the State 69 99. Bonds Held out of New York secured by mortgage on land in New York— Not Taxable 71 100. Notes Secured by Mortgage 72 101. Notes — When Situate at Domicile of Non-resident of Massachu- setts, but secured by Eeal Estate Therein 72 102. Property Taxable in Two States — Money Deposited in New York — Depositor Eesident of Illinois 74 103. Money — Deposited in New York State for Nearly Two Months —Taxable 75 104. Money of Non-resident Decedent on Deposit in New York — Trust Account 75 105. Notes Secured by Mortgage Taxable in Michigan 76 106. Notes Secured by Mortgage on Lands in Michigan Subject to Taxation 77 107. Land Contracts 78 108. Non-resident — Capital Invested in Business in New York — Stock Exchange Membership Taxable 78 109. Partnership Property 79 110. Partnership — Assets in New York and Illinois 79 111. Non-resident Decedent Possessed of Legacy in New York Estate 79 112. Share of Eesident Decedent in Undistributed Foreign Assets.. 80 113. Deceased Non-resident ^s Interest in Eesident Decedent's Estate 80 114. Non-resident Decedent a Beneficiary in Unliquidated Assets Within the State 81 115. Credits of Non-resident in Taxing State — When Taxable 81 116. Tax Paid to United States Under Federal Inheritance Tax Law and Tax Paid to the State of Montana Does not Affect Taxation in the State of New York 82 117. Non-resident — When Property in Taxing State is Equalled by Indebtedness 83 118. Insurance — Domestic Policy on Life of Non-resident not taxable 83 119. Insurance — Domestic Policies on Life of Non-resident Not Taxable ; 84 V Par. Page. 120. Contract for Sale of Land in Nebraska — Owner a Eesident of New York 84 121. Non-resident Estate — Distribution by Executors Cannot avoid Taxation 84 122. Non-resident Estate — Distribution by Administrator Cannot Avoid Taxation — Proportion of Indebtedness Deductible .... 84 123. Distribution of Property of Non-resident Cannot Reduce Tax. Pro Rata Distribution 85 124. Non-residents — Property in Taxing State Pro Rated for Taxa- tion. Executors Cannot Distribute so as to Reduce Tax. ... 85 125. Paragraph Three, Section One, Illinois Law 86 126. Transfer in Contemplation of Death 86 127. Transfer in Contemplation of Death 89 128. Transfer in Contemplation of Death — ^Act Imposing Tax Con- stitutional 90 129. Transfer — When Not in Contemplation of Death 91 130. Transfer to Take Effect after Death — a Writing Not Necessary to Evidence Retention of Income 92 131. Transfer to Take Effect after Death — When Taxable 93 132. Transfer Prior to Death — When Not Taxable 94 133. Transfers Prior to Death — When Taxable 96 134. Transfers — To Take Effect at or after Death 96 135. Transfer — To Take Effect at or after Death 98 136. Transfer to take effect at Death 98 137. Transfer — Intended to Take Effect at Death of Donor 99 138. Transfer Prior to Death — Reservation of Income by oral arrangement 100 139. Transfer Prior to Death — ^When Taxable 100 140. Cases in Which Transfers were Held Not Taxable 100 141. Transfer — Intention to Defeat the Tax 101 142. Transfer — Taxation is Imposed at Time of Death of the Grantor 101 143. Transfer by Deed Prior to Inheritance Tax Law — When Tax- able 101 144. Other cases wherein the question of tax is raised on transfers prior to death 101 145. Paragraph Four, Section One, Illinois Law 102 146. Power of Appointment — When Created by will of decedent who died prior to tax legislation — real estate converted into Personalty before Transfer 103 147. Power of Appointment — Transfer is Effected by Exercise of Power 106 148. Power of Appointment Created by will of Testator who died prior to tax Legislation 109 149. Tax on Transfer Effected by Power Created under will before tax Legislation Constitutional 110 150. Power of Appointment— When Situs of Property Immaterial. 110 VI Par. 151. Tax on Transfer Effected by Exercise of a Power created Prior to Tax Legislation Constitutional 112 152. Power of Appointment — When Erroneous Prior Assessment Does Not Preclude Tax on Transfer by the Exercise of the Power 113 153. Power of Appointment — Eeal Estate in New York Appointed by Non-resident Donee Taxable 114 154. Donee and Appointee Non-resident — Property within the State 115 155. Mortgages held Outside State Transferred by Non-resident under Testamentary Power Created by will of deceased resident of New York 116 156. Power of Appointment — When Not Exercised 117 157. When Appointee Takes under will creating Power and not by exercise of power 117 158. When Exercise of Power is Mere Form Beneficiary Takes by Will Creating Power 118 159. When Appointee Elects to Take by Will instead of Power... 119 160. Value of Property Not Diminished by Life Estate Previously Taxed 120 161. Eelationship of Donee of Power to Appointee Determines Eate of Tax 120 162. Eate of Taxation Governed by Law in Force at the Time of the Exercise of the Power 120 163. Exemptions — Eelationship — Eates of Tax — When Tax Accrues — All Questions Determined as of Date of Transfer 121 164. Tax Accrues at Death of Decedent 121 165. Beneficial Interest — Transfer Must Be Effective While Tax Law is in Force 121 166. Eate of Tax Determined by Eelationship 122 167. Exemption 122 168. Exemption — Statutory Exemption Eelates to the Share of Beneficiary 122 169. Exemptions — Claimant Must Show Exemption 122 170. Exemptions — not favored 123 171. Lineal Descendants — Children of Adopted Child 123 172. Particular Eates of Taxation and Exemptions under the Illinois Law in Force July 1st, 1895 123 173. Transfers Under the Illinois Law Effected Prior to July Jst, 1909 — Eates and Eights of the Parties 124 174. Illinois Law in force July 1st, 1909 — Eates and Exemptions. . . 124 175. Husband of a Daughter who died before Testator 125 176. When Husband of Deceased Daughter is remarried 126 177. Widow of Adopted son is ''Widow of a Son" 126 178. Adoption — When Effected in Foreign State Entitles Beneficiary to Exemption 126 179. Children of an Adopted Child are " Lineal '^ Descendants of Decedent 126 vu Par. Page. 180. Child of Adopted Child— When Taxable 127 181. Relation of Parent to Beneficiary— Must be Clearly Shown.. 127 182. Acknowledged Eolation of Parent 127 183. Parent and Child — Mutually Acknowledged Relation 128 184. Children of Person to whom Decedent stood in Relation of Parent — Stranger in Blood 129 185. Children of Person to whom Decedent Stood in Relation of Parent are Taxable 129 186. Act of 1909 (Illinois) Limits Exemption 130 187. Both Parents must be dead — Stepchild a stranger 130 188. Grandmother not a ** Lineal Descendant'^ — Taxable as Stranger 131 189. Second Class Beneficiaries — Uncle, Aunt, Niece or Nephew, or any Lineal Descendant of the same 132 190. Contra 132 191. Third Class — Strangers in Blood, etc 133 192. Exemptions — $500 a Limitation, not an Exemption 134 193. Exemptions — $500 a limitation 134 CHAPTER ni. Date of Valuing Property, Life Estates, Annuities AND EeMAINDERS. 194. Section Two 135 195. When Life Estate is Exempt — Exemptions to Certain Lineals Abolished 136 196. Discrimination Between Remainders to Lineal and Collateral Heirs 137 197. Constitutional — Discrimination Between Beneficiaries. Property Transferred without the State at Death of Donor 137 198. Five Per Cent. Rate for Valuing Annuities and Estates for Life or Years 138 199. Value of Property Transferred — ^Fixed as of what time 138 200. Remainders and Life Estates — How Determined 138 201. When Life Estate Deducted and not Taxable 138 202. Value of Remainder — How Determined 139 203. Remainder — Value of — How Determined 139 204. Life Estate — How determined after Decease of Life Tenant. . . 139 205. Life Estate — ^Valuation when Tenant Predeceases Appraisement 139 206. Bond may be Given by Beneficiary not in actual Enjoyment or Possession 140 vm CHAPTER rV^ When Tax is Due — Interest. Par. Page. 207. Section Three 141 208. Tax — is Due and Payable at Death 141 209. Tax Paid by Whom? 142 210. Interest is chargeable from death — Tax must be Paid within six months to obtain discount and avoid interest 142 211. County Court cannot go Outside of Statute to Grant Relief... 143 212. Courts — Cannot Pass on the Wisdom of Legislative Policy 143 213. Interest — Rate Determined by Law in Force at Death of Testator 144 214. Interest — on Estates Postponed for Taxation 144 215. Deposit to save Discount and Interest 144 CHAPTER V. Legal Representative to Coixect Tax From Benepi ciARY OR Heir. 216. Section Four 146 217. Administrator — must Withhold Tax from Share of Beneficiary 147 218. Executor — Duty to Move for Appraisement 147 219. Executors and Administrators — Subrogation 147 220. Executors — Liability 147 221. Power to Apportion Property to pay Legacies 147 CHAPTER VI. Legal Representative — Dx-^ty — Liability. 222. Section Five 148 223. Executor — Personally Liable 148 224. Executor — Liability 149 225. Collection of Tax — Executors, etc., Must Pay Tax 149 226. Executors, Administrators and Trustees Personally Liable 149 227. Executors and Administrators Liable to Pay Tax 149 228. Executors Liable to Pay Tax 149 229. Executor's Liability 150 230. Executors — Non-resident Executor not Discharged from Lia- bility 150 231. Executors — Personally Liable 150 I IX Par. Page. 232. Executor — When Not Liable 150 233. Executor and Administrator — Liability not Relieved by Dis- charge without Payment in Probate Proceeding 151 234. Subrogation— Covenant of Warranty in Deed Transferring Land Subject to Tax 151 CHAPTER VII. Tax Payable to County Treasitbeh — Receipt. 235. Section Six 153 236. Probate Court Cannot Discharge Liability of Legal Represent- ative — Must Appeal to Review Appraisement 153 237. Discharge of Probate Court does not Discharge Executor or Administrator from Liability 154 238. Probate Court May Demand Voucher Showing Payment 154 CHAPTER VIII. Legal Representative to Make Known Property Sub- ject TO Tax. 239 Section Seven (Law 1909) 155 CHAPTER IX. Refund of Tax. 240. Section Eight (Law 1909) 156 CHAPTER X. Transfer of Property by Corporation, Bank, Deposit Company, Institution or Person. 241. Section Nine 157 242. Is Constitutional 159 243. Litigation Involving Section Nine 159 244. Possession and Control of Safe Deposit Company 160 245. Possession and Control of Safe Deposit Company — Must De- liver the Contents to Owner — State is Part Owner 160 246. State 's Interest in Property Contained in a Safety Deposit Box 161 247. Notice — State Must be Advised of the Contents of the Box. State a Part Owner 161 X Par. Page. 248. Depositary and Safe Deposit Company not Deprived of Consti- tutional Eight by Eequirement of Notice 162 249. Depositary has Kemedy 162 250. State has Interest Equal to Beneficiary 163 251. Interested Parties are Entitled to Knowledge of Contents of Box 163 252. Joint Lessees — Co-Partnership Property — Constitutional 163 253. State's Eight is Fixed at the Time of the Death of Lessee. . . . 164 254. Does not Impair Obligation of Charter of Safe Deposit Com- pany 164 255. No Delivery until Tax is Paid 165 256. Safe Deposit Company not Deprived of Property and Liberty Without due Process of Law 165 257. Depositary Company as Tax Gatherer 165 258. Unreasonable Searches and Seizures 167 259. Property of Safe Deposit Company not Subject to Public Use without Just Compensation 167 260. Corporations Liable for Transfer of Stock 168 261. Notice — Bank, Custodian of Money or Securities — Must give the Notice 168 262. Will and Codicils not Property within Section Nine 168 263. Transfer — what Constitutes within Meaning of Section Nine.. 169 CHAPTER XT. Eefund of Tax. 264. Section Ten 170 265. County Treasurer — Cannot Eefund 170 266. State Treasurer — Cannot Eefund without Appropriation 171 267. Eefund by State — Payment must have been under Duress of Compulsion 171 268. Eefunds — When Court of Claims Awarded Claim for Eefund or Erroneous Payment 171 269. State Auditor 172 270. Interest — Cannot be Eecovered on Eefund 172 271. Interest — Cannot be Eecovered against the State of Iowa on Eefunds 172 272. State 's Duty— Eefunds 173 XI CHAPTER XII. Appeaiser aintd Appraisement. Par. 273. Section Eleven 176 274. Tax Proceeding is One at Law 177 275. County Judge Appoints Appraiser — Appeal lies to County Court — The State is an Interested Party and is Eepresented by the Attorney General — Appeal Lies to the Supreme Court,. 178 276. County Judge must Appoint Appraiser — Mandamus may be Invoked 180 277. County Judge — Has Original Jurisdiction to fix the Tax 184 278. County Judge is Assessing and Taxing Officer 184 279. County Judge — Is Made a Taxing Officer — Fixes tax ''As Of Course. ^ ' Is a Special System of Taxation 184 280. County Judge — Order of Tax must be Entered "Forthwith." Objection to order cannot then be made 185 281. County Court — Has Power to Determine all Questions Eelating to Taxation 185 282. County Court — Construction of Will Conclusive only as to Taxation 186 283. When State not Bound by Construction of Will 186 284. County Judge has Original Jurisdiction to Determine Tax.... 186 285. Appraiser 187 286. Commission to Take Evidence 187 287. May Compel Witness to Testify 187 288. Not Concluded from Taxing Property Escaping Taxation Be- cause of Executor's Claim it was not Part of Estate 187 289. Order of Tax — is Final as to Property Involved 188 290. Order of Tax is Final when not Appealed from 188 291. Order of Tax Cannot be Modified except by Appeal — Excessive Valuation not Eeviewable on Petition 189 292. Order of Tax is Final 190 293. Order of Tax is Final and Ee-appraisement cannot be made.. 190 294. Order of Tax is Final and can Only be Eeviewed by Appeal. . 191 295. Cannot Amend Order Assessing Tax 192 296. Can Amend or Correct Order without Appeal 193 297. Cannot Eeverse Order of Tax on Motion 193 298. Order of Tax is a Decree or Order of Court 193 299. Subrogate Acts Judicially in Entering Order of Tax 194 300. Notice of Tax — Presumption of Service by County Judge 194 301. County Judge — Must Enter Order According to Direction of Court of Eeview — Appeal Cannot be Taken in Piece-meal, , . 195 302. Appraisement and Appraiser 195 xu Par. Page. 303. Appraiser Fees 196 304. Expenses and Disbursements 196 305. Legal Counsel for Appraiser 196 306. Service is Had by Notice 196 307. Appraisement must Proceed under Section Eleven of the Illinois Lav^ 197 308. Inventory — State has Eight to Compel Filing 197 309. Appraisement 198 310. Practice and Procedure — ^Which Law Governs 199 311. Contingent Estates— All Property Appraisable — Tax Postponed 199 312. Eesidence — Appraiser May Determine 199 313. Appraiser — Surrogate May Appoint before Claims are Ascer- tained 200 314. Appraiser Cannot Decide Question of Law 200 315. Appraiser — May Hear Evidence on Deductions 200 316. Evidence — ^Presumption is Absence of Proof of Jurisdictional Facts 200 317. Evidence — Proof must Clearly Identify Property Alleged to have been Transferred by Death 200 318. Evidence — ^Presumption When Deposit in Name of Husband and Wife 201 319. Evidence — Must Show Income Eeserved 201 320. Joint Stock Association — Eeal Estate to be Considered in Val- uation . 202 321. Appraiser — Eeport May be Eeturned for Additional Proof 202 322. Appraisement — Second Appraisal not Permissible to Increase Value of Assets 202 323. Increase or Decrease in Value after Death not Material 202 324. Appraisement — Title of Case Must be in Name of Donor of Power 202 325. Appraisement — Property not Included in Appraisement can be subsequently appraised 203 326. Appraiser — ^If in Doubt Eeports Property Taxable 203 327. Appraiser — ^Duty Ended with Eeport 203 328. Misappropriation of Property by Executor does not Eelieve from Taxation as of Death of Decedent 203 329. Market Value — Fixed as of date of Death 204 330. Fair Market Value — Listed Stocks, etc 204 331. Market Value — Public Sales of Securities 207 332. Market Value — Synonymous with True Value 207 333. Market Value— Fixed at Transfer or Whenever Ascertainable 207 334. When no Market Value — Actual Value is Taken 208 335. Market Value — Isolated Eecord Sales do not Determine 208 336. Market Value — Where Evidence of sales is not Contradicted or rebutted, such Evidence must Prevail 208 xm Par. Page. 337. Market Value — Good Will can be Taken into Account in De- termining Market Value 209 338. Eange of Market 209 339. Deductions — in General 210 340. Amount of Administration Fees Allowed 210 341. Attorney's Fees and Executor's Commissions for Administra- tion and Defending Will — Claims of Non-residents 211 342. Deductions must be Presented at Appraisement — not afterward 213 343. Allowance of Decedent 's Debts 213 344. Commissions of Administrator 213 345. Commissions of Administrator — May be Estimated 213 346. Expenses of Administration 214 347. Eeal Estate Taxes — Deductible 214 348. General Eevenue Taxes Charged to Eeal Estate should be deducted 215 349. General Eevenue Tax — ^When not Deductible in an appraise- ment 215 350. Trustees — Commissions not Deductible 215 351. Deductions — Mortgages not Deductible from Personalty 216 352. Inheritance Tax — Not Deductible 216 353. Deductions — Inheritance Tax 216 354. Burial Lot — When Cost is Deductible 216 355. Deductions — Second Appraisement— Assets Increased by De- feating Claims against Estate 216 356. Doubtful Deductions rejected 217 357. Deduction — Note in Litigation 217 358. Deductions — Legal Services for Construction of Will 217 359. Deductions — Expenses of Litigation between Distributors not Deductible 218 360. Ante-nuptial Contract does not Create an Indebtedness of the Estate 218 361. Debts of Non-resident Estate — What Deductible from New York Assets 218 362. Deductions — Pro Eates in Non-resident Estates 218 363. Debts — When Chargeable to Assets at Domicile of Non-resident Deductions should be Proportioned 219 364. Apportionment of debts between Exempt and Non-exempt Property 219 365. When one Co-tenant Furnishes money for Improvements 219 366. Appeal — County Judge to County Court 220 367. County Court to Supreme Court 220 368. Practice in Cook County, Illinois 220 369. Appeal — DeNovo — Common Law Proceeding— Bill of Excep- tions 220 XIV Par. Page. 370. Notice of Appeal — Attorney for State Comptroller cannot Waive and Confer Jurisdiction 221 371. Appeal 221 372. Appeal — is Necessary to Eeview Correctness of Assessment — Deductions must be Presented to Appraiser 221 373. Executor may Appeal 221 374. United States Supreme Court — When Construction of State Court will be Followed 222 CHAPTER XIII. Fees and Salaries. 375. Section Twelve 225 376. Clerk of the County Court— Fees. 226 377. Clerk of the County Court of Cook County 227 378. May Appoint an Inheritance Tax Clerk 227 379. Clerk of the County Court — ^Fees When the People Institute the Proceeding 227 CHAPTER XIV. Misconduct of Appraiser. 380. Section Thirteen (Law 1909) 229 CHAPTER XV. Jurisdiction of County Court. 381. Section Fourteen 230 382. County Court — Jurisdiction 230 383. County Court— Jurisdiction — County Judge acts as Assessor.. 230 384. County Judge first Taking Jurisdiction Appraises all Property Eegardless of its location 231 385. County Court — Has Power to issue Commission to Take Depo- sition in Non-resident Estate when there is Appraisable Property within the Court's Jurisdiction 231 386. County Judge — County Wherein Donee of Power was Domiciled Determines Jurisdiction 232 387. County Judge — Jurisdiction — Non-resident 232 388. The Jurisdiction — Non-resident Decedent 233 389. Surrogate Court — will Assume Constitutionality of Statute.. 233 XV CHAPTER XVI. COIXECTION OF DELIIvrQUENT TaX. Par. Page. 390. Section Fifteen 234 391. Section Sixteen 234 392. Enforcement of Collection — Contempt — Executors and Admin- istrators 235 393. County Court — Can Enforce Payment by Contempt 236 394. Delinquents Cannot Object to Correctness of Assessment 236 395. Executor — Liability Cannot be Determined Under Section Six- teen, Laws of 1885 (N. Y.) 236 CHAPTER XVII. Infoemation to County Treasurek. 396. Section Seventeen (Law 1909) 237 CHAPTER XVIII. Expense for Service of Summons. 397. Section Eighteen 238 398. Sheriff — Cannot be reimbursed by State Treasurer 238 CHAPTER XIX. Record Kept by County Judge. 399. Section Nineteen (Law 1909) 240 CHAPTER XX. County Treasurer. 400. Section Twenty 241 401. County Treasurer Must Remit all Inheritance Tax Collections to State Treasurer within Reasonable Time 241 401a. Remittance can be enforced by Mandamus 241 401b. Illinois Supreme Court has determined when remittance shall be made 241 XVI CHAPTEiR XXI. Fees of County Tkeasukeb — Duplicate Tax Receipts. Par. Page. 402. Section Twenty-one (Law 1909) 244 403. Section Twenty-two (Law 1909) 244 404. Who Entitled to Eeceipt — Filing in Different Counties 244 CHAPTEE XXII. Settling Question of Taxability and Lien — Statute OF Limitations. 405. Section Twenty-three (Law 1909) 246 405a. Section twenty-four (Law 1909) 247 406. Lien of Tax — When Tax is Postponed lien Continues until Lifted by Payment — Tax is on Succession 247 407. When Tax is "Due and Legally Demandable'* 247 408. Tax a Prior Lien to Mortgage 248 409. When State Estopped from Collection 248 410. Liability of Heir or Beneficiary not Believed — Lien Lifted from Eeal Estate 248 411. Executors, Administrators, Trustees or Beneficiaries not Be- lieved by Statute of Limitations 250 412. When the Statute is a Bar to Assessment 251 CHAPTER XXIIT. Tax Presently Payable — Refund on Subsequent Devolution. 413. Section Twenty-five 253 414. Vested Bemainder — what Constitutes 254 415. Contingent Interests — when not Taxable 255 416. Origin of Section Twenty-five 256 417. Bemainders — Contingent or Defeasible Interests are Presently Taxable and Tax is Forthwith Payable out of Trust Fund- Constitutionality Discussed 256 418. Contingent Interests Assessed at Highest Bate and Taxed.... 258 419. Tax — When Payment Diminishes Corpus of Trust — not Ground for Objection 262 420. Payment of Tax on Annuities out of Besiduum — Amount Paid is Eeturnable by Deducting from Annuity 262 XVll Par. Page. 421. Payment of Tax — By whom and from what Property Payable. 263 422. Payment of Tax — ^When Payable from Income 263 423. Contingent Estates — Eeview of Law Relative to Taxation Thereof 263 424. Remainders Vesting under Prior Enactment Not Affected by Subsequent Law Taxing at full value 266 425. Values on Prior Appraisement not Determinative of Subse- quently vesting estates — no Diminution Allowed on Account of Prior Valuation of Life Estates 268 426. Remainder — Effect of Prior Valuation on Section Appraisement of Property Postponed for Taxation 271 427. When Contingent or Vested Remainder not Presently Taxable 272 428. Estates Appraised in Illinois after July 1st, 1909 273 CHAPTER XXIV. Compromise of Tax. 429. Section Twenty-six (Law 1909) 274 429a. Clerical error 275 CHAPTER XXV. Special Guardian. 430. Section Twenty-seven 276 431. Special Guardian — when Unnecessary 276 432. Special Guardian — when Necessary 276 CHAPTER XXYI. Exemption of Religious, Educational, Charitable and Benevolent Bequests. 433. Section Twenty-eight 277 434. Exemptions to Religious, Educational and Benevolent Institu- tions—Amendment of 1901 — Illinois 278 435. Foreign Educational Corporation Taxable — Amendment 1901 Constitutional 278 436. Charity — Definition 282 437. Public Charity — Statue of a Horse with Drinking Fountain.. 282 438. Religious Corporation — when Organized under Laws of Foreign State 283 439. Foreign Corporations — United States a Foreign Corporation — is taxable as a Beneficiary 284 XVlll Par. -• 440. Foreign Eeligious and Charitable Corporations — Fact of Hold- ing Property in Taxing State Immaterial 284 441. Exemptions — Foreign Charity with Branch in Taxing State... 285 442. Charitable Bequests — When Bequest to Local Branch of a For- eign Corporation is Exempt 286 443. Charitable Bequests — ^Law Construed to Favor Exemption,... 286 444. Educational in Part — When one of the Purposes of Corporation is Educational 286 445. Exemption — Municipal Corporation not Exempt 287 446. Bequest for saying Mass is a Charitable Bequest and Exempt from Taxation 287 447. Foreign Corporation — ^Property within the Taxing State 289 448. Young Men 's Christian Association — when Exempt 290 CHAPTER XXVII. Certified Copy of Papers — Repeal. 449. Section Twenty-nine (Law 1909) 291 450. Section Thirty (Law 1909) 291 451. Section Thirty-one (Law 1909) 292 452. Amendatory Act Does Not Believe Previously vested Interests 292 453. Statutes — ^When Eevision Amounts to Continuation of the Act Superseded 292 454. New Enactment Embodying the same Principle of Law Ee- pealed 293 CHAPTER XXVIII. Practice and Procedure. 455. The General Subject 297 456. First Contact with the Law Usually Arises out of Section Nine 297 457. Penalty for Non-compliance is Incurred when 298 458. State has an Interest in every Estate 299 459. First Question with Depositary, Corporation, Association or Bailee is Liability 299 460. Estimation of Tax and Eetention to Cover 300 461. Basis for Issuing Consent — in General 301 462. Administration of Section Nine — Two Districts 302 463. Springfield District — Business Transacted at Springfield, Illinois 302 464. Book of Eecord Transfers 302 465. Chicago District— Comprises Cook County. All Business Trans- acted by Inheritance Tax Attorney at Chicago. Tangible Property or Evidences thereof 303 XIX Par. ♦ Page. 466. Book or Eecord Transfers 303 467. Communication to Wrong District 304 468. Consent — only Lifts Liability for Inheritance Tax 304 469. Notice 304 470. Springfield District — How to Obtain Consent to Transfer — De- ceased a resident or Non-resident of Illinois 305 471. No Administration 306 472. Deceased Eesident of Illinois. Administration, Transfer of Shares of Stock and Bonds on the books of the Corporation. 306 473. Decedent a Non-resident of Illinois — ^Book Transfer of Stock or Kegistered bonds 307 474. Form Administration Aflidavit required in Springfield District. 308 475. No Administration Affidavit. Springfield District 310 476. Form ''SS'' Notice 313 477. Chicago District — All Business Transacted with Joint Eepre- sentative of Attorney General and State Treasurer, at Chi- cago, Dlinois 314 478. Bank Deposits — Deceased a Resident of Illinois — ^Administra- tion of Estate in Illinois 315 479. Transfer— What Constitutes 315 480. Administration Affidavit — Chicago District 316 481. Bank Deposits — Deceased Resident of Illinois — No Adminis- tration Pending 317 482. No Administration Affidavit — Chicago District 318 483. Bank Deposits — Deceased a Non-resident of Illinois — Admin- istration or No Administration 321 484. Securities, Deposits or other Assets (other than bank deposits, but including collateral) under control or in Possession of a Bank, Trust Company, Corporation, Institution or Person — Decedent a Resident or Non-resident of Illinois — Adminis- tration or No Administration 321 485. Residence in Illinois — Administration 322 486. Residence in Illinois — No Administration 322 487. Security 322 488. Reports of Examiners 322 489. Non-residents— When Decedent is a Non-resident of Illinois and Regardless of whether there is or is not Administration of the Estate. Action of the Tax Office on Receipt of Form ''SS'^ Notice 323 490. Deposit — When made Consent issues 325 491. Deposit Returned if no Tax 325 492. Delay in Issuing Consents 325 493. Book Transfers of Stock and Registered Bonds — Decedent a Resident or Non-resident — Administration and no Adminis- tration 325 494. Non-resident Estates 326 XX Par. Page. 495. Safe Deposit Company — Storage Company — Decedent a Eesident or Non-resident of Illinois — Administration or No Adminis- tration 327 496. When Consent Issues 327 497. Emergency Examinations 328 498. Deposit System 329 499. Eecommendation to Non-residents 330 500. Afl&davit Answering Non-resident Questions 331 501. Common Mistakes in Preparing Affidavit 331 502. Delay 331 503. Section Eleven. In General Duty of Lawyer. Investigation. Appraisement. Evidence. Special Guardian. Appraiser's Eeport. Order of Tax. Tax Keceipt. Appeal to County Court. Appeal to Supreme Court 332 504. Appraisement under Section Eleven 333 505. Legal Eepresentative, Beneficiary and State "Interested Par- ties'' 334 506. Appraiser 335 507. Hearing Eooms — Appraisements had Therein 335 508. Hearing before Appraiser — Non-resident cases 336 509. Eesident cases 336 510. Close corporation stock 338 511. Eecord of Appraisement 338 512. Objections to Appraiser's Eeport cannot be Argued before County Judge 339 513. Inventories — Good Practice in Tax Matters 339 514. Description of Property in Inventories 340 515. Stocks 340 516. Bonds 340 517. Insures Immediate Consent to Transfer 340 518. Appraiser — Involuntary Appointment — Investigation by Tax Office 341 519. Life Estates and Eemainders — How Value Determined 341 520. Value of an Annuity of One Dollar on a single life, According to the Carlisle Table of Mortality 342 521. How to Ascertain Present Value of Annuity or Estate for Life — and Eemainder 343 522. Valuation of Annuity for a Fixed Period of Years 344 523. Fixed Annuity Table 344 524. Appeal to County Court 345 525. Appraiser 's Eeport Used as Evidence 346 526. Appeals to Supreme Court 347 527. Section Twenty-three 348 528. Proceeding to Quiet Question of Taxability— in General 348 XXI Par. Page. 529. The Other Section Providing Eemedy to Quiet Question of Taxability 350 530. Procedure for Determining Taxability* Under Section 11 351 531. Property ''In this State'' 351 532. Transferred within the Meaning of this Act 351 533. Interested Party 352 534. Petition — ^Form — Allegations — Proof under Section 23 353 535. Description of Property in Copy of Inventory made a Part of Petition 353 536. Form Petition for No Tax. 354 537. Petition for No Tax — Non-resident Decedent 360 538. Petition for No Tax — Eelation of Parent to Beneficiary 361 539. Order of No Tax 361 540. Entry of No Tax Order 364 CHAPTER XXIX. Attorney Geneeatv Opinions. 543. State's Attorney — Fees in General — Deposit to stop Interest 366 544. Interest — Euns until Tax is Paid 374 545. Deductions — ^When Expense for Monument cannot be Deducted 375 546. Appraiser Cannot Employ Lawyer and Charge his Services against State 376 547. Tax — When Postponed and When Immediately Collectible .... 380 548. Public Administrator has no General Duty to Enforce Inheri- tance Tax Law 383 549. A Will is not an Asset Within the Meaning of Section Nine of the Inheritance Tax Act, and may be Eemoved for the Purposes of Probate Without the Consent of the Attorney General and State Treasurer 384 550. Widow 's Award is Taxable 385 551. Eef und of Tax Erroneously Paid 387 552. Partnership Assets in Foreign State When Owned by Deceased Eesident of Illinois 390 CHAPTER XXX. Forms — Tax Law of 1895 as Amended in 1901 — Court OF Claims Decision on Refund of Tax. 553. Form Composition Agreement 391 553a. Petition for Appeal from County Judge's Order of Tax 395 553b. Order Allowing Appeal from County Judge's Order to County Court 396 XXll Par. Page. 554. Bond— Appeal to County Court 396 555. Order of County Judge Appointing Appraiser 397 556. Oath of Appraiser 398 557. Appraiser 's Notice of Hearing 399 558. Appraiser 's Eeport 399 559. Appraiser's Eeport — Schedule One 400 660. Appraiser 's Eeport — Schedule Two 400 561. Appraiser 's Eeport — Schedule Three 401 562. Appraiser's Eeport — Schedule Four 401 563. Appraiser 's Eeport — Summary 401 564. Appraiser 's Eeport — Schedule Five 403 565. Appraiser's Eeport — Exhibit "A," Certificate of Service of Process 402 566. Appraiser's Eeport— Close of Eeport 403 567. County Judge 's Order of Tax 403 568. Order Fixing Tax 403 569. Close of Order. 404 570. County Judge 's Notice of Tax 404 571. County Judge's Certificate of Mailing Notice to Person Taxed 405 572. Inheritance Tax Law of 1895, as amended 1901 405 573. Opinion of Court of Claims in Griffith ex. v. State of Illinois. 418 THE INHERITANCE TAX LAW DIGEST CHAPTER I, HiSTORiCAi. — Origin of Illinois Laws- General Subject. -Succession — The 1. Historical. 2. The United States. 3. The Inheritance Tax Law of Illinois — Its Origin and Con- stitutionality. Nature of the Law in General. 4. Constitutionality — New York Law of 1885. 5. Act of 1885 construed to ex- clude non-residents ' property. 6. Amendment of 1887 designed to cover non-residents' prop- erty. 7. Tax extended to lineals. 8. Illinois Law of 1895 taken from New York. 9. Constitutionality of Illinois law of 1895. 10. Illinois Law of 1895 held con- stitutional by the United States Supreme Court. 11. Amendment 1901 — Illinois. 12. Illinois Law in force July 1, 1909. 13. Scope of the Law. 14. State's Interest. 15. Eight to take property is regu- lated by the state. 16. Construction — in favor of the taxpayer. 17. When against the citizen. 18. Tax— Controlled by Statute in force at death of decedent. 19. Intestate Laws— Meaning of. 20. Succession — is governed by the law of domicile. 21. Succession — governed by law of domicile. 22. Succession — governed by law of domicile. 23. Succession — cannot be changed by compromise among bene- ficiaries. Money paid in com- promise not a deduction. 24. Compromise of will contest — does not affect law of suc- cession. 25. Curtesy — does not pass by will or intestate laws. 26. General Eevenue Law — deci- sions under not necessarily in point in inheritance tax cases. 27. Transfer Tax Act of 1892 (N. Y.) not retroactive. 28. Eemainders created prior to tax law are not taxable by sub- sequent enactment. 29. When State Supreme Court Pi- nal on Matters of Taxation. 1. Historical. The method of providing revenue by taxation of inher- itances is of great antiquity. The idea of the tax is be- lieved to have originated with the Egyptians. It is known that Inheritance Tax Laws were estab- lished in Erome as early as the year 6 A. D., and that in the time of Hadrian 117 to 138 A. D., the administration of such a law developed the practical question of allow- ing funeral expenses as a deduction from the taxable property, it being held that reasonable, and not extrava- gant sums, spent for burial and monument, were deduct- ible. The Inheritance Tax, 2d ed., page 14, by Max West (Columbia University). Gibbon's Eoman Empire, Vol. 1, ch. 6, pages 158-9, gives the following account of Inheritance Tax legisla- tion in Eome : **When Augustus resolved to establish a perma- nent military force for the defense of his govern- ment against foreign and domestic enemies, he insti- tuted a peculiar treasury for the pay of the soldiers, the rewards of the veterans, and the extraordinary expenses of war. The ample revenue of the excise, though peculiarly appropriated to those uses, was found inadequate. To supply the deficiency, the emperor suggested a new tax of five x>er cent, on all legacies and inheritances. But the nobles of Rome were more tenacious of property than of freedom. Their indignant murmurs were received by Augus- tus with his usual temper. He candidly referred the whole business to the Senate, and exhorted them to provide for the public service by s.ome other expe- dient of a less odious nature. They were divided and perplexed. He insinuated to them that their obstinacy would oblige him to propose a general land-tax and capitation. They acquiesced in silence. The new imposition on legacies and inheritances was, however, mitigated by some restrictions. It did not take place unless the object was of a certain value, most probably of fifty or one hundred pieces of gold, nor could it be exacted from the neares.t of kin on the father's side. When the rights of nature and poverty were thus secured, it seemed reasonable that a stranger, or a distant relation, who acquired an unexpected accession of fortune, should cheer- fully resign a twentieth part of it for the benefit of the State. Such a tax, plentiful as it must prove in every wealthy community, was most happily suited to the situation of the Eomans, who could frame their arbi- trary wills, according to the dictates of reason or caprice, without any restraint from the modern fet- ters of entails and settlements.'' The Inheritance Tax Laws of Holland were instru- mental in causing England to enact legislation of a some- what similar character, and during the reign of George III, the younger Pitt made the tax one on the transfer of personal property and charged executors and admin- istrators with the collection and payment. The English law has since divided itself into a number of classifications, the whole system being generally known as *^ death duties." Some of the colonies of Great Britain have adopted this system of taxation, two of which, Australia and New Zealand, secure a large part of their revenue from death duties. 2. The United States. A Federal Inheritance Tax Law was passed by Con- gress in our early history, but was shortly repealed. It was not until 1862, by the War Revenue Act that the In- heritance Tax became a factor for the production of rev- enue. The rates were increased in 1864, and in 1866 a penalty was provided for the non-compliance of execu- tors and administrators to report estates and property under their control to the Internal Revenue Collector. These laws were repealed in 1870. The Spanish War revenue bill of 1898 provided for a tax on inheritances. This law was repealed in 1902, and at the present time there is no Federal Law providing for such a tax. (See The Inheritance Tax, 2nd ed., 87 by Max West, for evolution of Inheritance Tax Legisla- tion.) 3. Tlie Inheritance Tax Law of Illinois. Its origin and Constitutionality. Nature of the Law in General. The first Inheritance Tax Law in Illinois, was approved June 15th, 1895, and went into force July 1st, 1895. Its provisions were largely taken from the New York Law, 1885, entitled — *^An Act to Tax Gifts, Legacies and Col- lateral Inheritances, in effect June 30, 1885, as amended in 1887 and 1891. The Act of 1885 created a tax on collaterals and ex- empted lineals, including in the exemption, certain other designated persons. 4. Constitutionality^ — New York Law of 1885. The Court of Appeals in passing upon the constitu- tionality of the New York Act of 1885, held: * ^ It is not very important to determine in this case whether the Act of 1885 is. to be regarded as impos- ing a tax upon property or upon the succession or devolution of property, by will or intestacy. In either case it is a special tax. In the one case it is a tax upon the particular class of property, and in the other case a tax upon the succession or devolu- tion of property, or the right to receive property in the cases mentioned in the statute. Whether it be one or the other it is free from constitutional objec- tion. It has never been questioned that the Legis- lature can impose a tax upon all sales of property, upon all incomes, upon all acquisitions of property, upon all business and upon all transfers. Taxes of a similar character were quite extensively imposed by the Acts of Congress passed during the late Civil War. If this be regarded as a tax upon property. 5 then it is free from constitutional objection if it be equally imposed and properly apportioned upon all the property of the class to which it belongs. A tax imposed for the general welfare upon a particular house, or the houses of a particular neighborhood, would be amenable to constitutional objection, but if imposed upon all the houses in the State, then it is a tax imposed upon all the property of that class, and is amenable to no objection.'' Matter of Mc- Pherson, 104 N. Y. 306; Wallace v. Meyers, 38 Fed. Eep. 184. 5. Act of 1885 Construed to Exclude Non-Resi- dent's Property. This law, as interpreted by the Court of Appeals, was not broad enough to include property in New York owned by a non-resident at death. Matter of Enston, 113 N. Y. 174. 6. Amendment of 1887 Desig:ned to Cover Non- Resident's Property. By the amendment of 1887, the New York Legislature added to the first section, among other things, the follow- ing: ^*0r if such decedent was not a resident of this State at the time of death" which property, **or any part thereof" shall be within the State, etc. The Court of Appeals in passing upon the scope of this amendment held it to apply to miscellaneous stocks and bonds of a non-resident held in New York at the time of death. It did not appear in this case where the corporations, which issued the stocks and bonds, were organized. (Matter of Eomaine, 127 N. Y. 80.) 7. Tax Extended to Lineals. The amendment of 1891 (New York) extended the tax to lineals, allowing an exemption of $10,000.00. 6 8. Illinois Law of 1895 Taken from New York. Generally speaking it may be said that Illinois adopted as its law of 1895, tlie New York Law of 1885 as amended in 1887 and 1891, substituting its own rates and exemp- tions, and certain other provisions, appearing at that time to fit the general policy of the State. 0. Constitutionality of Illinois liaw of 1895. In Kochersperger v. Drake, 167 111. 122, the Law of 1895 was reviewed by the Supreme Court of Illinois and declared constitutional. The Court in deciding the ques- tions involved, said: ^^The question presented by this appeal involves the constitutionality of the act entitled *^An Act to Tax Gifts, Legacies and Inheritances in certain cases, and to provide for the collection of same,'' approved June 15, 1895. The existence of the common law within the State of Illinois, results from the provisions of Chapter 28 of the Revised Statutes, which declare that the com- mon law of England, and all statutes of a general nature made prior to the fourth year of James I, shall be the rule of decision, and shall be considered as of full force until repealed by legislative author- ity. By that authority chapter 39 of the Revised Statutes, entitled **An Act in regard to the descent of property," and chapter 148, entitled **An act in regard to wills, ' ' were enacted, which in effect repeal the common law in reference to inheritance, and also repeal the statute enacted prior to the fourth year of James I in reference to devises. There is not in force in this. State under Chapter 28 any law provid- ing for the descent or devise of property. The laws of descent and the right to devise and take under a will within the State of Illinois owe their existence to the statute law of the State. The right to inherit and the right to devise being dependent on legisla- tive acts, there is nothing in the constitution of this State which prohibits a change of the law with refer- ence to those subjects at the discretion of the law- making power. The laws of descent and devis.e be- ing the creation of the statute law, the power which creates may regulate and may impose conditions or burdens, on a right of succession to the ownership of property to which there has ceased to be an owner because of death, and the ownership of which the State then provides for by the law of descent or de- vise. The imposition of such a condition or burden is not a tax upon the property itself, but on the right of succession thereto. To deny the right of the State to impose such a burden or condition is to deny the right of the State to regulate the administration of a decedent's estate. When, by the act of June 15, 1895, for the taxation of gifts, legacies and inherit- ances, in certain cases, the legislature prescribed that a certain part of the estate of the deceased person should be paid to the treasurer of the proper county for the use of the State, it was in effect an assertion of sovereignty in the estate of deceased persons. Whether to be levied and determined as a tax or penalty, the principle is, that where one owning an estate dies, that estate is to be as&essed in accord- ance with the provisions of the act and the tax to be paid for the right of inheritance. The amount reserved to the State from the estate of a deceased owner is not a tax on the estate, but on the right of succession. By the provisions of the constitution of 1870, (Art. 9, Sec. 1), it is provided: *The General Assembly shall provide such revenue as may be needful by levying a tax, by valuation, so that every person and corporation shall pay a tax in proportion to the value of his, her or its property, such value to be ascertained by some person or persons to be elected or appointed in such manner as the General Assem- bly shall direct, and not otherwise; but the General Assembly shall have power to tax peddlers, auction- eers., brokers, hawkers, merchants, commission mer- chants, showmen, jugglers, inn-keepers, grocery keepers, liquor dealers, toll bridges, ferries, insur- ance, telegraph and express interests or business, vendors of patents and persons or corporations own- 8 ing or using franchises and privileges, in such man- ner as it shall from time to time direct by general law, uniform as to the class upon which it operates.' And Section 2 provides: ^The specification of the objects and subjects of taxation shall not deprive the General Assembly of the power to require other subjects or objects to be taxed in such manner as may be consistent with the principles, of taxation fixed in this constitution.' Under these provisions of the constitution it is in- sisted that the levy of the succession tax which is required to be made by valuation, so that every per- son and corporation shall pay a tax in proportion to the value of his, her or its property, and that such law shall be uniform as to the class upon which it operates, is defeated by the provisions of the stat- ute above quoted. That statute provides certain classes of property which were a part of an estate shall be exempt from taxation under these provi- sions, and when the legislature provides other classes of property, s.ome of which shall pay one dol- lar per hundred, others two, others three and others four, and still others five, and again others six dol- lars per hundred, six different classes are created, under and by which a tax is levied by valuation on the right of succession to a separate class, of prop- erty. The class on which a tax is thus levied is gen- eral and uniform, and pertains to all species of property included within that class. A tax which affects the property within a specific class is uni- form as to that class, and there is no provision of the constitution which precludes legislative action from assessing a tax on that particular class. By this act of the legislature six classes of property are created heretofore absolutely unknown. It is those classes of property depending upon the estate owned by one dying possessed thereof which the State may regulate as to its descent and the right to devise. The tax assessed on classes thus created is abso- lutely uniform on the classes upon which it operates, and under the provisions, of the statute is to be de- termined by valuation, so that every person and cor- poration shall pay a tax in proportion to the value of his, her or its property inherited, and is not in- consistent with the principle of taxation fixed by the constitution, and is clearly within the sections of the constitution quoted. No want of uniformity with one living who owned property can be urged as a reason why the statute makes an inconsistent rule. No person inherits, property or can take by devise except by the statute, and the State, having power to regulate this question, may create classes and pro- vide for uniformity with reference to classes which were before unknown. * * * We hold the act entitled *An act to tax gifts, lega- cies and inheritances in certain cases, and to provide for the collection of same,' approved June 15, 1895, to be consistent with the constitution of the State of Illinois." 10. Illinois Law of 1895 Held Constitutional by the United States Supreme Court. The question of constitutionality of the Law of 1895 was determined in Magoun v. Illinois Trust and Savings Bank, 170 U. S. 283. The opinion of the Court with ref- erence to the history, classification of exemptions, state's right to regulate succession, and constitutionality of the Law, is in part : *^ Legacy and inheritance taxes are not new in our laws. They have existed in Pennsylvania for over sixty years and have been enacted in other states. They are not new in the laws of other countries. In State V. Alston, 94 Tenn. 674, Judge Wilkes gave a short history of them as follows : * Such taxes were recognized by the Roman Law. Gibbon's Decline and Fall of the Roman Empire, Vol. I, pp. 163-164. They were adopted in England in 1780 and have been much extended since that date. DowelPs His- tory of Taxation in England, 148; Acts 20, George III, C. 28; 45 George HI, c. 28; 16 and 17 Victoria, c. 51; Green v. Craft, 2 H. Bl. 30; Hill v. Atkinson, 2 Merivale 45 ; such taxes are now in force generally 10 in the countries of Europe. (Review of Reviews, Feb., 1893.) In the United States they were enacted in Pennsylvania in 1826 ; Maryland, 1844 ; Delaware, 1869; West Virginia, 1887, and still more recently in Connecticut, New Jersey, Ohio, Maine, Massachu- setts, 1891; Tennessee in 1891, chapter 25, now re- pealed by chapter 174, Acts 1893. They were adopted in North Carolina in 1846, but repealed in 1883. Were enacted in Virginia in 1844, repealed in 1855, re-enacted in 1863, and repealed in 1884'. Other states have also enacted them, Minnesota by constitutional provision. The constitutionality of the taxes have been de- clared, and the principles upon which they are based explained in U, 8. v. Perkins, 163 U. S. 625, 628; Strode v. Commonwealth, 52 Penn. St. 181; Eyre v. Jacob, 14 Grat. 422; Schoolfield v. Lynchburg, 78 Virginia, 366 ; State v. Dairy mple, 70 Maryland, 294 ; Clapp V. Mason, 94 U. S. 589; in re Merriam's Es- tate, 141 N. Y. 479; State v. Hamlin, 86 Maine, 495; State y. Alston, 94 Tenn. 674; In re Wilmerding, 117 Cal. 281; Dos Passos Collateral Inheritance Tax, 20; Minot V. Winthrop, 162 Mass. 113; Gelsthorpe v. Furnell (Montana), 51 Pac. Rep. 267. See also Scholey v. Rew, 23 Wall. 331. It is not necessary to review these cases or state at length the reasoning by which they are supported. They are based on two principles : 1. Any inherit- ance Tax is not one on property, but one on the s.uc- cession. 2. The right to take property by devise or descent is the creature of the law, and not a natural right — a privilege, and therefore the authority which confers it may impose conditions upon it. From these principles it is deduced that the states may tax the privilege, discriminate between relatives, and be- tween these and strangers, and grant exemptions; and are not precluded from this power by the provi- sions of the respective state constitutions requiring uniformity and equality of taxation. The second principle was given prominence in the arguments at bar. The appellee claimed that the power of the State could be exerted to the extent of making the State the heir to everybody, and the ap- 11 pellant asserted a natural right of children to in- herit. Of the former proposition we are not re- quired to express an opinion. Nor indeed of the lat- ter, for appellant conceded that testamentary dispo- sition and inheritance were subject to regulation. However, as pertinent to the subject, decisions of this Court may be cited. In U, 8, V. Fox, 94 U. S. 315, 320, a law of the State of New York confining devises to natural persons and corporations created under its laws was consid- ered, and a devise of land to the United States was held void. The Court said : * The power of the State to regulate the tenure of real property within her limits, and the modes of its acquisition and transfer, and the rules of its descent, and the extent to which a testamentary disposition of it may be exercised by its owners, is undoubted. It is an established principle of law, everywhere recognized, arising from the necessity of the case, that the disposi- tion of immovable property, whether by deed, descent or any other mode, is exclusively sub- ject to the government within whose jurisdic- tion the property is situated. McCormick v. SuUivmt, 10 Wheat. 202. .. . Statutes of Wills, as. is justly observed by the Court of Ap- peals, are enabling acts, and prior to the statute of 32 Henry VIII there was no general power at common law to devise lands. The power was opposed to the feudal policy of holding lands in- alienable without the consent of the lord. The English Statute of Wills became a part of the law of New York upon the adoption of her con- stitution in 1777 ; and, with some modification in its language, remains so at this day. Every per- son must, therefore, devise his lands in that State witlain the limitations of the statute or he cannot devise them at all. His power is bounded by its conditions.' It is apparent that the mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of the Fourteenth Amendment, 12 and that in all cases it must appear not only that a classification has, been made, but also that it is one based upon some reasonable ground — some differ- ence which bears a just and proper relation to the at- tempted classification and is not a mere arbitrary selection. Two principles, therefore, must be reconciled in the Illinois Inheritance Law if it is to be sustained, the equality of protection of the laws guaranteed by the Fourteenth Amendment, and the power of the State to classify persons and property. The latter principle needs further consideration. What test is there of the reasonableness of a classification — of one based upon ^ some difference which bears a just and proper relation to the attempted classification — and is not a mere arbitrary selection? Legislation, special in character is. not forbidden by it, as we have seen. Treating mechanics as a class, and giv- ing them a lien for the amount of their work, has been held reasonable. Charging a railroad corpora- tion and not other corporations or persons with an attorney ^s fee has been held unreasonable, yet the former would seem to be as much an exclusive favor as the latter an exclusive burden. Of taxation, and the case at bar is of taxation, Mr. Justice Bradley said in the BelVs Gap Railroad v. Pennsylvania, 134 U. S. 232, and Mr. Chief Justice Fuller in Giozza v. Tierman, 148 U. S. 657, that the Fourteenth Amendment was not intended to compel the State to adopt an iron rule of equal taxation. The range of the State's power was expressed by Mr. Justice Bradley as follows : 'It may, if it chooses, exempt certain classes of property from any taxation at all, such aa churches, libraries and the property of charita- ble institutions. It may impose different specific taxes upon different trades and professions, and vary the rates of excise upon various products ; it may tax real estate and personal property in a different manner ; it may tax visible property only, and not tax securities for payment of money; it may allow deductions for indebted- 13 ness or not allow them. All such regulations, and those of like character, so long as they pro- ceed within reasonable limits and general usage, are within the discretion of the State Legisla- ture, or the People of the State framing their constitution \ # # * There is, therefore, no precise applica- tion of the rule of reasonableness of classification, and the rule of equality permits many practical in- equalities. And necessarily so. In a classification for governmental purposes there cannot be an exact exclusion or inclusion of persons and things. Bear- ing these considerations, in mind we can solve the questions in controversy. There are three main classes in the Illinois stat- ute, the first and second being based, respectively, on lineal and collateral relationship to the testator or intestate, and the third being composed of strangers, to his blood and distant relatives. The latter is again divided into four subclasses depend- ent upon the amount of the estate received. The first two classes, therefore, depend upon substantial differences, diiferences which may distinguish them from each other and them or either of them from the other classes. — differences, therefore, which ^bear a just and proper relation to the attempted classifica- tion' — the rule expressed in the Gulfj Colorado & Santa Fe Railway v. Ellis, 165 U. S. 150. And if the constituents of each class are affected alike, the rule of equality prescribed by the cases is satisfied. In other words, the law operates, ^equally and uni- formly upon all persons in similar circumstances.' We think the classification of the Illinois Law was in the power of the Legislature to make." 11. Amendment 1901 — Illinois. In 1901, the Act of 1895 was amended to extend exemp- tions to certain educational, religious, charitable and be- nevolent bequests., and also included a section (21J) in- tended to afford a remedy to quiet the question of taxa- bility, other than by the method of appraisement. 14 12. Illinois Law in Force July 1 at, 1909. In 1909 the Legislature revised the Inheritance Tax Law, increasing rates and adding new provisions. Most of the provisions of the Illinois Law of 1909 were taken from the Transfer Tax Laws of New York, in force at that time. 13. Scope of the Law. The State is interested as a beneficiary in every trans- fer of property by death, whether the transfer is effected by will, intestate laws., or by deed, grant, gift or trans- fer in the lifetime of the grantor or donor, as provided by Section 1, Laws 1909. National Safe Deposit Com- pany v. Stead, 250 111. 584. 14. State's Interest. **The State's interest is a vested interest equal in de- gree to any beneficiary and accrues at the death of dece- dent." Re Graves, 242 111. 212-216. The California Court in estate of Stanford, 126 Cal. 112, described the State's interest as follows: << # * * The Legislature * ♦ * having de- termined that 95% of decedent's estate may go to his heirs, and beneficiaries, and that 5% be retained to the state, it is too clear for argument that this 5% vested in the state at the same time that the 95% vested in the heirs or other beneficiaries ' '. 15. Right to Take Property Is Regulated by the State. The right to take property by devise or descent is not a natural right, but is a creature of the law. The Legis- lature can provide that the whole, or only a portion of decedent's property shall go to his heirs or beneficiaries. The Legislature has. provided by law (Inheritance Tax 15 Law 1895-1909) that the State shall receive a portion of a decedent's property. Kochersperger v. Drake, 167 111. 122 ; Magoun v. III. Trust & Savings Bank, 170 U. S. 283; Billings v. People, 189 111. 472; Re Graves, 242 111. 212; National Safe Deposit Co, v. Stead, 250 111. 584. 16. Canstructioii'^In Favor of the Taxpayer. In construing special laws the general rule is to favor the citizen as against the State. Matter of Enston, 113 N. Y. 174; 21 N. E. 87; 3 L. R. A. 464; Matter of Vassar, 127 N. Y. 1; 27 N. E. 394; Matter of Stewart, 131 N. Y. 274; 30 N. E. 278; Matter of Fayerweather, 143 N. Y. 114; 38 N. E. 278; Matter of Harbeck, 161 K Y. 211; 55 N. E. 850. 17. Wlien Against the Citizen. This general rule, however, is not applicable to per- sona or corporations claiming exemption. The claimant must show wherein the statute provides the exemption. Matter of Moore, 90 Hun 162; 35 N. Y. S. 782. 18. Tax — Controlled by Statnte in Force at Death of Decedent. The rights of parties and the tax itself is governed by the statute in force at the time of that death which effects the transfer. Matter of Sloane, 154 N. Y. 109. 19. Intestate Laws— Meaning; of. ** There are no laws of this State which are spe- cifically designated as intestate laws^ and we are called upon to determine what laws or system of laws were referred to under that appellation by the act in question (Illinois Act, 1895). The same term is employed in similar statutes in other states and we have no doubt the laws referred to are those laws of the state which govern the devolution of estates 16 of persons dying intestate and include all applicable rules, of the common law in force in this state.'' Billings v. The People, 189 111. 472. 20. Succession — Is Governed by the La-w of Domi- cile. In Russell v. Madden, 95 111. 485, it was decided : **The doctrine is that the succession to personal property is governed by the law of the actual domi- cile of the intestate at the time of his death, no mat- ter what was the country of his birth, or his former domicile or the actual situs of the property at the time of his death ' \ In Young v. Wittenmyre, 123 111. 303, the Court, citing Jenison v. Hapgood, 10 Pick. 77, stated the rule to be that the lex domicilii and not lex rei sitae must govern in the distribution of the personal estate of a deceased person among his heirs or legatees, whether he died tes- tate or intestate. Also see re Swift, 137 N. Y. 77. 21. Succession— Governed by "La^xr of Domicile. Succession is governed by the law of the domicile re- gardless of the tangible location of personal property. In Frothingham v. Shaw, 175 Mass. 59, the Court held on this, question, as follows : *^But whatever the form of tax is, the succession takes place and is governed by the law of the domi- cile ; and if the actual situs is in a foreign country, the courts of that country cannot annul the succes- sion established by the law of New York {Bammert V. shorn, 141 N. Y. 564). In further illustration of the question, of the extent to which the law of the domicile operates, it is to be noted that the domicile is regarded as. the place of principal administration and any other administration is ancillary. * * 17 22. Successian — Governed by Law of Domicile. The property of a resident of New York, located with- out that State at the time of the owner's death, adminis- tered and distributed within that State, is chargeable with the transfer tax under Section 220, L. 1896. Mat- ter of Dingnian, 66 App. Div. (N. Y.) 228; Matter of Greene, 153 N. Y. 223. 23. Succession — Cannot be Gkansed by Compro- mise among Beneficiaries. Money Paid in Compromise not a Deduction Where a compromise was made between the residuary legatees and a disinherited relative, whereby said rela- tive, pursuant to an agreement with the residuary lega- tees, received from the executors, the sum of $50,000.00, in consideration of refraining from contesting the val- idity of the will, said sum of $50,000.00 was taxable to the residuary legatees and devisees; the disinherited relative did not succeed to said sum under the will, but took same by assignment from said residuary legatees and devisees. Said sum of $50,000.00 is not a legal de- duction from the estate of decedent to be subtracted be- fore the Inheritance Tax is imposed. Re Graves, 242 ni. 212; Baxter v. Stevens, 95 N. E. 854; Re Sanford's Estate, 133 N. W. 870 (Neb.) 24. Compromise of "Will Contest— Does not Af- fect Laiv of Succession. Frederick Cook died testate, February 17th, 1905, a resident of the State of New York, leaving him surviving a widow and an adopted child. By the 38th paragraph of his will, the residue of the estate was given to various nephews and nieces. When the will was offered for pro- bate the widow and an adopted daughter filed objections 18 which raised an issue as to testamentary ^.apacity. Pending the probate a compromise was arrived at which was effected by certain instruments executed by the widow and each of the residuary legatees, whereby, for a good and sufficient consideration, said residuary legatees as- signed and transferred all their right, title and interest in and to the residuary estate of Frederick Cook, ac- cruing to them by virtue of the provisions of paragraph 38 of his will, to the widow. Thereupon objections to the probate were withdrawn and the will was proved. In an Inheritance Tax appraisement it was contended by executors that the widow succeeded to the residuary estate and that the nephews and nieces did not succeed to said estate and that the latter should not be taxed at a 5% rate. The Court held, that the compromise be- tween the residuary legatees and the widow affected in no wise the laws of succession of the State of New York; that the nephews and nieces, as residuary legatees re- ceived the residuary estate under paragraph 38 of the will, and that the widow took said property by assign- ment from them. Matter of Cook, 187 N. Y. 253. 25. Curtesy — Does not Pass by "Will or Intestate Maria E. Green died intestate a resident of the State of New York, leaving her surviving a husband and no descendants. It was urged by the Comptroller that the husband took his right of curtesy by the intestate laws of the State of New York. The Court held: **The words * intestate laws' refer to statutes governing descent and distribution of a decedent's property. That statute is the law's will for the dis- position of property when its owner dies without a will. Upon inspection to discover what interest it transfers, it is found that it does not transfer an 19 estate by the curtesy, hut disclaims any effect upon such an estate. That is, it leaves it untouched as a matter that does not concern it, hence the taxing statute does not include iV\ In short, the husband's right of curtesy does not pass by intestate laws, and therefore is not taxable. Greenes Estate, 129 N. Y. S. 54; See Matter Starbuch, 137 App. Div. (N. Y.) 866. 26. General Revenne Laxr— -Decisions under not necessarily in Point in Inheritance Tax Cases. The taxable transfer law has no reference or relation to the general law * * * While the object of both is to raise revenue for the support of the government they have nothing else in common. * * * it (trans- fer tax law) proceeds upon a new theory of the right of the government to tax, and establishes a new system of taxation. It taxes the right of succession to property. All property having an appraisable value must be con- sidered whether it is such as might be taxed under the general law or not. Many kinds of property might be enumerated which are not assessable under the general law but are taxable under the Inheritance Tax Law. Re Knoedler, 140 N. Y. 377; People v. Grifp^th, 245 HI. 532. 27. Transfer Tax Act of 1892 (New York) not Retroactive. Eobert A. Forsyth died testate, November 25, 1873, transferring the sum of $250,000.00 in trust, the income therefrom to be paid to his widow during her lifetime. At the death of the widow the trustees were directed to pay from said fund the sum of $40,000.00 to the children 20 of Isabelle Little, a deceased sister, or the descendants of such sister as should be living at that time. Caroline W. Forsyth, widow of testator died October 26th, 1893, and an appraiser was appointed to assess a tax upon the succession to said fund of $40,000.00 under the third subdivision, Sec. 1, ch. 399, L. 1892, which reads as fol- lows: ''Such tax shall also be imposed when any such person or corporation becomes beneficially entitled in possession or expectancy to any property or the income thereof by any such transfer, whether made before or after the passage of this AoV\ The Court Held: ''In this case the legatees became beneficially en- titled to their rights in the testator *s property at his death in the year 1873. At the time of that event, the transfer by the will of their beneficial interest occurred while they only became entitled to actual possession of the property at the death of the widow. The transfer of the beneficial interest hav- ing occurred before the passage of this or the pre- vious acts (Inhertance Tax Acts), it is not subject to the tax under the act (1892) which law is not in- tended to be retroactive. To conclude that in this case the act was intended to be retroactive would be to extend its effect beyond the scope of the remain- der and principal part of the act, which is not a necessary construction and is improbable '\ Mat- ter of Forsyth, 10 Misc. Rep. (N. Y.) 477. 28. Remainders Created Prior to Tax Laxir Are not Taxable by Subsequent Enactment. Walden Pell, Sr., died testate a resident of the City of New York, April 14th, 1863, creating by will a life estate in all his property to his widow with remainders over at her death, in equal shares, to his nephews and nieces and the issue of any deceased nephew and niece. 21 together with one equal share to decedent's sister, Emma. The widow of decedent died December 2(>th, 1899, at which time all the estates in remainder came into actual possession and enjoyment of the beneficiaries under the will and codicil. The comptroller of New York asked for a tax upon the successions of the nephews and nieces, etc., which came into actual possession by the death of the widow under Chap. 76, Laws 1899, which reads as follows: **A11 estates upon remainder or reversion, which vested prior to June 30, 1885, but which will not come into actual possession or enjoyment of the person or corporation beneficially interested therein until after the passage of this Act, shall be ap- praised and taxed as soon as the person or corpora- tion beneficially interested therein shall be entitled to the actual possession or enjoyment thereof. The amendment of 1899 became a law March 14th, of that year and the life tenant died the following Decem- ber. It was conceded that the remainders were con- trolled by this amendment if the same was a valid ex- ercise of legislative power. The constitutionality of the law was not affected simply because it was retroactive but for the reason that it was both retroactive and im- paired vested rights. The Court held: **The legislation of 1899, now under considera- tion, obviously preceeds upon a misapprehension of the effect of the absolute vesting of a remainder. Expectant future estates as defined in the statute expressly include all remainders, whether vested or contingent, and they are by statute descendible, de- visable and alienable. This Court and the Supreme Court of the United States have held in numerous) cases that the transfer tax is not imposed upon the property but upon the right of succession. It therefore follows that where there was a complete 22 vesting of a residuary estate before the enactment of the transfer tax statute, it cannot be reached by that form of taxation. In the case before us it isi an undisputed fact this remainder had vested in 1863/' Matter of Pell, 171 N. Y. 48; Matter of Pell, 60 App. Div. (N. Y.) 286, reversed. 29. When State Supreme Court Final on Matters of Taxation. Cleveland Trust Co, v. Lander, 184 U. S. 111. 23 CHAPTER II. Property Within the State — Transfers Taxable — Statutory Exemptions — Bates of Tax. 30. Section One, Illinois Law of 1895. 31. Section One, Illinois Law in force July 1st, 1909. 32. Transfer Defined. 33. Transfer — Eights and rates de- termined as of death. 34. Transfer— Time of. 35. Transfer — A cceptance of Transfer is necessary. 36. Transfer — When a widow ac- cepts devise in lieu of dower. 37. Transfer — Bequest to pay a debt. 38. Trustee's fees joined with an- nuity is taxable bequest. 39. Transfer — Must be something of value. Worthless account. 40. When the Imposition of a tax must be postponed (Laws 1895). 41. Eemainder — When contingent cannot be presently taxed. 42. Eemainder — Is Vested When (Laws 1895). 43. Eemainders — Tax Payable at Testator's death. 44. Eemainders — Defeasible es- tates not taxable until in- defeasible. 45. Eemainders — Created prior to Tax Legislation are not taxable. 46. Dower and Curtesy not Taxa- ble and must be subtracted from property chargeable therewith. 47. Dower — Is Taxable in Illinois under Act of 1895. 48. Award. 49. Ante-nuptial contract — when taxable. 50. Ante-nuptial c o n t r a c t — not taxable. 51. Ante-nuptial contract to make a will — transfer is by will and taxable. 52. Advancements — Taxable under Federal Inheritance Tax Law. 53. Community Property — Califor- nia Statute taxing same does not impair Obligation of Contract. 54. Gifts Inter Vivos— When Not Perfected. 55. Paragraph One, Section One, Illinois Law. 56. Equitable Conversion — Gen- eral. 57. Equitable Conversion Not Ap- plicable to Subject Property to Taxation. 58. Personal Property — Testa- mentary Direction to Con- vert Eeal into Personal Property. 59. Property Physically Situate at Domicile of Owner. 60. Leasehold Interest. 61. Domicile Within the State — Chattels Without the State. 62. Property in Foreign State — Taxable at Domicile of De- cedent. 63. Personal Property— Share in a Joint Stock Association Owning Eeal Estate. 64. Life Insurance — Payable to Legal Eepresentatives or Assigns. 65. United States Bonds — ^When Not Taxable. 66. United States Bonds — When Taxable. 67. United States Bonds— When Taxable. 68. Paragraph Two, Section One, Illinois Law. 69. Non-residents' Property situ- ate in New York Not Tax- able Under Act of 1885. 70. Property Within the State- When Taxable. 71. Property Within the State — Anc i 1 1 a r y Administration Cannot be Invoked to In- crease Tax. Mortgage De- ducted. 24 72. Eeal Estate — United States 89. and Other Bonds — Cash and Notes Within the State. 73. Stocks and Bonds of Domestic Corporations Taxable in Illi- 90. nois — Stocks and Bonds of Foreign Corporations Not 91. Taxable (L. 1895). 74. Stock of Domestic Corpora- 92. tions— Owned by Non-resi- dent Decedent. 93. 75. Stock and Bonds of a Domestic Corporation — Non-resident Owner — Held as Collateral. 94. 76. Stock — Certificates and Own- er 's Eesidence "Without Taxing State. 95. 77. Stock Decedent a Non-res- ident and Certificates With- 96. out the Taxing State. 78. Stock — Certificates and Own- 97. er's Eesidence Without the Taxing State — Taxable. 98. 79. Situs of Stock for Taxation. 80. Stock of New Jersey Corpora- tion — Not Taxable When Owner Dies Non-resident. 99. 81. Stock — Certificates and Own- er 's Eesidence Without Taxing State. 82. Stock — Decedent a Non-resi- 100. dent — Certificates Without loi. the Taxing State — Sole Ad- ministration in Foreign Ju- risdiction and Closed Before Tax Paid in New York. io2. 83. Stock— Issued by Corporation With Property in Two States — Shares Taxable at Full Value. National Bank 103. Stock. 84. Stock of Corporation Organ- ized in One State — ^Property 104. of Corporation in Several States. 85. Stock of a Corporation Organ- io5. ized in Two or More States — Taxable on Proportion of 106. Property. 86. Mileage is a Basis to Deter- mine Proportion — But Is ^^^ Not the Only Basis. 87. Stock of Corporation with l^^- Property in two or more States — Proportion Taxable. 88. Stock — Non-resident — Pro- portionate Value Taxable. J 109. Stock — Non-resident Owner- ship Eequires Ancillary Ad- ministration in Taxing State. Stock of National Banks — Taxable. Stock of Foreign Corporations — Not Taxable. Stock of Foreign Corporation — Not Taxable. Bonds of Foreign Corporation and Stock of National Bank Within the State. Bonds of Foreign and Domes- tic Corporations — Stock of Domestic Corporation. United States Bonds— Stock of Foreign Corporations. Bonds — ^Foreign — When Taxa- ble. United States Bonds — ^When Not Taxable. Bonds and Stock of Domestic Corporations Owned by Non- resident and Situate With- out the State. Bonds Held out of New York secured by mortgage on land in New York — Not Taxable. Notes Secured by Mortgage. Notes — ^When Situate at Dom- icile of Non-resident of Massachusetts, but secured by Eeal Estate Therein. Property Taxable in Two States — Money Deposited in New York — Depositor Eesi- dent of Illinois. Money — D epositedin New York State for Nearly Two Months — Taxable. Money of Non-resident Dece- dent on Deposit in New York — Trust Account. Notes Secured by Mortgage Taxable in Michigan. Notes Secured by Mortgage on Lands in Michigan Subject to Taxation. Land Contracts. Non-resident — Capital Invest- ed in Business in New York — Stock Exchange Member- ship Taxable. Partnership Property. 25 110. Partnership— Assets in New York and Illinois. 111. Non-resident Decedent Pos- sessed of Legacy in New York Estate. 112. Share of Eesident Decedent in Undistributed Foreign As- sets. 113. Deceased Non-resident ^s In- terest in Eesident Dece- dent's Estate. 114. Non-resident Decedent a Ben- eficiary in Unliquidated As- sets Within the State. 115. Credits of Non-resident in Taxing State— When Taxa- ble. 116. Tax Paid to United States Under Federal Inheritance Tax Law and Tax Paid to the State of Montana Does Not Affect Taxation in the State of New York. 117. Non-resident — When Property in Taxing State is Equalled by Indebtedness. 118. Insurance — Domestic Policy on Life of Non-resident not taxable. 119. Insurance — Domestic Policies on Life of Nonresident Not Taxable. 120. Contract for Sale of Land in Nebraska — Owner a Eesi- dent of New York. 121. Nonresident Estate — Distribu- tion by Executors Cannot Avoid Taxation. 122. Nonresident Estate — Distribu- tion by Administrator Can- not Avoid Taxation— Proj- portion of Indebtedness De- ductible. 123. Distribution of Property of Nonresident Cannot Eeduce Tax. Pro Eata Distribu- tion. 124. Nonresidents — Property in Taxing State Pro Eated for Taxation. Executors Can- not Distribute so as to Ee- duce Tax. 125. Paragraph Three, Section One, Illinois Law. 126. Transfer in Contemplation of Death. 127. Transfer in Contemplation of Death. 128. Transfer in Contemplation of Death — Act Imposing Tax Constitutional. 129. Transfer— When Not in Con- templation of Death. 130. Transfer to Take Effect after Death — a Writing Not Nec- essary to Evidence Eeten- tion of Income. 131. Transfer to Take Effect after Death— When Taxable. 132. Transfer Prior to Death — When Taxable. 134. Transfer— To Take Effect at or After Death. 135. Transfer— To Take Effect at or after Death. 136. Transfer to take effect at Death. 137. Transfer — Intended to Take Effect at Death of Donor. 138. Transfer Prior to Death — ^Ee- servation of Income by oral Arrangement. 139. Transfer Prior to Death — When Taxable. 140. Cases in Which Transfers were Held Not Taxable. 141. Transfer— Intention to Defeat the Tax. 142. Transfer — Taxation is Imposed at Time of Death of the Grantor. 143. Transfer by Deed Prior to In- heritance Tax Law — ^When Taxable. 144. Other cases wherein the ques- tion of tax is raised on transfers prior to death. 145. Paragraph Four, Section One, Illinois Law. 146. Power of Appointment — ^When Created by will of decedent who died prior to tax legis- lation — real estate converted into Personalty before Transfer. 147. Power of Appointment — Transfer is Effected by Ex- ercise of Power. 148. Power of Appointment Created by will of Testator who died prior to tax Legislation. 26 149. Tax on Transfer Effected by Power Created under will before tax Legislation Con- stitutional. 150. Power of Appointment — ^When Situs of Property Immater- ial. 151. Tax on Transfer Effected by Exercise of a Power created Prior to Tax Legislation Constitutional. 152. Power of Appointment — When Erroneous Prior Assignment Does Not Preclude Tax on Transfer by the Exercise of the Power. 153. Power of Appointment — Eeal Estate in New York Ap- pointment by Nonresident Donee Taxable. 154. Donee and Appointee Nonresi- dent — Property within the State. 155. Mortgages held Outside State Transfer by Nonresident un- der Testamentary Power Created by will of deceased resident of New York. 156. Power of Appointment — When Not Exercised. 157. When Appointee Takes under will creating Power and not by exercise of power. 158. When Exercise of Power is Mere Form Beneficiary Takes by Will Creating Power. 159. When Appointee Elects to Take by Will instead of Power. 160. Value of Property Not Dimin- ished by Life Estate Pre- viously Taxed. 161. Eelationship of Donee of Pow- er to Appointee Determines Eate of Tax. 162. Eate of Taxation Governed by Law in Force at the Time of the Exercise of the Pow- er. 163. Exceptions — Eelationship — Eates of Tax — When Tax Acrues — All Questions De- termined as of Date of Transfer. 142. Tax Accrues at Death of De- cedent. 165. Beneficial Interest — Transfer Must Be Effected While Tax Law is in Force. 166. Eate of Tax Determined by Eelationship. 167. Exemption. 168. Exemption — Statutory Exemp- tion Eelates to the Share of Beneficiary. 169. Exemptions — Claimant Must Show Exemption. 170. Exemptions — not favored. 171. Lineal Descendants — Children of Adopted Child. 172. Particular Eates of Taxation and Exemptions under the Illinois Law in Force July 1st, 1895. 173. Transfers Under the Illinois Law Effected Prior to July 1st, 1909 — Eates and Eights of the Parties. 174. Illinois Law in force July 1st, 1909 — Eates and Exemp- tions. 175. Husband of a Daughter who died before Testator. 176. When Husband of Deceased Daughter is remarried. 177. Widow of Adopted son is ^* Widow of a Son.'' 178. Adoption — When Effected in Foreign State Entitles Bene- ficiary to Exemption. 179. Children of an Adopted Child are *^ Lineal" Descendants of decedent. 180. Child of Adopted child— When Taxable. 181. Eelation of Parent to Benefi- ciary — Must be Clearly Shown. 182. Acknowledged Eelation of Par- ent. 183. Parent and Child — Mutually Acknowledged Eelation. 184. Children of Parent to whom Decedent stood in Eelation of Parent — Stranger in Blood. 185. Children of Person to whom Decedent Stood in Eelation of Parent are Taxable. 186. Act of 1909 (Illinois) Limits Exemption. 187. Both Parents must be dead — Stepchild a stranger. 27 188. Grandmother not a *' Lineal Decendanf — Taxable as Stranger. 189. Second Class Beneficiaries — Uncle, Aunt, Niece or Nephew, or any Lineal De- scendant of the same. 190. Contra. 191. Third Class — Strangers in Blood, etc. 192. Exemptions — $500 a Limita- tion, not an Exemption. 193. Exemptions — $500 a Limita- tion. 30. Section 1. Inlieritance Tax Law of Illinois, in Force July 1st, 1895. Section 1. All property, real, personal and mixed shall pass by will or by the intestate laws of this State from any person who may die seized or possessed of the same while a resident of this State or, if decedent was not a resident of this State at the time of his death, which property or any part thereof shall be within this State or any interest therein or income therefrom, which shall be trans- ferred by deed, grant, sale or gift made in contem- plation of the death of the grantor or bargainor or intended to take effect, in possession or enjoyment after such death, to any person or persons or to any body politic or corporate in trust or otherwise, or by reason whereof any person or body politic or corporate shall become beneficially entitled in pos- session or expectation to any property or income thereof, shall be, and is, subject to a tax at the rate hereinafter specified to be paid to the treasurer of the proper county for the use of the State, and all heirs, legatees, devisees, administrators, executors and trustees shall be liable for any and all such taxes until the same shall have been paid as herein- after directed. When the beneficial interests to any property or income therefrom shall pass to or for the use of any father, mother, husband, wife, child, brother, sister, wife or widow of the son or the hus- band of the daughter, or any child or children adopted as such in conformity with the laws of the State of Illinois, or to any person to whom the de- ceased, for not less than ten years prior to death, stood in the acknowledged relation of a parent, or to any lineal descendant born in lawful wedlock, in every such case, the rate of tax shall be one dollar 28 on every hundred dollars of the clear market value of such property received by each person and at and after the same rate for every less amount, provided that any estate which may be valued at a less sum than twenty thousand dollars shall not be subject to any such duty or taxes, and the tax is to be levied in above cases only upon the excess of twenty thou- sand dollars received by each person. When the beneficial interests to any property or income there- from shall pass to or for the use of any uncle, aunt, niece, nephew or any lineal descendant of the same, in every such case the rate of such tax shall be two dollars on every one hundred dollars of the clear market value of such property received by each per- son on the excess of two thousand dollars so re- ceived by each person. In all other cases the rate shall be as follows: On each and every hundred dollars of the clear market value of all property and at the same rate for any less amount; on all estates of ten thousand dollars and less, three dol- lars; on all estates of over ten thousand dollars and not exceeding twenty thousand dollars, four dollars ; on all estates over twenty thousand dollars and not exceeding fifty thousand dollars, five dollars, and on all estates over fifty thousand dollars, six dollars: Provided, that an estate in the above case which may be valued at a less sum than five hundred dol- lars shall not be subject to any duty or tax. A revision and enlargement of this and other sections of the law of 1895 as amended in 1901 was effected by the Act to Tax Gifts, Legacies, Inheritances, Transfers, etc., in force July 1st, 1909, whereby the foregoing section was superseded by the following: 31. AN ACT to Tax Gifts, Legacies, Inlieritances, Transfers, Appointments and Interests in Certain Cases, and to Provide for tlie Col- lection of the Same, and Repealing Certain Acts Therein Named. Section 1. In force July 1st, 1909. A tax shall be and is hereby imposed upon the trans- 29 fer of any property, real, personal or mixed, or of any interest therein or income therefrom, in trust or otherwise, to persons, institutions or corporations, not hereinafter exempted, in the fol- lowing cases : 1. When the transfer is by will or by the intestate laws of this State, from any person dying, seized or possessed of the property while a resident of the State. 2. When the transfer is by will or intestate laws of property within the State and the decedent was a non-resident of the State at the time of his death. 3. When the transfer is of property made by a resident, or by a non-resident when such non-resi- dent's property is within this State, by deed, grant, bargain, sale or gift, made in contemplation of the death of the grantor, vendor or donor, or intended to take effect m possesion or enjoyment at or after such death. When any such person, institution or corporation becomes beneficially entitled in posses- sion or expectancy to any property or the income therefrom, by any such transfer, whether made be- fore or after the passage of this Act. 4. Whenever any person, institution or corpora- tion shall exercise a power of appointment derived from any disposition of property made either before or after the passage of this Act, such appointment, when made, shall be deemed a taxable transfer un- der the provisions of this Act, in the same manner as though the property to which such appointment relates belonged absolutely to the donee of such power and had been bequeathed or devised by such donee by will ; and whenever any person or corpora- tion possessing such a power of appointment so derived shall omit or fail to exercise the same with- in the time provided therefor, in whole or in part, a transfer taxable under the provisions of this Act shall be deemed to take place to the extent of such omission or failure, in the same manner as though the persons or corporations thereby becoming en- titled to the possession or enjoyment of the prop- erty to which such power related had succeeded thereto by a will of the donee of the power failing 30 to exercise such power, taking effect at the time of such omission or failure. When the beneficial interests to any property or income therefrom shall pass to or for the use of any father, mother, husband, wife, child, brother, sister, wife or widow of the son, or the husband of the daughter, or any child or children adopted as such in conformity with the laws of the State of Illinois, or to any person to whom the deceased, for not less than ten years prior to death, stood in the acknowl- edged relation of a parent: Provided ^ however y such relationship began at or before said person's fifteenth birthday and was continuous for said ten years thereafter : And, provided, also, that the par- ents of such person so standing in such relation shall be deceased when such relationship com- menced, or to any lineal descendant of such dece- dent born in lawful wedlock. In every such case the rate of tax shall be two dollars on every one hun- dred dollars of the clear market value of such prop- erty received by each person, when the amount so received exceeds in amount the sum of one hundred thousand dollars, and one dollar on each one hun- dred dollars of the clear market value of such prop- erty received by each person when the amount so received is one hundred thousand dollars or less; and at and after the same rates, respectively, for every less amount : Provided, that any gift, legacy, inheritance, transfer, appointment or interest which may be valued at a less sum than twenty thousand dollars shall not be subject to any such duty or taxes, and the tax is to be levied in the above cases only upon the excess of twenty thousand dollars re- ceived by each person. When the beneficial interest to any property or income therefrom shall pa^s to or for the use of any uncle, aunt, niece or nephew or any lineal descendant of the same, in any such case the rate of such tax shall be four dollars on every one hundred dollars of the clear market value of such property received by each person on the excess of two thousand dollars so received by each person when the amount so received exceeds the sum of twenty thousand dollars; and two dollars on every 31 one hundred dollars of the clear market value of such property received by each person on the excess of two thousand dollars so received by each person when the amount so received is twenty thousand dollars or less. In all other cases the rate shall be as follows : On each and every one hundred dollars of the clear market value of all property and at the same rate for any less amount; on all transfers of ten thou- sand dollars and less, three dollars ; on all transfers over ten thousand dollars and not exceeding twenty thousand dollars, four dollars ; on all transfers over twenty thousand dollars and not exceeding fifty thousand dollars, ^ve dollars; on all transfers over fifty thousand dollars and not exceeding one hun- dred thousand dollars, six, dollars ; and on all trans- fers over one hundred thousand dollars, ten dollars : Provided, that any gift, legacy, inheritance, trans- fer, appointment or interest which may be valued at a less sum than five hundred dollars shall not be subject to any duty or tax. 32. Transfer—Defined. In defining the meaning of the word *' transfer" un- der the Inheritance Tax Laws of New York 1892 Ch. 399, the Court said: **It is certainly within the constitutional power of the Legislature to tax all property transferred by will, whether the motive of the testator be to make a gift or to pay a debt, and the language, absolutely unambiguous and free from saving clauses, which the Legislature employs, affords the best indication that the word * transfer' in the stat- ute is used advisedly and according to its ordinary legal signification, which is, that the owner of a thing delivers it to another with the intent of passing the rights which he has in it to the latter. '' Matter of Gould, 156 N. Y. 423. 33. Transfer — Rights and Rates Determined as of Death. All rights and interests comprehended by the Inherit- 32 ance Tax Law are to be determined as of the time of that death which effects the transfer. Ayers v. Title db Trust Co., 147 111. 42. Matter of Graves, 242 111. 212. National Safe Deposit Co, v. Stead, 250 HI. 584. Billings v. People, 189 111. 472. Matter of BucUngham, 106 App. Div. (N. Y.) IS". McCurdy v. McCurdy, 83 N. E. (Mass.) 881. Re Howe, 86 App. Div. (N. Y.) 34. Transfer— -Time of. The date of the death of the decedent fixes the time when the transfer of title to a remainder is effected. The fact that uncertainty exists as to the person who will take snch remainder is immaterial. Matter of Sloane, 154 N. Y. 109. 35. Transfer — Acceptance of Transfer is Neces- sary. The motive of the transfer is not material. If the object of the bequest is to pay a debt, discharge a moral obligation, or benefit some relative for whom the tes- tator entertains a strong affection, the transfer is effected by will, if the bequest is accepted and the State is entitled to a tax. Matter of Gould, 156 N. Y. 423. 36. Transfer — When a Widoixr Accepts Devise in liieu of Doiver. By the will of Stuyvesant, his widow was bequeathed certain property in lieu of dower. She failed to re- nounce the will which provided for a devise to her of one-third of the residue. It was contended that she was entitled to dower, in addition to the testamentary pro- vision. The Court held that the direction as to the 33 residuary estate was inconsistent with any intention on the part of the testator that the widow should receive dower in addition to the testamentary provision. That inasmuch as the widow accepted this property under the will she was taxable on said transfer by the will. Al- though it is the law of New York that dower is not tax- able, on the ground that there is no transfer by will or intestate laws, yet if the party entitled to dower fails to elect and take her share of an estate as dower, but does in fact, take the property by will, such property is trans- mitted to her by the testamentary instrument and effects a taxable transfer. Re Stuyvesant's Estate, 131 N. Y. S. 197. 37. Transfer— Bequest to Pay a Debt. In a codicil to the last will of Gould, appears the fol- lowing : ^*My beloved son, having developed a remarkable business ability and having for twelve years de- voted himself entirely to my business, and during the past five years taken entire charge of all of the difficult interests, I hereby fix the value of said services at $5,000,000.00, payable as follows, *•*»', specifying a sum in cash and the balance in securities. In an appraisement for taxation under the New York Transfer Act of 1892 it was held that the testator in- tended to discharge an agreed debt to his son. The son accepted the said sum for his services under the codicil, and such acceptance constituted a transfer taxable under the law of 1892. Matter of Gould, 156 N. Y. 423. 38. Trustee's Fees Joined with Annuity is Taxa- ble Bequest. The will of Otto Huber contained the following pro- vision : *'I further direct that mv executor and trustee be 34 paid from my estate the sum of Fifteen Hundred Dollars annually, together with the commissions al- lowed by law, as long as he shall act as such ex- ecutor and trustee, the same to be received by him in full compensation for any and all services legal or otherwise, which he shall render my estate." Held, that an acceptance of such provision was an an- nuity subject to the inheritance tax under Section 227 of the Transfer Tax Law of 1896, Chap. 908. Matter of Evher, 80 App. Div. (N. Y.) 458. 39. Transfer^ — Must be Sometliing of Valne— Worthless Account. Decedent bequeathed his estate to his four children and widow. The appraiser fixed the net value of the estate at $244,000.00. On appeal to surrogate by ex- ecutor, the taxing order was modified by deducting from the above amount, an item of $17,000.00 which appeared as an open account upon the books of the deceased against his son G. Warren Manning, one of the legatees, and who was insolvent. The question arises whether this worthless account is to be deemed property transferred by will, within the meaning of the statute. The bequest to the son under the will was more than sufficient to pay it. Held, that the item of $17,000.00 does not represent property within a fair meaning of the statute. The tax is imposed on the shares taken by the beneficiary. This item would not add any property of value to the estate, and is not subject to tax. Affirming 59 App. Div. (N. Y.) 624. Matter of Manning, 169 N. Y. 449. 40. When the Imposition of a Tax Must be Post- poned (Laws 1895). When a beneficiary taking an interest in remainder 35 cannot be identified, or when the property limited can- not be measured or determined, the tax must be post- poned until the beneficiary becomes known or the prop- erty determinable. People v. McCormich, 208 111. 437. Also see Re Cooper, 127 Pa. 435; Re Roosevelt, 143 N. Y. 120; Re Hoffman, 143 N. Y. 334; Re Nieman, 131 Pa. 346. 41. Remainder — When Contingent Cannot be Presently Taxed People V. McCormick, (supra) ; Billings v. People, 189 111. 472. 42. Remainders — Are Vested "When (Laws 1895). Eemainders limited to persons to be determined by the laws of descent, or when limited to a class are con- sidered as vested. Ayers v. Chicago Title and Trust Company, 187 111. 42. 43. Remainder^ — Tax Payable at Testator's Death. The tax on a remainder, whether vested or contingent, is dne and payable at the time of the death of testator. Section 2 gives the remainderman the right to defer pay- ment by giving a bond to secure the tax. Ayers v. Chi- cago Title and Trust Company, 187 HI. 42 (Eeviewed ID People V. McCormick, 208 111. 437). 44. Remainders — Defeasible Estates not Taxable Until Indefeasible. Clarissa E. Curtis died a resident of New York State while the Act of 1885 was operative. An appraiser was appointed under the collateral inheritance tax act of 1885 and by said appraiser 's report, contingent interests were taxed. The will of decedent created a group of 36 trusts for the benefit of two daughters and two named grandchildren, each trust running for the life of the beneficiary with remainders over to such of the nephews and nieces of decedent as should be living at the time of the termination of the respective life estates, or, if such nephews and nieces did not survive, to their then living issue. On an objection interposed to the immediate taxation of these remainders the Court of Appeals held: **That the estates limited to the nephews and nieces were contingent; that it never was intended by the law to tax a theory having no real substance behind it. As was said in Matter of Swift, 137 N. Y. 86, the question of taxation is one of fact and can- not rest on theories or fictions.'' Decided that contingent estates were not presently taxable under the law of 1885. Matter of Curtis, 142 N. Y. 219. 45. Remainders — Created Prior to Tax Legisla- tion Are not Taxable. John B. Seaman died testate in October, 1876. His will bequeathed a residue in these words : *^ Sixth: All the rest, residue and remainder of my estate, real and personal, I give, devise and be- queath to my executors, hereinafter named, in trust to apply and pay over the income of one equal un- divided half part thereof to my said adopted daughter and niece, Elizabeth Seaman, during her natural life, and upon her decease I give, devise and bequeath said equal undivided one-half part of my estate so held in trust for my said adopted daughter and niece, to the children of my nephew, George A. Seaman, living at the time of her death, share and share alike. Seventh: I direct and order my said executors hereinafter named to apply and pay over the income 37 of the other equal undivided half part of my estate so held in trust by them to my said adopted son and nephew, George A. Seaman, during his natural life, and upon his decease, I give, devise and bequeath the said equal undivided half of my estate, so held in trust for my said adopted son and nephew, to the children of my said nephew, George A. Seaman, living at the time of his death, share and share alike." Both life tenants were living at the date of testator's death and both died in January, 1893. When the will took effect there were four living children of George A. Seaman, who still survive and who took into their pos- session the remainders upon the termination of the trust. No inheritance tax law had been passed when the will took effect, but the Act of 1892 was in force when the life tenants died and possession of the remainder passed to the four children. The question involved is, whether the vesting in possession which occurred after 1892 is a transfer or succession; then for the first time passing, and, taxable under the Act of 1892, or, if not then first occurring, is it made taxable by the explicit language of the statute. The Court held: ^'The right of the State at- taches when the right of succession accrues. The suc- cession in the remaindermen was effective at the time of decedent's death, viz: in 1876, and such successions are not taxable." Matter of Seaman, 147 N. Y. 69. 46. Dower and Curtesy — Not Taxable and Must be Subtracted from Property Chargeable Therewith. A dower interest in real estate should be valued and deducted from the value of that property to which the dower is chargeable. The difference or balance is tax- able. The value of the dower interest is not taxable. 38 Matter of Shields, 124 N. Y. S. 1003; Matter of Riemann, 87 N. Y. S. 731. Green's Estate, 129 N. Y. S. 54. Re Starhuck, 137 App. Div. (N. Y.) 866. 47. Dower — Is Taxable in Illinois under Act of 1895. Albert M. Billings died testate, a resident of Chicago, on February 7th, 1897, leaving a large estate. By the will his widow took a life estate in the entire property. The remainder was limited as follows : To C. K. G., a second life estate in two-thirds of the remainder and to a grandson a second life estate in one^third of the re- mainder. The widow renounced the provisions of the will and elected to take her dower and legal share under the statute. This accelerated the second life estates to first life estates. It was contended that dower does not pass by the intestate laws of the State and that the Inheritance Tax Law of 1895, therefore, did not include a tax upon dower. The Court held that the words * in- testate laws'' as used in the statute do not refer to any specially designated laws but that intestate laws mean all laws or systems of laws which govern the devolution of estates of persons dying intestate and include all ap- plicable rules of common law in force in this State, and that dower and the legal share of the widow passed by the intestate laws and was taxable under the Inheritance Tax Act of Illinois in force July 1st, A. D. 1895. Billings V. People, 189 111. 472. Also see Re Sanford's Estate, 133 N. W. 870 (Neb.) 48. Award. This question has not been the subject of particular judicial consideration by the Illinois Supreme Court, but in Billings v. The People, 189 111. 472, the court re- 39 fers to award in commenting upon the taxation of dower. In Re James Holden Estate, appraisement No. 2173, the County Court of Cook County held that award, like dower, passed by the intestate laws as defined in Bill- ings V. People, supra; award being a share of decedent's property passing by death to the party entitled and in the amount as determined by statute, and therefore tax- able. 49. Ante-Nuptial Contract — When Taxable. Marshall Field was married September 5th, 1905. Prior to the marriage and in contemplation thereof the contracting parties entered into an ante-nuptial agree- ment, by which it was provided, among other things, that if Mrs. Field survived her husband she should receive $1,000,000.00 out of the property and estate of Marshall Field in satisfaction of all claims, demands and rights which she might otherwise have in and to the property or estate of her husband as his widow. Field died in 1906 leaving Mrs. Field surviving. She presented a claim to the Probate Court for $1,000,000.00, based upon the ante-nuptial agreement, which was allowed and paid to her by the executors of the estate. It was contended by the executors that the right of Mrs. Field to said $1,000,000.00 did not pass to her by will or the intestate laws of the State, but was a legal debt due her under a valid contract made upon a valuable consideration and was not an inheritance. Counsel for the State contended that the ante-nuptial contract was a method of admeas- urement of dower substituted by the parties for the method provided by law for determining the same and that said $1,000,000.00 was paid to and received by said 40 widow as the full amount of her dower and other rights of inheritance. The Court said : *' Whatever may have heen decided in other juris- dictions, it is well determined in this State that .dower less the exemption provided by statute is sub- ject to the inheritance tax {Billings v. People, 189 111. 472). It would seem logically to follow that if the provision made for Mrs. Field in the ante- nuptial contract was in lieu of and substituted for her dower and other rights, she would have had in the estate of Marshall Field, as his widow, it would also be subject to the inheritance tax. The Court said, in Billings v. People, supra: *It will be noticed that neither dower nor any provision made in lieu of dower is exempted.' '' People y. Estate of Marshall Field, 248 111. 147. 50. Ante-Nuptial Contract— Not Taxable. An ante-nuptial contract creates a debt in favor of the widow. Debts are not taxable. Matter of Baher, 83 App. Div. (N. Y.) 530; 82 N. Y. S. 390; Aff'd 178 N. Y. 575. 51. Ante-Nuptial Contract to Make a Will- Transfer is by AVill and Taxable. George W. Kidd died December 3rd, A. D. 1901, pos- sessed of a large estate. Prior to death he entered into an agreement with a Mrs. Dickinson whereby it was pro- vided that in consideration of the marriage of Mrs. Dick- inson with Kidd, and the payment to him of $40,000.00, to be used in his business, said Kidd would adopt Grace G. Dickinson, daughter of Mrs. Dickinson, give her his name and make her his heir, etc. Decedent died without issue of the marriage and failed to transfer his property to Grace G. Dickinson as provided by the ante-nuptial contract. In a proceeding in the Supreme Court it was decreed that the contract was valid and that the property should pass to Grace G. Dickinson pursuant to the terms 41 thereof, viz. : as the heir of decedent. The Court held in an Inheritance Tax proceeding that the trustees under the will held the property for Grace G. Dickinson, and that she took the property as devisee under the will, and was, therefore, taxable. Matter of Kidd, 188 N. Y. 274. 52. Advancements — Taxable under Federal* In- heritance Tax Laxr. Banks, Sr., in February, 1869, conveyed to his son a lot of land of the value of $12,000.00. In 1865 Banks, Sr., executed his will, providing for legacies to his four sons. Said will provided: **A11 advances which may hereafter be made to either of my sons shall be charged against said sum as an advance, and shall bear interest from the time he shall receive the same. ' ' Testator died in 1871. An appraisement proceeding was had under the Federal Inheritance Tax Act of June 30th, 1864, Sec- tion 132 of which includes a tax on property transferred by ^*deed of gift or other assurance of title made without valuable or adequate consideration.'' The Court held: At the time the deed was executed the defendant had no proprietary interest in the property of his father. He had no expectant estate therein. The valuable and ade- quate consideration referred to in Section 132 must be held to mean money paid or some interest parted with or service rendered. This deed was within the statutory definition of a succession and a tax of $120.00 was there- fore assessed. Z7. S, v. Banks, 17 Fed. Eep. 322. ♦Repealed. 42 53. Community Property — California Statute Taxing Same Does not Impair Obligation of Contract. Moffitt was married in California in 1863 and there re- sided with his wife until his death in 1906. By the will of decedent his estate passed to his wife and children in the same proportions as if he had died intestate. Dece- dent's estate was. subjected to an Inheritance Tax under the Law of 1905 (California). The single question pre- sented was — ** "Whether the surviving wife's share of the community property is subject to this Inheritance Tax''! The California Supreme Court decided that the Inherit- ance Tax Law of 1905 did not violate the contract clause or due process clause of the constitution (153 Cal. 359). The case was then taken to the Supreme Court of the United States, which Court decided among other things, that the nature and character of the right of the wife in the community for the purpose of taxation was pecu- liarly a local question which was not reviewable in the Supreme Court of the United States. Mofjitt v. Kelly, 31 Sup. Ct. Kep. 79. 54. Gifts Inter Vivos — "When not Perfected. Decedent instructed her attorney to invest $20,000 for her daughter Marie and $20,000 for her granddaughter. These investments were not made prior to the death of decedent, nor was there any written evidence thereof to establish that the gifts were effected. The Court held there was no delivery and that both sums were subject to the Inheritance Tax. Re Myers Estate, 129 N. Y. S. 194. 55. Par. 1, Sec. 1. WTien the Transfer is by Will or by the Intestate Laws of This State from Any Person Dying Seized or Possessed of the Property While a Resident of the State. 43 56. Equitable Conversion— General. The doctrine of equitable conversion is an outgrowth of the maxim of equity, that which ought to have been done is to be regarded as done. The doctrine of equita- ble conversion is recognized in equity only and is not given effect in courts of law. Connell v. Crosby, 210 111. 380; Re Swift, 137 N. Y. 77 ; McCurdy v. McCurdy, 83 N. E. 881; Matter of Sutton, 3 App. Div. (N. Y.) 208. 57. Equitable Conversion not Applicable to Sub- ject Property to Taxation. William Drury died a resident of Illinois and by his will did, among other things, bequeath the residue of his property, both real and personal, to his wife, for and during her natural life and at her death the property remaining to be converted by the trustee into money so as to divide the fund into one hundred (lOO) parts of equal amounts.. Said trustee was directed to pay nine of such parts to specified legatees and devote the remaining ninety-one hundredths to founding **The William and Vashti College". Decedent left neither child, children nor descendants thereof surviving. The widow re- nounced the will and elected to take under the law. Said decedent died seized of real estate in Illinois, Kansas, Colorado, Nebraska and Texas. It was sought to subject not only the real estate in Illinois and all the personal property, but also the real estate outside of Illinois to taxation under the Inheritance Tax Law in force July 1st, 1895. The Court held: **The will directs the conversion of the real estate into money for the purpose of creating a fund to be devoted to the establishment of the college, and it is. argued that under the doctrine of equity the land is to be regarded as converted into personalty and 44 it is urged that the bequest of the proceeds of the sale of the real estate is subject to the tax as being personalty. The doctrine of equitable conversion is an outgrowth of the maxim of equity that in a court of equity that which ought to have been done is to be regarded as done. The doctrine of equitable con- version is recognized in equity only and is not given effect in courts of law. (7 Am. & Eng. Ency. of Law, 2nd Ed. 465.) It cannot be applied in proceed- ings, for the collection of inheritance or succession tax. In re Swift's Estate, 32 ^,^,1096. * * *'' Connell v. Croshy, 210 111. 380-390. 58. Personal Property — Testamentary Direction to Convert Real Into Personal Property. Decedent Abendroth directed by will that his real estate be converted to personal property, and bequeathed his daughter a share of the proceeds. The daughter survived but died before the conversion. In an appraisement of the daughter's estate, the Surro- gate held that she died possessed of a share in real es- tate owned by Abendroth. The Appellate Division reversing this holding, said: The daughter died possessed of a right to compel a conversion and distribution. The test is whether the property would pass under the statute of distributions or descent. The property became in equity personal prop- erty and so passed by the daughter's will. Matter of Mills, 67 N. Y. S. 956; 32 Misc. Kep. (N. Y.) 493. 59. Property Physically Situate at Domicile of Oixrner. Property, real and personal, and all interests in or evidences thereof situate at the domicile of the owner is within the jurisdiction of the taxing state, subject to its succession laws, and taxable. Connell v. Crosby, 210 111. 380 ; People v. Billings, 189 111. 472. 45 60. lieasehold Interest. A leasehold interest in land is personal property and taxable. Estate of Althause, 63 App. Div. (N. Y.) 252, aff'd 168 N. Y. 670. 61. Domicile within tlie State — Chattels withont the State. Personal property physically situate in the State of New Jersey, at the time of the death of the owner, who was. domiciled in New York, passes by the succession laws of New York, and is taxable in that State. Re Swift, 137 N. Y. 77; 32 N. E. 1096; 18 L. R. A. 709. 62. Property in Foreign State — Taxable at Domi- cile of Decedent. The personal property of a resident decedent located without the domiciliary state is taxable under the suc- cession laws of the domicile. McCurdy v. McCurdy, 83 N. E. 881. ; ; ig 63. Personal Property — Share in a Joint Stock Association Oivning Real Estate. . Decedent died August 12th, 1891, a resident of New York, possessed of 46 shares of a joint stock ass.ociation. Said association was formed in 1872 and the articles of said association provided, among other things, as fol- lows: **A11 the property, real and personal and all the goods and chattels., choses and rights in action and credits of every name and nature, with the evidence thereof, including the good will of its business of the association heretofore existing, are put in by the undersigned, who are the owners thereof and con- stitute the value of the shares of the association, etc.'^ 46 Under the Inheritance Tax Act of 1885, as amended in 1887, real property was exempt from taxation and it was contended by the comptroller that the shares, of the decedent in said stock association were personal prop- erty and not real estate. Held, that said stock association was not a corpora- tion, but, that as to the nature of the shares of stock is- sued, the same principles, of law are to be invoked that apply to a corporation. That such association is an entirety and that the shares of stock therein are per- sonal property and subject to taxation. Matter of Jones, 172N. Y. 575;65N. E. 570. 64. liif e Insurance — Payable to Legal Representa- tives or Assigns. Where the life insurance of a decedent is made pay- able to his administrators, executors, or assigns., or to his legal representatives, such insurance is property owned by decedent at the time of death and is taxable under the Law of 1885, as amended in 1887 (N. Y.). Matter of Knoedler, 140 N. Y. 377; 35 N. E. 601. 65. United States Bonds — ^"When not Taxable. The Legislature may subject the succession to United States bonds, to a tax. However, under the Transfer Tax Act of 1892, Ch. 399, which defines the meaning of the words ^^ estate'' and '^property" and limits the as- sessment of a tax to such property over which the State has jurisdiction, United States bonds are not taxable, as they are without the meaning and definition of Para- graph 22 of said Law. Matter of Sherman, 153 N. Y. 1 ; Matter of Sherman, 15 App. Div. (N. Y.) 628, aff 'd. 47 66. United States Bonds— When Taxable. Decedent died October 24th, 1898, possessed of United States, bonds which were issued under the Act of July 14th, 1870, and which said Act provides for the exemp- tion from taxation as follows: **From taxation in any form by or under State, Municipal or Local Authority''. Each bond contains a clause to such effect. The Court held: Prior to the Transfer Tax Act of 1892 United States bonds were taxable. Matter of Howard, 5 Dem. 483; Matter of Carver, 4 Misc. Rep. 592; Matter of Tuigg's Estate, 15 N. Y. S. 548; Matter of Whiting, 2 App. Div. (N. Y.) 590. And this was the view taken by apparently the only Federal Court that has passed on the question {Wallace v. Myers, 38 Fed. Rep. 184, cited with approval in V. S, v. Perkins, 163 U. S. 625, 629). By the Act of 1898 (New York) Ch. 88, the words which the Court of Appeals in re Whiting and Sherman uhi supra construed as indicating an intention not to tax bonds, were omitted from the section in question. Bonds were held taxable. Matter Plummer, 30 Misc. Rep. (N. Y). 18, aff'd Plummer v. Coler, 178 U. S. 115. 67. United States Bonds— 'When Taxable. **It is lawful for the State to withhold altogether the privilege of acquiring property within its do- minion by will or inheritance, whether the property consists of government bonds or anything else. It is lawful for the Legislature to annex any condi- tions to the privilege which may seem expedient and do not conflict with the organic law of the State or the constitution or laws of the United States {Mager V. Grima, 8 How. 490). '^ Wallace v. Myers, 38 Fed. Rep. 184; Strode v. Commonwealth, 52 Pa. 181. 48 68. Par. 2, Sec. 1. When the Transfer is by Will or Intestate Laws of Property within the State and the Decedent Was a Non-Resi- dent of the State at the Time of His Death. 69. Non-Resident's Property Situate in New York not Taxable under Act of 1885. Before the ameudment of 1887, property within New York passing by will or the laws of intestacy from a nonresident decedent was not taxable. Matter of Ens- ton, 113 N. Y. 174; Matter of Tulane, 51 Hun 213. 70. Property within the State— When Taxable. Eomaine died intestate in September, 1888, domiciled at Petersburg, Virginia. At the time of his death he was the lessee of a safe deposit box in New York which con- tained securities consisting of stocks and bonds of dif- ferent corporations and a mortgage upon real estate in New York City, as well as several pas>: I . 103 omit or fail to exercise the same ixrithin tlie time provided therefor, in ivhole or in part, a transfer taxable under the provi- sions of this act shall be deemed to take place to the extent of such omission or failure, in the same manner as though the persons or corporations thereby becoming entitled to the possession or enjoyment of the property to ivhich such power related had succeeded thereto by a will of the donee of the power failing to exercise such power, taking effect at the time of such omission or failure. 146. Power of Appointment — ^Wlien Created by "Will of Decedent "Who Died Prior to Tax Legislation — Real Estate Converted Into Personalty Before Transfer. David Dows, Sr., died March SOtli, 1880, a resident of the State of New York (before inheritance tax legisla- tion). Part of his property was limited in trust to pay the income therefrom to his son, David Dows, Jr., during life, **and upon the death of my son, the said property, with all accumulations of interest, income and profits, shall vest absolutely and at once in such of his. children him surviving, and the issue of his deceased children, as he may, by his last will and testament designate and appoint, and in such manner and upon such terms as he may legally impose. But in case my said s.on, David Dows, Jr., die intestate, then said property with all ac- cumulations of income, etc., shall vest absolutely and at once in his children him surviving, share and share alike, and the issue of his deceased children, per stirpes, to be paid to them at the times and in the proportion follow- ing, to-wit, etc.*' A similar devise was made of a share of testator's 104 residuary estate. The trustees had power of sale and exercised the same within the lifetime of David Dows, Jr., reducing the real estate to personal property and investing in stocks of corporations. David Dows, Jr., died January 13th, 1899, testate, and by his will exercised the power of appointment created in him by the will of his father in favor of his three sonsu By the will of David Dows, Jr., he gave to each of his sons the income of three undivided forty-eighths until his son Eobert attained the age of twenty-one years or sooner died; of four forty-eighths until Robert attained the age of twenty-five years or sooner died, and nine forty-eighths until Robert attained the age of thirty years or sooner died. Thus, each son was given the in- come of sixteen forty-eighths or one-third of the prop- erty. At the termination of these life estates the prin- cipal was given to another son, that is to say, to B was given the principal of the share, the income of which A had been receiving ; to C the principal of what had been B's share and to A the principal of C's share. Each son, instead of being given the remainder of his own share, after Robert arrived at the age of thirty years, is given the remainder in another s,on's share, though the shares are exactly equal. The surrogate imposed a tax on the property passing under this power of appointment both on the life estates and on the remainders. The surrogate's order was af- firmed by the Appellate Division. One of the objections raised to the order was that the tax imposed (under the Transfer Act of 1896 as amended April 16th, 1897, Ch. 284), upon transfers made under a power of appoint- ment, is a tax on property and not on the right of suc- cession, and therefore so much of the fund as is invested in incorporated companies was exempt from taxation 105 by tjie general statute and not subject to the Inheritance Tax. The Court held, citing Matter of Vanderhilt, 163 N. Y. 597, affirming 50 App. Div. (N. Y.) 246, that the theory upon which inheritance taxation is based is up- held in said cases, even if said property were converted into United States securities. Matter of Swift, 137 N. Y. 77 ; Matter of Sherman, 153 N. Y. 1 ; Magown v. Illinois Trust (& Savings Bank, 170 U. S. 283, etc. The second objection urged was that at the time of the death of said David Dows, Sr., the property was real estate on which there was, at that time, no transfer tax as against lineal descendants of the testator. The Court held, citing Matter of Sutton, 3 App. Div. (N. Y.) 208, affirmed 149 N. Y. 618, without opinion, that the actual form in which the property existed at the time of testa- tor's death determined its liability to a transfer tax and that, being real estate, it was exempt ; that the same rule governs this case, but that at the time of the execu- tion of the power of appointment under the will of David Dows, Sr., the property was personal. That the execu- tion of the power effects the transfer and it follows that the condition or form of the property at the time of such execution must control. The third objection was that the legatees and devisees of remainders are not subject to taxation until the precedent estates terminate and the remainders ves.t in possession. The Court held: ** Practically each son of David Dows, Jr., is be- queathed one-third of the fund absolutely with the time of enjoyment in possession postponed. What motive dictated the curious shifting of remainders found in the will of David Dows, Jr., we do not know, nor is it necessary that we speculate thereon * * *. Still, under the statute it is plain they are presently taxable. Subdivision 4, Sec. 220 of the Tax Act, amended by Chap. 284, Laws of 1897, directs the 106 tax shall be imposed ^wheii any sueli person or cor- poration becomes beneficially entitled in possession or expectancy.' Section 222 of the same laws pro- vide all taxes shall be due and payable at the time of the transfer, and that a tax upon the transfer of any estate, property or interest therein limited, con- ditioned, dependent or determinable upon the hap- pening of any contingency or future event, by reason of which the fair market value thereof cannot be as- certained at the time of the transfer, shall accrue and become due and payable when the persons enti- tled thereto come into actual possession or enjoy- ment. That all of the property passing by the exe,- cution of the power of David Dows, Jr., is taxable as of the date of the execution of the power.'' Matter of Dows, 167 N. Y. 227. 147. Power of Appointment — Transfer is Effected by Exercise of Poiwer. By the eleventh article of her will testatrix devised a certain share of her estate in trust, to hold the same for L. H., during his life, the income from said trust to be paid to s.aid L. H., for his and his family's use, mainte- nance and support. The limitation in trust further pro- vided that upon the death of said L. H., the trustee should pay over the trust fund to such person or persons and in such manner and proportion and at such time or times as the said L. H. should specify and direct by his last will and testament, provided such testamentary disposi- tion should be valid. In case he should die without leav- ing a will, such trust fund should be transferred and paid over to his children and their heirs. The Court held : * * The question presented by this appeal is whether the learned Surrogate was right in holding that this remainder was not taxable until the time comes for the exercise of the testamentary power of appoint- ment conferred upon the life beneficiary. In support of this determination the executors 107 rely upon subdivision 5 of Section 220 of Chapter 908, L. 1896, as amended by Chapter 284, L. 1897. This subdivision, so far as applicable, provides as follows : ^Whenever any person or corporation shall ex- ercise a power of appointment derived from any disposition of property made either before or after the passage of this Act, such appointment when made shall be deemed a transfer taxable under the provisions of this Act in the same manner as though the property to which such appointment re- lates belonged absolutely to the donee of such power and had been bequeathed or devised by such donee by will.' In construing this provision, it has been held that it is the exercise of the power of appointment and not the creation of that power which affects the transfer which the statute makes taxable. Matter of Beaver, 63 App. Div. (N. Y.) 283; Matter of Wal- worth, 66 id. 171. If this view is correct and the subdivision quoted is applicable to the 11th and 12th articles (same as 11th) of Mrs. Howe's will, the order under review would clearly appear to be right. The applicability of that subdivision, however, is disputed by the learned counsel for the appellant, who insists that it was repealed by implication by the enactment of Chapter 76 of the Laws of 1899, which amended Section 230 of the Tax Law (Laws of 1896, Chap. 908) by inserting therein, among other provisions, the following: *When property is transferred in trust or otherwise, and the rights, interest or estates of the transferees are dependent upon contingencies or conditions whereby they may be wholly or in part created, defeated, extended or abridged, a tax shall be imposed upon said transfer at the highest rate, which, on the happening of any of the said contingencies or conditions, would be possible under the provisions of this article, and such tax so imposed shall be due and payable forth- with out of the property transferred.' The phrase- ology of this amendment of 1899 is not such as. nec- essarily to embrace a case like the present, where a 108 testamentary power of appointment is bestowed upon the life beneficiary of a trust. While here Leavitt Howe and Edward Howe may be regarded as the original transferees of the shares devised and bequeathed in trust for their benefit, it cannot fairly be said that their rights, interests, or estates are de- pendent upon contingencies or conditions whereby they may be wholly or in part created, defeated, ex- tended or abridged. Their right, interest and estate in the share or money set apart in trust for each is absolute and not dependent upon any contingency or condition whatever. They are entitled under the will to the proceeds of the fund left in trust for them during the whole of their natural lives. It would seem, therefore, that their estates do not fall within the scope of the amendment, and it may well be doubted whether the amendment was intended to apply at all to cases, where a life estate is coupled with a testamentary power of appointment to be exercised at its conclusion. It is to be observed that the amendatory statute (Laws of 1899, Chap. 76) makes no change whatever in any section of the Tax Law, except Section 230. It leaves unchanged Sec- tion 220, the fifth subdivision of which, relating to powers of appointment, has already been quoted. The effect of the amendment, therefore, was the same as though one statute had been enacted con- taining subdivision 5 of Section 220 and Section 230 as changed in 1899. We thus have in contemplation of law an act of the Legislature containing specific directions as to the taxation of estates in regard to which a power of appointment is conferred upon the original transferee ; and I do not see how it can well be held that a subsequent provision in the same statute in regard to the taxation of transfers of property, where the estates of the transferees are dependent upon contingencies or conditions, effects a repeal by implication of the specific provision relat- ing to transfers through the instrumentality of the donee of the power. Neither Matter of Vmderhilt (172 N. Y. 69) nor Matter of Brez {Id. 609) bears upon the question in controversy here. Thos.e decisions relate wholly to 109 the effect of Section 230 of the Tax Law (as amd. by Laws of 1899, Chap. 76) and the opinions contain nothing in conflict with the views which have been expressed/' Matter of Howe, 86 App. Div. (N. Y.) 286, affrmed 176 N. Y. 570. 148. Power of Appointment Created by "Will of Testator Who Died Prior to Tax Legisla- tion. Vanderbilt died in 1885 and by his will created a trust fund wherein his son was given the income for life with power to appoint said sum to his lawful issue in such shares as by will directed. Said son died in 1899 and by his will appointed a portion of the fund to his issue. At the time of the death of Vanderbilt the succession to said fund was not taxable under the collateral inheritance tax law. By the amendment of 1897, subdivision 5, Section 220, it was provided that whenever any person shall ex- ercise a power of appointment derived from any dis- position of property, made either before or after the passage of the amendment, such appointment shall be deemed a taxable transfer. The Court held : That the direct object of the amendment of 1897 was to make the time at which the appointee of the power became enti- tled to possession, the time at which the tax should be imposed. That the collateral inheritance tax law of 1885 did not constitute a contract between the State of New York and Vanderbilt. *^It is never to be assumed that the State has, by any act, fettered its power of taxation unless it appears with irresistible clearness otherwise." Matter of Vanderbilt, 50 App. Div. (N. Y.) 246. Affirmed 163 N. Y. 597, on opinion below. 110 149. Tax on Transfer Effected by Power Created Under Will Before Tax Legislation Con- stitutional. One Astor conveyed to his daughter, Mrs. Delano, on September 30th, 1848, a house and lot in New York City. Said deed provided that Mrs. Delano should have the life use of the property, and upon her death without is.sue to a brother and sister, or their issue, etc. The deed further conferred upon Mrs. Delano the power to appoint the property to her brothers and sister, or their issue. On September 6, 1849, Astor transferred, in trust, cer- tificates of the public debt of the State of Ohio amount- ing to $50,000.00, with the life use thereof to his daughter, Mrs. Delano, and power of appointment in her to desig- nate the fund by will to her brothers and sister. Held, Section 220, as amended in 1897, a proper exercise of legislative power and that the property appointed by Mrs. Delano, who died tes.tate in 1902, was taxable ac- cording to her exercise of the power by will. * * The right of the Legislature to impose a tax on the privilege of exercising a power by will is not affected by the fact that no such tax was imposed when the power was created.'' Matter of Delano, 176 N. Y. 486. 150. Poxirer of Appointment — IVlien Situs of Property Inimaterial. Caroline C. Hull died testate in January, 1874, a resi- dent of the State of New York. She bequeathed to her son, W. J. Hull, the income of four-thirteenths of her estate during his life, with the power to appoint the principal by last will and testament or other instrument executed by him ''m the presence of two or more wit- nesses. ' ' Ill At the death of Caroline C. Hull said four-thirteenths of her estate consisted of an undivided interest in real estate — ^* belonging to her father, Eichard M. Cooper, a resident of New Jersey, but for a long time subsequent to her death the said four-thirteenths of her estate had been converted into cash and remained in that form which had been invested in bonds and mortgages on prop- erty in New Jersey/' W. J. Hull died a resident of the State of New York, April 5th, 1902, and by his will exercised the power of ap- pointment conferred upon him by the will of his mother, Caroline C. Hull, appointing said fund to Ida M. Hull, his wife. Pursuant to the power of appointment the trustees of the estate of Caroline C. Hull paid the fund (which was in Camden County, New Jersey) to Ida M. Hull, between the 9th day of September, 1902, and the 5th day of May, 1904, the value being $26,537.00, said payment being made pursuant to the exercise of the power of appointment. An appraiser was appointed in the State of New York and on his report the surrogate found the fund was. taxable against Ida M. Hull. On appeal to the Surrogate Court of Westchester County the surrogate's order of tax was reversed. In an appeal prosecuted to the Appellate Division it was held : **We are of the opinion that the learned surrogate has fallen into error in reversing the original decree in this matter, due to the confusion of the question of an entirely irrelevant detail in relation to the situs of the property which passed to said Ida M. Hull, The question is. not, where the property was located or whether it was real or personal property, but whether the beneficiary came into its possession through the exercise of a privilege conferred by the State of New York. The Tax Law (L. 1896, Ch. 908, Sec. 220, Subd. 5, as amended by L. 1897, Ch. 284) provides * whenever any person or corporation 112 shall exercise a power of appointment derived from any disposition of property made either before or after the passage of this Act, such appointment when made shall be deemed a transfer taxable under the provisions of this Act, etc.' It is not the property which is the subject of taxation; it is the right or privilege which the State confers upon the citizens of this State to dispose of property by will * * *.» In Matter of Bows, 167 N. Y. 227, 231, the Court, after calling attention to certain cases decided in the United States Supreme Court, says: *But whatever may be the technical source of title of a grantee un- der a power of appointment, it cannot be denied that in reality and substance it is the execution of the power that gives to the grantee the property passing under if * * * {Matter of Lansing^ 182 N. Y. 238-244, and authorities cited therein), it being the privilege upon the right to succession of property by means of a will that is taxed; and the subject of the litigation being within the jurisdiction of the State, it seems clear in the will of Caroline C. Hull, a resident of this State, upon the exercise of that power by Wager J. Hull, likewise a resident of this State, is. bound to pay the tax imposed upon that privilege, regardless of the question of where the property to which the power related was located. Jda M. Hull gets all her rights in and to the prop- erty by reason of the exercise of the power, a priv- ilege granted by the State of New York. * * * " Matter of Hull, 111 App. Div. (N. Y.) 322. 151. Tax on Transfer Effected by Exercise of a Power Created Prior to Tax iLegislation Constitutional. The Supreme Court of the United States, in an opinion reviewing Matter of Delano, 176 N. Y. 486, said in part: ** However technically correct it may be to say that the estate came from the donor, and not from the donee of a power, it is self-evident that it was only upon the exercise of the power that the estate in the plaintiffs in 113 error became complete. Without the exercise of the power of appointment the estates in remainder would have gone to all in the class named in the deeds of Will- iam B. Astor. Notwithstanding the common law rule that estates created by the execution of the power take effect as if created by the original deed, for some purposes, the execution of the power is considered the source of title. We cannot say that property has been taken without due process of law within the provisions of the fourteenth amendment * * *. Nor do we perceive that the effect has been to violate any contract right. ' ' Chanler v. Kel- sey, 205 U. S. 466. 152. Power of Appointment — When Erroneous Prior Assessment Does Not Preclude Tax on Tranf er by the Exercise of the Poiver. Stephen Buckingham died testate a resident of New York, December 1st, 1887. By his will two trusts were cre- ated, one specific and one residuary, giving Charles Buck- ingham a life estate therein with x>ower to appoint the corpus of the funds. In 1888 an appraisement was had under the Collateral Inheritance Tax Law of 1885-1887 and a tax was imposed against Charles H. Buckingham on the specific trust on the theory that Charles was in- vested with the corpus at the time of the death of his Uncle Stephen. A life estate was taxed to Charles Buck- ingham in the residuary trust. The taxes so assessed were paid. The value, however, of Charles H. Bucking- ham's life interest in the two trust funds was only $42,- 000.00, but he had been taxed on a total of $66,000.00. Charles Buckingham died a resident of New York, test- ate. May 12th, 1904, and appointed his wife, Elizabeth, as the beneficiary of both funds. In an appraisement of the estate of Charles H. Buckingham, it was urged by the 114 executors that the excess payment in the Stephen Buck- ingham estate should be applied on the tax to Elizabeth. Heldj that the tax could not be anticipated on Elizabeth Buckingham's succession, and **That the transfer tax which is sought to be im- posed in these proceedings mus.t be regarded as im- posed upon a transfer created by the will of Charles H. Buckingham; and not by the will of Stephen M. Buckingham; that at the time of the settlement of the estate of Stephen M. Buckingham there was no law in existence authorizing the imposition of such a tax; that the imposition of such a tax was not anticipated in fact, and could not have been antici- pated in the proceedings by which the Inheritance Taxes were adjusted and collected in the estate of Stephen M. Buckingham ; and that the right of Eliza- beth Buckingham to succeed to the fund in question is. taxable as a transfer effected by the operation of her husband's will with the like effect as though such fund belonged absolutely to him and had been be- queathed to her in and by his will. ' ' Matter of Buch- ingham, 106 App. Div. (N. Y.) 13. 153. Power of Appointment — Real Estate in Neiv York Appointed by Non-Resident Donee Taxable. In an application to refer to the appraiser his report for further consideration it appeared that Gertrude L. Lowndes died testate, a resident of New York, and be- queathed her estate in trust, as follows: Income to be paid to her children for life and ^*upon the death of either of them to convey, transfer, set over and assign an equal one-fourth part, according to the provision of any will my said daughters may make, and in default of a will, then to convey, transfer and set over such equal fourth part to the issue of my said daughters.'* Annie Chase was one of the daughters of Gertrude L. 115 Lowndes and exercised the power of appointment con- ferred upon her in substance, as follows : **A11 the rest, residue and remainder of my estate and any and all estate or property over which I have power of disposition or appointment, and especially any estate in which I have any interest, or over which I have any such power under the will of my mother, Gertrude L. Lowndes, I give, devise and bequeath to my husband for and during his life and upon his death to my two children. ' ' The Court held: **The exercise of the power of appointment was the medium through which the appointees obtained their title and not by the will of Gertrude L. Lowndes {Matter of Coohsey, 182 N. Y. 92). The donee of the power (Annie Chase) was a non-resident of New York, but the exercise of the power comprehended the transfer of real estate situated in New York; therefore the Surrogate's, Court of New York had jurisdiction of the proceeding to assess a tax upon the transfer of property passing by virtue of the exercise of the power of appointment. {Matter of Beaver, 63 App. Div. (N. Y.) 283.) The proceeding should be amended by entitling the appraisement as follows: *In the Matter of the Transfer Tax upon the trust created by the will of Gertrude L. Lowndes, deceased, for the benefit of Annie L. Chase and her appointees or heirs' and when so amended the ap- praiser's report will be remitted to him for further consideration and report in accordance with the di- rection expressed in the opinion." Matter of Lowndes, 60 Misc. Eep. (N. Y.) 506." 154. Danee and Appointee Non-Resident — Prop- erty Within the State. Edward C. Lord died testate, a resident of New Jersey, in January, 1892. His will was admitted to probate in the Probate Court of New Jersey. By his will he exer- cised two powers of appointment by designating Emily 116 M. Lord, his widow, the beneficiary of the following funds : 1. Trust fund transferred by deed, delivered in March, 1873, use of property to Edward C. Lord, during life, with power to dispose of the corpus of the fund by will. 2. A trust created by the will of Susan Lord, who died in 1880, bequeathing property to Edward 0. Lord during his life, with power to appoint remain- der. Emily M. Lord died a resident of New Jersey before the will of Edward C. Lord was admitted to probate. Part of the property composing the trust funds was situ- ate in the State of New York and held by the trustees, who were residents of that State. The property situated in New York composing said two trust funds, and ap- pointed by the will of Edward C Lord, passed by the exercise of the power of appointment to Emily M. Lord and were therefore taxable to her. Matter of Lord, 111 App. Div. (N. Y.) 152. 155. Mortgages Held Outside State Transferred by Non-Resident Under Testamentary Power Created by Will of Deceased Resi- dent of New York. Testator died a resident of New York in 1870. His will created a trust for the life of his daughter, Mrs. Sheldon, with power to appoint by will. Mrs. Sheldon died a resident of the State of Ehode Island, testate, and exercised the power of appointment created in her by the will of her father. The surviving trustee of testa- tor's will was a resident of Ehode Island. The trust estate which was disposed of by Mrs. Sheldon's will wholly consisted of bonds secured by mortgages on real estate, which said real estate was in New York, but none 117 of the bonds were ever kept in New York. The Court held: *^As Mrs. Sheldon, in making her will, exercised a privilege granted by her own State and not by this State, and the transfer of the property effected by the exercise of the power was beyond the reach of the New York Tax Law, the State (N. Y.) had no dominion over the property transferred.'' Matter of Fearing, 200 N. Y. 340. 156. Po-virer of Appointment— WlLen Not Exer- cised. Testatrix died December 25th, 1883, before any Inher- itance Tax legislation in New York. She devised her residuary estate to her husband for his life with power in him to appoint the corpus by will. The husband died September 16th, 1894, testate, and his will contained the following provision: **I direct my executors to keep the estate of my deceased wife separate from my estate, and to distribute her estate according to the provisions of her last will and testament, by delivering the same to the executors named in her will, for that purpose.'' This was the only section claimed to show an execution of the power. The Court held: That the husband's will was in effect a relinquishment or renunciation of the power of appointment. That it was a declaration of his purpose not to exercise the power, but to allow the prop- erty to pass under the will of his wife. The property passing under the will of a person who died prior to Inheritance Tax legislation is not taxable. Matter of Langdon, 153 N. Y. 6. 157. When Appointee Takes Under "Will Creating Po"wrer and Not by Exercise of PoxiT'er. Testator left one-fifth of his property in trust for his son for life, remainder to the s.on's heirs '*or to such 118 person or persons as such child may appoint in his last will and testament/' The son died testate, appointing his own children as beneficiaries. Held, that the chil- dren of the son did not take by their father's will through the exercise of the appointment, but that they took from the grandfather (original testator). No transfer tax law having been passed at the time of the death of said tes- tator (grandfather), no tax is assessable. Matter of Backhouse, 110 App. Div. (N. Y.) 737. See Matter of Cooksey, 182 N. Y. 92. 158. When Exercise of Power Is Mere Form Ben- eficiary Takes by Will Creating Power, A resident of New York died testate in August, 1875, limiting his residuary estate for the benefit of his wife and daughters. Anna K. Shaw, one of the daughters, was given one-half of one share absolutely, the other half to trustees with directions to pay the income there- from to said Anna K., during life, and on her death to transfer the principal of said one-half to her issue, * * and in case no such issue shall survive her, then to pay and transfer the said last mentioned one-half share to such person or persons as. my said daughter shall, by her last will, appoint, and in default of appointment, to daughter C. H. Crafts, if she shall survive the said Anna, etc.'' Anna K. had no children and died without issue in March, 1907, leaving her sister, C. H. Crafts, surviving. The Court held : The remainder in said one-half vested on the death of testator in 1875 in C. H. Crafts, his daughter, s.ubject to be divested by the birth of issue to Anna K., or by the execution of the power. Section 31 of the real property law provides that the existence of an unexecuted power does not prevent the vesting of a fu- ture estate. C. H. Crafts was a person in being at the 119 death of her father and her interest was therefore a vested remainder. The execution of the power only took effect on the death of Anna K. After the will of Mrs. Shaw was admitted to probate C. H. Crafts, by a formal instrument in writing duly verified, claimed the trust funds under the will of her father, who died in 1875, and in no respect did she take under the action of her sister, Anna K. The exercise of a power which leaves every- thing as it was before is a mere form with no substance. {Matter of Coohsey, 182 N. Y. 92, distinguished.) Mat- ter of Eaggerty, 128 App. Div. (N. Y.) 479. Affirmed 194 N. Y. 550, without opinion. 159. When Appointee Elects to Take by "Will In- stead of Poiver. Decedent died a resident of New York in 1869, and provided by his will that his estate should be divided into as many equal portions as there were surviving children; one of the portions, was given to each of said children in trust for the life of each child and after death to the heirs at law of such child, with power to dispose of the respective remainders among their heirs and collateral relatives in such proportion and manner and limitations as they saw fit. Jeanette S. Lansing, one of the surviv- ing children, died in 1904, and by her will appointed her only child, Jeanette Lansing McVicker, as the beneficiary of one share. The Court held : Although the power was exercised (by Mrs. Lansing) in form, the rights of Mrs. McVicker were already vested. The power was to dis- pose of the remainder, but the remainder was not dis- posed of, as it continued where it was. The attempt to execute the power was not effective because it did noth- ing. An appointee under a power has the right of elec- tion, the same as a grantee under a deed, and Mrs. Mc- 120 Vicker elected to take under the will of her grandfather, who died in 1869. Held not taxable. Matter of Lansing, 182 N. Y. 238. 160. Value of Property Not Diminislied by Life Estate Previously Taxed. In an appraisement of the estate of decedent, who died in August, 1892, the surrogate, by approval of an ap- praiser's report, determined the value of a fund passing to testator's daughter to be $27,000.00 and the life estate of the daughter to be $22,000.00, leaving a remainder of about $5,000.00 which was not taxed, as it could not then be determined to whom it would pass. The life tenant (daughter) died in 1899 testate, and exercising a power to appoint said fund which was created by her father's will. In a second appraisement, after the death of the life tenant, it was urged that the tax should be one per cent, upon the original value of the remainder, which was about $5,000.00. The surrogate held that the transfer of the fund by the exercise of the power effected a com- plete transfer of the entire property and that said fund should not be diminished by the valuation of the life estate previously taxed. Re Tucker's Estate, 59 N. Y. S. 699. 161. Relationsliip of Donee of Power to Ap- pointee Determines Rate of Tax. Matter of Seaver, 71 N. Y. Supp. 544. Matter of Walworth, 72 N. Y. Supp. 984. Matter of Rogers, 75 N. Y. Supp. 835. 162. Rate of Taxation Governed by Law in Force at the Time of the Exercise of the Pow^er. Walworth's Estate, 72 N. Y. Supp. 984. 121 163. Exemptions — Relationsliip — Rates of Tax— - 'When Tax Accures — All Questions Deter- mined as of Date of Transfer. 164. Tax Accrues at Death of Decedent. The descent of property in Illinois, whether by inherit- ance or devise, is regulated entirely by statutory provi- sions. {Kochersperger v. Drake, 167 111. 122.) All the property owned by any person at his decease passes either under the Statute of Descent to the persons men- tioned in that statute, or under the Statute of Wills, to his devisees. The Inheritance Tax Law provides that all property so descending, whether under the Statute of Wills or the Statute of Descent, siall be subject to a tax at certain specified rates at the fair market value thereof, which shall be due at the death of decedent. The tax is not upon the estate of decedent, but upon the right of suc- cession, and it accrues at the same time the estate vests — that is, upon the death of the decedent. Questions may arise as to the persons in whom the title vests, and such questions may affect the amount of the tax and the per- son whose estate shall be chargeable with it; but when those questions are finally determined their determina- tion relates to the time of the decedent's death. No change of title, transfers or agreements 'of those who succeed to the estate, among thems.elves or with strangers, can affect the tax. All questions concern- ing it must be determined as of the date of the deced- ent's death. Re Estate of Graves, 242 111. 212. 165. Beneficial Interest — Transfer Mnst Be Ef- fected "While Tax Law Is In Force. The beneficial interest is taxable. The tax does not 122 affect rights accruing by the death of a decedent prior to inheritance tax legislation. Matter of Seaman, 147 N. Y. 69. 166. Rate of Tax Determined by Relationship. The rate of tax is determined by the relationship of the decedent to beneficiary. An assignment by the bene- ficiary of his interest presupposes an ownership and the succession is in the beneficiary and not the assignee. Matter of Cook, 187 N. Y. 253. 167. Exemption. The beneficiary claiming exemption must point to the provision of the law sustaining his claim. Kavanaugh's Estate, 6 N. Y. S. 669. 168. Exemption — Statutory Exemption Relates to the Share of Beneficiary. In reviewing an act of Congress of June 13th, 1898, Chap. 448, usually spoken of as *^The War Revenue Act" (20 Stat. 448), so far as the s,ame relates to Sections 29 and 30, which provides for a tax on * legacies and dis- tributive shares of personal property,'' the Court held, among other things, as follows : 1. That the tax is on the legacy or distributive share, the rate being determined by the relation of the legatee to the decedent. 2. That the money exemption does not relate to the estate of decedent, but to the share of the legatee or distributee. Knowlton v. Moore, 178 U. S. 41. 169. Exemptions-— Claimant Mnst ShoT^ Exemp- tion. A person claiming exemption must show the particular 123 statute granting it. An exemption will not be presumed. Matter of Moore, 97 Sup. Ct. Rep. (N. Y.) 162. 170. Exemptions — Xot Favored. The provisions of a law granting exemptions are to be strictly construed against a claimant. The beneficiary must be clearly within the statutory language. Dos Passos on Inheritance Tax Law, 2d Ed. 74; Re Fayer- weather, 143 N. Y. 119 (38 N. E. 278) ; Re Prime, 136 N. Y. 347; People v. Cameron, 124 N. Y. S. 949; Re ArnoVs Estate, 130 N. Y. S. 499. 171. Lineal Descendants— Children of Adopted Child. ' * Lineal descendants ' ' means the direct descendants of the decedent whose death effects the transfer. It does not refer to nephew or niece unless expressly stated in the statute. {Matter of Miller, 45 Hun 244; Matter of Smith, 45 Hun 90.) The children of adopted children or of persons to whom the testator stood for ten years prior to death in the mutually acknowledged relation of a parent are not lineal descendants within the statute and are not entitled to an exemption from taxation un- der the Inheritance Tax Law of New York. {Matter of Moore, 90 Hun. 162; Matter of Bird, 32 St. Rep. 899.) Greene's Law of Taxable Transfers, 2nd Ed. 57. 172. Particular Rates of Taxation and Exemp- tions Under the Illinois Laxir in Force July 1, 1895. Beneficiaries or transferees are divided into three classes for the purpose of taxation. The first class con- sists of those having some direct relationship by blood or marriage with decedent or his family, excepting grand- 124 parents. The second class consists of the collateral rela- tives further removed than brothers and sisters. The third class comprehends those farther removed in rela- tionship, strangers in blood and those institutions and corporations not expressly exempt by law. 173. Transfers Under the Illinois Law Effected Prior to July 1, 1909— Rates and Rights of the Parties. If a transfer is effected prior to July 1st, 1909, and on or after July 1st, 1895, the rates and rights of the par- ties are determined by the law in force July 1st, 1895. The exemption to beneficiaries of the first class is $20,- 000.00 and the rate 1% on the total amount or value taken in excess of $20,000.00. Beneficiaries of the second class are each exempt $2,000.00 and taxable at 2% on the excess thereof, re- gardless of the amount or value of the property taken. Beneficiaries of the third class have no statutory ex- emption, but no tax is assessable unless the share of each beneficiary equals the value of $500.00. "When the share equals the value of $500.00 and does not exceed $10,000.00 the rate is 3% ; when the share is over $10,- 000.00 but does not exceed $20,000.00 the rate is 4%. When the share is over $20,000.00 and does not exceed $50,000.00 the rate is 5% ; when the share exceeds $50,- 000.00 the rate is 6% on the total value of the property taken by each beneficiary. 174. Illinois Law in Force July 1, 1909— Rates and Exemptions, The Inheritance Tax Law in force July 1st, 1909, made no change in the classification for taxation but increased the rates, as follows : First Class Beneficiaries: The father of deceased is 125 exempt $20,000.00. If a father receives $20,000.00 or less, his succession, share, interest or transfer is not taxable. If the total of his gifts, transfers, shares or succession exceeds $20,000.00 and equals $100,000.00 or less, $20,- 000.00 is exempt and the rate of tax is 1% on the exoess thereof. Illustration : All personalty $82,000.00 One-half real estate. . ., 14,000.00 Dower in other half. . . 4,000.00 $100,000.00, exemption $20,000, Rate 1%, Tax $800.00 If a father receives over $100,000.00 he is exempt $20,- 000.00 and the rate of ta:K is 2% on all property received over $20,000.00. Illustration: All personalty $94,000.00 One-half real estate. . .46,000.00 Dowerin other half... 10,000.00 $150,000.00, exemption $20,000, Rate 2%, Tax $2,600.00 The mother, husband, wife, children, grandchildren, brothers and sisters of decedent have the same exemp- tions and are taxed at the same rates as the father of de- cedent. The wife or widow of the son, and husband of the daughter, of decedent have the same exemptions and are taxable at the same rates as a father of decedent. 175. Husband of a Daughter Who Died Before Testator. The husband of a daughter of a testator has the same 126 exemption as the daughter. The fact that the daughter died before the testator is immaterial. Matter of Wool- sey, 19 Abbott's N. C. 232. Matter of McCarvey, 6 Dem. 145. 176. Wlien Husband of Deceased Daughter is Re- married. Under the New York Transfer Act of 1892 a bequest to the husband of a daughter is not affected, so far as taxation is concerned, by the death of the daughter, prior to her father, and the remarriage of the husband of said deceased daughter. Ray's estate, 35 N. Y. S. 481. 177. Widow of Adopted Son Is "Widow of a Son." Under the Transfer Tax Law of New York, the words ** widow of a son'' cover the widow of an adopted son. Matter of Duryea, 128 App. Div. (N. Y.) 205. 178. Adoption— When Effected in Foreign State Entitles Beneficiary to Exemption. A testator, who died in September, 1899, transferred **to my adopted son Edward K. Butler, 500 shares of stock'' of the value of about $50,000.00. Edward K., was adopted by decedent and his wife under the laws of the State of Massachusetts. Held, that the exemption to adopted children was not confined to those adopted un- der the laws of New York, but was to be extended to chil- dren adopted under the laws of other States when such laws corresponded to the laws of the State of New York. Matter of Butler, 65 Sup. Ct. Kep. (N. Y.) 400. 179. Children of an Adopted Child Are ''Lineal" Descendants of Decedent. The Court of Appeals of New York in passing upon the question whether the children of an adopted child of 127 testator were lineal descendants of such testator, said: **A lineal descendant is one who is in the line of descent from a certain person, bnt since the Domestic Relations Law went into effect, not necessarily in the line of gen- eration." Held, that children of an adopted child were included under **any lineal descendant of such deced- ent." L. 1896. Matter of Coo'k,!^!'^. Y,2b3, 114 App. Div. (N. Y.) 718, reversed. 180. Child of Adopted Child— When Taxable. Children of an adopted child are not designated as exempt by the Inheritance Tax Act. Such children are taxable as strangers. Matter of Moore, 90 Hun 162. Matter of Fisch, 34 Misc. Rep. (N. Y.) 146. Matter of Bird, 32 N. Y. St. Rep. 899. 181. Relation of Parent to Beneficiary — Must Be Clearly Shown. By decedent's will property was transferred to his * ^nieces". An objection was made to the tax assessed by the surrogate on the ground that decedent stood in the acknowledged relation of parent to such nieces. The evidence disclosed that the beneficiaries were referred to as ** nieces'' and that the beneficiaries referred to de- cedent as ** uncle". No relationship of parent and child was shown except by inference or conclusion. Held, that no person is impliedly exempt from taxation and that the statute is to be strictly construed against the claim- ant. That the relationship was not established. Matter of Deutsch, 107 App. Div. (N. Y.) 192. 182. Acknowledged Relation of Parent. John H. Beach died testate, a resident of New York, September 28th, 1893, and by codicil devised to appel- 128 lant, Caroline A. James, real property valued at $100,- 000.00 and personal property worth $4,500.00. Testator was sixty-eight years of age, a widower and died with- out issue or lineal descendants. In 1881 appellant (Mrs. James) and her husband, at the solicitation of Beach, be- came members of his family (appellant at that time being over thirty years of age), under an oral understanding between them that Mrs. James should be regarded and treated by Beach as his daughter and that she should regard him as her parent. Beach and Mr. and Mrs. James lived in the same house as one family ; Mrs. James managed the affairs of the household and Beach de- frayed the household expenses. The testator introduced appellant as his daughter. The relation of parent and child was continued until testator's death. It was contended by respondent that Section 2, Chap- ter 399, Laws of 1892, was intended to cover only ille- gitimate children as decided by the General Term in Matter of Hunt, 86 Hun 232. Held, that the exemption covers any person related by blood, or a stranger, adult or minor, to whom a de- cedent stood in the relation of parent for the period pro- vided by law. {Hunt case not followed.) Eeversing Matter of Beach, 19 App. Div. (N. Y.) 630. Matter of Beach, 154 N. Y. 242. 183. Parent and Child — Mutually Acknowledged Relation. Chapter 399, Laws 1892 (N. Y.) providing for an ex- emption in certain cases to a beneficiary to whom a de- cedent, for not less than ten years prior to death, stands in the mutual acknowledged relation of parent, covers persons not adopted as children. (Re Hunt's Estate, 33 N. Y. S. 256, not followed. Re StillwelVs Estate, 34 129 N. Y. S. 1123. Matter of Nichols, 98 Sup. Ct. Rep. (N. Y.), 134. 184. Children of Person to 'Whom Decedent Stood in Relation of Parent— Stranger in Blood. Caroline C. Moore died testate a resident of New York, May 28th, 1887. By the ninth clause of her will Augusta C. Graves and the seven children of Augusta 0. Graves were made residuary legatees of Mrs. Moore's property. A construction of said ninth clause of decedent's will, by the Court of Appeals, 126 N. Y. 636, it was held that Augusta C. Graves and her children each took a one- eighth of the residue. In an Inheritance Tax appraise- ment under the Law of 1887 the surrogate assessed an Inheritance Tax upon Mrs. Grave's children as strangers in blood but exempted Mrs. Graves as a person to whom decedent stood in the mutually acknowledged relation of parent for at least ten years. On appeal from the Surro- gate Court it was held that the Act of 1885 as amended in 1887 did not exempt the children of a person to whom the decedent stood in the relation of parent, and there- fore, that the children of Mrs. Graves were taxable as strangers in blood. Matter of Moore, 90 Hun 162, 35 N. Y. S. 782. 185. Children of Person to Whom Decedent Stood in Relation of Parent are Taxable. In an appeal by one Bowen in the Estate of Mary Beecher, deceased, from an order of tax entered by the County Judge of Cook County, Illinois, the Court held, that under Section 1, Inheritance Tax Laws of Illinois, 1895, children of a person to whom the decedent (Mary Beecher) stood in the relation of parent were strangers in blood to decedent and taxable at the rates provided for 130 strangers. Bowen v. People, Cook County Court Case No. 24872. 186. Act of 1909 (Illinois) liimits Exemption. The Illinois Law of 1909, revising the Law of 1895, limits the $20,000.00 exemption to any person to whom the deceased, for not less than ten years prior to death, stood in the acknowledged relation of a parent, by adding : '^Provided, however, such relationship began at or be- fore said person 's fifteenth birthday and was continuous for said ten years thereafter : And, provided, also, that the parents of such person so standing in such relation shall be deceased when such relationship commenced.'' It is to be noted that to constitute this relationship certain facts must exist : 1st. The relationship must begin at or before the *^ person's'' fifteenth birthday. 2nd. The parents of the person must be dead when relationship commenced. 3rd. The relationship must be continuous for ten years after it commenced. 4th. It must be acknowledged and exist at the time of death. The burden of proof is based upon the person claiming exemption to prove all material facts which will estab- lish the exemption. Matter of Davis, 98 App. Div. (N. Y.) 546, 184 N. Y. 299. 187. Botli Parents Must Be Dead— Stepchild a Stranger. The word *^ parents" in Section 1 of the Inheritance Tax Act of 1909 (Illinois) is plural and means that both of the parents of the beneficiary claiming exemption must be dead when the relationship commenced. Re Stehhins Estate, 103 N. Y. S. 563; Re Harder Estate, 108 N. Y. S. 131 154; 124 App. Div. (N. Y.) 77; Be Wheeler's Estate, 100 N. Y. S. 1044; Re Edwin Walker Estate, Cook Coimty Court (Illinois), Appraisement No. 3355. Under the above cases a stepchild could not come, within the exemption, as one of the parents of said step- child must have been living when the relationship com- menced. 188. Grandmother Not a ^'Ijineal Descendants- Taxable as Stranger. **The next question is, whether the grandmother was subject to the Collateral Inheritance Tax, under the Act of 7th April, 1826, Purdon 148. The only persons exempted from the operations of that stat- ute are carefully enumerated. They are father, mother, husband, wife, children and lineal descend- ants, born in lawful wedlock. Whoever else takes an estate of inheritance must suffer the tax. The argu- ment here is that the case of a grandmother is casus omiss^is, but we cannot perceive the slightest ground for thinking the Legislature meant to exempt her. It is true that the Act is called a 'Collateral Inher- itance' tax law, and that a grandmother is a lineal and not a collateral relative, but when the enacting clause of a statute embraces * all estate, real, personal and mixed, of every kind whatsoever, passing from any person who may die seized or possessed of such estate,' and then excepts only such takers of the es- tate as are enumerated in the excepting clause, it would be contrary to all rules of construction to en- large the excepting at the expense of the enacting clause. 'Expressio unius, exclusio alterius,' ap- plies here. We must presume the Legislature enu- merated all takers they meant to except. The occa- sion of the law was suggested by those oblique in- heritances which we call collateral, which, though provided for by our intestate laws, are not the com- mon course of estates, not the natural tendencies of property. When such exceptional instances should occur, the Legislature deemed it fair to tax the lucky 132 inheritors altogether beyond the usual rate of taxa- tion, and hence this tax law. Grandmothers are un- usual inheritors, even more so than aunts and un- cles ; and having enjoyed the chances of the two gen- erations between which she stood, there would seem to be no especial reason why that which comes to her from the second generation below her should be ex- empt from public burthens. We think it is as clear that she is within the spirit and reason of the stat- ute as she is within the letter.'' McDowell v. Ad- dams et al.y 45 Pa. 430. 189. Second Class Beneficiaries— Uncle, Aunt, Niece or Nephew, or Any Lineal Descend- ant of the Same. If any person in this class receives over $2,000.00 and not to exceed $20,000.00, an exemption of $2,000.00 is allowed by law, and the rate is two per cent, on the ex- cess of $2,000.00. Illustration: Legacy $20,000.00 Exempt.... 2,000.00 $18,000.00 at 2 % , tax $360.00 If any person in this class receives over $20,000.00 an exemption of $2,000.00 is allowed by law and the rate of tax is four per cent, on the excess of $2,000.00. Illustration: Legacy $25,000.00 Exempt , 2,000.00 $23,000.00 at 4%, tax $920.00 190. Contra. It has been urged before the County Court of Cook County, Illinois, that the proper application of rates to ia3 beneficiaries of the first class (father, mother, child, widow, etc.) is to assess a one per cent, rate on the excess of $20,000.00 up to $100,000.00 and a two per cent, rate on all amounts over $100,000.00. For illustration : John Jones, husband. All personal property $90,000.00 One-half real estate 46,000.00 Dower in other half .., 14,000.00 Transfer in contemplation of death of decedent 10,000.00 Transfer to take effect at death of de- cedent 15,000.00 $175,000.00 $100,000.00 20,000.00 (exemption) $ 80,000.00 at one per cent $ 800.00 75,000.00 at two per cent. 1,500.00 Total tax $2,300.00 Such contention would also apply to the second class. This view of the law was not upheld, the County Court holding as illustrated in the examples given in the fore- going paragraphs. 191. Third Class— Strangers in Blood, Etc. If $500.00 or more is received by each beneficiary the transfer thereof is taxable as follows : The law does not provide for an exemption, but a limitation of the mini- mum amount taxable. $500.00 and over and not exceeding $10,000 3% Transfer of over $10,000 and not exceeding $20,000. . 4fo Transfer of over $20,000 and not exceeding $50,000. . 5% Transfer of over $50,000 and not exceeding $100,000. 6% Transfer of over $100,000 10% 134 192. Exemptions— $500 a Limitation, Not an Ex- emption. Tlie Collateral Inheritance Tax Act of 1885 (N. Y.) as amended in 1887, providing that ^ * an estate which may be valued at a less sum than $500.00'^ shall be exempt from taxation, was not intended to exempt all legacies or be- quests exceeding that sum to the extent of $500.00. The intention was to place a minimum limitation on the amount taxable. If the property transferred equals or exceeds $500.00, it is taxable without an exemption. Matter of Shermell, 125 N. Y. 376; Estate of Bird, 32 N. Y. St. Bep. 899. 193. Exemptions— $500.00 a Limitation. The $500.00 limitation provided by the New York Act of 1885 was not intended to apply to the estate of dece- dent, but rather to fix the minimum value of a bequest or legacy that shall be taxable. Matter of Howe, 112 N. Y. 100. 135 CHAPTER III. Date of Valuing Property, Life Estates, Annuities and Remainders. 194. Section Two. 195. When Life Estate is Exempt — Exemptions to Certain Lineals Abolished. 196. Discrimination Between Ee- mainders to Lineal and Col- lateral Heirs. 197. Constitutional — Discrimina- tion Between Beneficiaries. Property Transferred with- out the State at Death of Donor. 198. Five Per Cent. Bate for Valu- ing Annuities and Estates for Life or Years. 199. Value of Property Transferred — ^Fixed as of what time. 200. Eemainders and Life Estates — how Determined. 201. When Life Estate Deducted and not Taxable. 202. Value of Eemainder — ^How De- termined. 203. Eemainder — Value of — How Determined. 204. Life Estate — How Determined after Decease of Life Ten- ant. 205. Life Estate — Valuation when Tenant Predeceases Ap- praisement. 206. Bond may be Given by Bene- ficiary not in actual Enjoy- ment or Possession. 194. Section Tivo. WTien any property or inter- est therein or income therefrom shall pass or be limited for the life of another, or for a term of years, or to terminate on the expiration of a certain period, the property of the decedent so passing shall be ap- praised immediately after the death of the decedent, and the value of the said life es- tate, term of years or period of limitation shall be fixed upon mortality tables, using the interest rate or income rate of five per cent.; and the value of the remainder in said property so limited shall be ascer- tained by deducting the value of the life estate, term of years or period of limita- tion from the fair market value of the property so limited, and the tax on the several estate or estates, remainder or re- mainders, or interests, shall be immedi- ately due and payable to the treasurer of the proper county, together with interest thereon, and said tax shall accrue as pro- 136 vided in Section Three (3) of this act, and remain a lien upon the entire property limited until paid; provided, that the per- son or persons, body politic or corporate, beneficially interested in property charge- able ivith said tax, elect not to pay the same until they shall come into actual pos- session or enjoyment of such property, then in that case said person or persons, or body politic or corporate, shall give bond to the People of the State of Illinois in a penal sum three times the amount of the tax arising from such property, limited ivith such sureties as the County Judge may approve, conditioned for the payment of the said tax and interest thereon at such time or period as they or their representa- tives may come into the actual possession or enjoyment of said property; ivhich bond shall be filed in the office of the County Clerk of the proper county; provided, fur- ther, that such person or persons, body po- litic or corporate, shall make a full veri- fied return of said property to said County Judge and file the same in his office with- in one year from the death of the decedent, with the bond and sureties as above pro- vided: and, further, said person or persons, body politic or corporate, shall renew said bond every five years after the date of the death of decedent. 195. When Life Estate Is Exempt — Exemptions to Certain Lineals Abolished. Lineals invested with estates for life or years with re- mainder over to collaterals, or strangers were exempt from taxation under Section 2 of the Law of 1895. Ayers v. Chicago Title <& Trust Company, 147 111. 42 ; Billings v. People, 189 111. 472 (Section 2 of Act of 1895 is omitted from Law of 1909). 137 196. Discrimination Betiveen Remainders to liineal and Collateral Heirs. On the question whether Section 2, Law 1895, exempted both life estates and remainders, regardless of relation- ship of remaindermen to testator, and further that if Section 2 was construed to exempt lineals when the re- mainder went to a collateral, that the statute was un- constitutional, the Court held; It is said that the stat- ute discriminates between life tenants with remainder to lineal descendants and life tenants with remainder to col- lateral heirs, by imposing a tax on the first and exclud- ing the second from its operation. But we cannot see that this is a mere arbitrary exaction from one class, while another class, which cannot be differentiated from it, is allowed to go untaxed. A life estate with the fee descending in the lineal line might well be more desirable than a life estate with remainder to collateral heirs or strangers in blood. At any rate there is a sufficient dif- ference upon which the Legislature could, without tran- scending its power, base a classification. Billmgs v. The People, 189 111. 472. 197. Constitutional — Discrimination B e t tt e e n Beneficiaries — Property Transferred With- out the State at Death of Donor. A decedent who died in 1907 a resident of New York did, in 1903, transfer stocks and bonds to her three chil- dren; three-quarters of the income from the same was made payable to the children and one-quarter of the in- come was reserved to the donor (decedent). Although it had been settled by decisions that the reservation of an income from such a transfer brought the same within the Transfer Tax Law, yet it was urged that said Trans- fer Tax Law was unconstitutional on the ground of dis- 138 crimination between beneficiaries. It was also contended that the trust property was not within the jurisdiction of the State of New York for the reason that it was located without that State at the time of death of decedent. The Court held: That the discrimination between beneficia- ries was not unreasonable and that it was within the power of the Legislature to single out classes for taxation and leave other classes exempt, or, taxable at a different rate. The fact that the property was without the State did not affect the liability for the tax in New York. Mat- ter of Kenney, 194 N. Y. 281. 198. Five Per Cent. Rate for Valuing Annuities and Estates for Life or Years. Section 2, L. 1909 (Illinois) fixes an arbitrary rate of ^Ye per cent, to be used in determining the present value of annuities and estates for life or years. 199. Value of Property Transferred— Fixed As of "(Vhat Time. All property transferred is appraisable immediately after the death of decedent, and as of the date of death. Re Graves, 242 111. 212. 200. Remainders and Life Estates — ^How Deter- mined. The value of a remainder is determined by subtracting the present value of dower or estate for life, years or annuity from the corpus of the fund upon which the same is predicated. The difference, or the sum remaining, is the present value of the remainder. People v. Nelms, 241 111. 571. ('See example on page 343.) 201. VKThen Life Estate Deducted and Not Taxable. In passing upon the effect of Section 2 of the Inherit- 139 ance Tax Law of Illinois, in force July 1st, 1895, the Court held that a life estate or a life use to lineals with remainder to lineals effected a tax upon both the life es- tate and the remainders. That it was only in case where a life estate was limited to a lineal with remainder to collateral or stranger that the life estate was exempt and the remainder taxable. Re Kingman, 220 111. 563. Ayers V Chicago Title S Trust Co., 187 111. 42. 202. Value of Remainder — Hoxv- Determined. The value of a vested remainder is determinable and taxable at the date of death of decedent. The remainder is determined by subtracting the present value of the life estate from the property limited. People v. Nelms, 241 ni. 571. In re Lange, 55 N. Y. S. (89 St. Rep.) 750; Mat- ter of Bogert, 25 Misc. Rep. (N. Y.) 466; 55 N. Y. S. (89 St. Rep.) 751. 203. Remainder— Value of— How Determined. The present value of the interest of a widow in prop- erty limited during widowhood, should be deducted from the corpus of the trust in order to ascertain the remain- der, which is the difference between the two. (L. 1892.) Matter of Sloane, 154 N. Y. 109. 204. liif e Estate — How Determined After Decease of Life Tenant. To determine the present value of a life estate under the Transfer Tax Law of 1887, the methods and tables of mortality used by the State Insurance Commissioner should be employed. Re Jones, 59 N. Y. S. 983. 205. Life Estate— Valuation When Tenant Pre- deceases Appraisement. * * Where a tenant for life dies before or during the 140 appraisement, the mortality tables are the basis of determining the value of life estate, and not the act- ual duration of life measured between the date of tenant's death and testator's death. One of the rea- sons given for this view is that the law fixes an arbi- trary method of determining, for taxation, the value of a life estate and remainder. ' ' MoElroy on Trans- fer Tax Law, 2nd Ed. 450-453, citing Matter of Jones, 28 Misc. Rep. (N. Y.) 356-59; N. Y. S. 983.* 206. Bond May Be Given by Beneficiary Not In Actual Enjoyment or Possession. Section 2, Laws of Illinois, 1909 (and 1895) provides that the tax on all interests and remainders shall remain a lien upon the entire property limited until paid. Bene- ficiaries not in actual possession and enjoyment may elect not to pay until possession and enjoyment is effected by giving a bond within one year of the death in three times the amount of the tax * * arising from such property, lim- ited'^ renewable every five years after death of decedent. A strict construction of the words ** arising from such property limited*' would seem to necessitate each bene- ficiary in the corpus to give a bond in three times the amount of the total tax arising therefrom. Unless some arbitrary rule exists inhibiting a more reasonable application of this language to the facts in each case, it would appear that a safe and reasonable interpretation would be that each beneficiary or trustee could give a bond in three times the amount of his par- ticular tax or taxes, as the lien would still attach to the whole property limited, and it would seem that the inten- tion of the Legislature being to fully protect the people in collection, the end is gained by a bond on each particular tax fixed. ♦But see Re Whites Est.. 134 N. Y. S. 281. 141 CHAPTER IV. When Tax Is Due — Interest. 207. Section Three. 208. Tax — is Due and Payable at Death. 209. Tax Paid by Whom! 210. Interest is chargeable from death — Tax must be Paid within six months to obtain discount and avoid interest. 211. County Court cannot go Out- side of Statute to Grant Be- lief. 212. Courts — Cannot Pass on the Wisdom of Legislative Pol- icy. 213. Interest — Bate Determined by Law in Force at Death of Testator. 214. Interest — on Estates Post- poned for Taxation. 215. Deposit to save Discount and Interest. 207. Section Three. All taxes imposed by this Act, unless otherrxrise herein provided for, shall be due and payable, at the death of the decedent, and interest at the rate of six per cent, per annum shall be charged and collected thereon for such time as said taxes are not paid: Provided, That if said tax is paid ivithin six months from the ac- cruing thereof, interest shall not be charged or collected thereon, but a dis- count of five per cent, shall be allowed and deducted from said tax; and in all cases where the executors, administrators or trustees do not pay such tax w^ithin one year from the death of the decedent, they shall be required to give a bond in the form and to the effect prescribed in Section 2 of this Act, for the payment of said tax, to- gether with interest. 208. Tax — ^Is Due and Payable at Death. The tax is not upon the estate of the decedent but upon the right of succession, and it accrues at the same time the estate vests — that is, upon the death of the decedent. In re Graves, 242 111. 212; Nat, Safe Dep. Co. v. Stead, 142 250 m. 584; Provident Hospital v. People, 198 HI. 495; Re Sanford's Estate, 133 N. W. 870 (Neb.). 209. Tax Paid By AVhom? Each beneficiary must pay the tax assessed on Ms suc- cession. Matter of Hoyt, 37 Misc. Rep. (N. Y.) 720; Matter of Vanderhilt, 172 N. Y. 69. 210. Interest Is Chargeable From Death — ^Taz Must Be Paid ^Within Six Months to Ob- tain Discount and Avoid Interest. Taxes must be paid within six months from the death of decedent to obtain discount and avoid interest. An appraisement of the estate of Coddington Billings in the County Court of Cook County presented the following facts. Decedent died intestate, a resident of Cook County, in January, 189'6. Letters of Administration were issued in February, 1896, and an inventory was filed by the administrators in June, 1896, showing per- sonal property $271,000.00 and real estate $39,000.00. On May 31st, 1898, an Appraiser was appointed by the County Judge of Cook County, who returned his re- port on July 16th, 1898, which was approved by the County Judge, reporting that a chancery suit was pend- ing in the Circuit Court of Cook County, involving the ownership of all the property inventoried and that it was impossible to determine until the termination of the chan- cery suit, what property, if any, the decedent owned at death or the value thereof, and recoromended the ap- praisement be deferred until such time as the value of decedent's estate could be determined. The County Judge thereupon entered an order defer- ring the appraisement ** until the litigation is settled or until the further order of this Court.'' The said litiga- 143 tion was determined July 6, 1906, settling the property interests of decedent at death, and on March 30th, 1909, the County Judge of Cook County appointed another Appraiser, who shortly returned a report finding a total net estate of $85,054.00, which said report was approved by the County Judge and the tax fixed at $583.23, plus interest at six per cent, from January 24th, 1896 (date of Billing's death) to date of payment. It was argued that an impossibility preventing a valu- ation and determination of tax within six months from the death should eliminate interest during the pendency of the litigation and that interest should be chargeable from July 6th, 1906, when the litigation was determined. The County Court ordered the collection of interest from the date of death. On this subject see: People v. Rice, 40 Col. 508, 91 Pac. 33; Shelton v. Campbell, 109 Tenn. 690; Common- wealth V. Smith, 20 Pa. St 100 ; Commonwealth 's Appeal, 34 Pa. St. 204; Re Sanford's Estate, 133 N. W. 870 (Neb.). 211. County Court Cannot Go Outside of Statute to Grant Relief. Courts cannot go outside of a statute to grant relief from the express terms of a statute charging interest. Re Louisa Del Busto, 23 Wkly. Notes Cases, 111; Re Fayerweather, 143 N. Y. 114; Re Stewart, 131 N. Y. 274; Re Piatt's Estate, 20 N. Y. S. 396; Re P rout's Estate, 3 N. Y. S. 831; Miller's Estate, 182 Pa. 157. 212. Courts — Cannot Pass On the 'Wisdom of Leg- islative Policy. As to the question of Legislative policy, the Courts have no concern. As to the question of Legislative power 144 there is a judicial duty of inquiry and determination. Gautier v. Ditmar, 129 N. Y. S. 834; People v. Rice, 40 Col. 508. 213. Interest — Rate Determined by Iiaw in Force at Death of Testator. ** Where the rate of interest upon unpaid taxes was changed by the Law of 1892, interest upon taxes accru- ing before the passage of that Act must be charged ac- cording to the old law. {Matter of Milne, 76 Hun 328; Matter of Moore, 90 Hun 162.) '' Greene's Taxable Trans- fers, 2nd Ed. 67. 214. Interest^On Estates Postponed for Taxation. Under the Illinois Act of 1895 the Supreme Court de- termined in People v. McCormick, 208 111. 437, and BiU- ings V. People, 189 111. 472, that no taxes could be as- sessed until the beneficiary became indefeasibly vested with an estate. In other words, all contingent interests, and all vested estates subject to condition of defeasance, were not taxable until the remainders became indefeas- ibly vested. The question whether interest will run from the death of testator to the indefeasibly vesting of the contingent interest is the subject of judicial consideration under the New York Law of 1885 and 1887. Re Davis, 149 N. Y. 539. 215. Deposit to Save Discoimt and Interest. In the early administration of the law in Illinois, there existed a practice of making a deposit with the County Treasurer within six months of decedent's death under an arrangement with such County Treasurer that the five per cent, discount would be allowed depositor and no interest would run on the tax. 145 This practice has long been abolished in Cook County, as clearly without legal sanction. There are no deci- sions directly upon the question. However, in a well- reasoned opinion, the Attorney-General of Illinois* has carefully considered the legality of such a practice and held that a deposit so made does not entitle the depos- itor to the discount nor stop interest. ♦W. H. stead Opinion post. 146 CHAPTER V. Legal REPKESENTATi\rE to Collect Tax From Beneficiary OR Heir. 216. Section Four. 217. Administrator — must Withhold Tax from Share of Benefici- ary. 218. Executor — Duty to Move for Appraisement. 219. Executors and Administrators — Subrogation. 220. Executors — Liability. 221. Power to Apportion Property to pay Legacies. 216. Section Four. Any administrator, executor or trustee having any charge or trust in legacies or property for distribution sub- ject to the said tax shall deduct the tax therefrom, or if the legacy or property be not money he shall collect a tax thereon upon the appraised value thereof from the legatee or person entitled to such prop- erty, and he shall not deliver or be com- pelled to deliver any specific legacy or property subject to tax to any person until he shall have collected the tax thereon; and ivhenever any such legacy shall be charged upon or payable out of real estate the heir or devisee, before the paying the same, shall deduct said tax therefrom, and pay the same to the executor, administra- tor or trustee, and the same shall remain a charge on such real estate until paid, and the payment thereof shall be enforced by the executor, administrator or trustee in the same manner that the said payment of said legacies might be enforced, if, hoiv- ever, such legacy be given in money to any person for a limited period, he shall retain the tax upon the ivhole amount, but if it be not in money he shall make application to the court having jurisdiction of his ac- counts, to make an apportionment if the case requires it, of the sum to be paid into his hands by such legatees, and for such 147 further order relative thereof as the ease may require. 217. Administrator— Must Withhold Tax From Share of Beneficiary. Administrators are charged with the duty of conserv- ing the State's interest in property transferred under the Inheritance Tax Law, by withholding the tax from the beneficiaries' share and paying the same to the proper collector of taxes. Re Carroll, 128 N. W. (Iowa) 929. 218. Executor — Duty to Move for Appraisement. *^The dnty of applying for appraisement is primarily on the executor. {Frazer v. People, 6 Dem. 174.)'' Greene's Taxable Transfers, 2nd Ed. 94. 219— Executors and Administrators— Subrogation. An administrator who pays a tax on realty out of per- sonal property is invested with rights of subrogation. Hughes v. Golden, 44 Misc. Eep. (N. Y.) 128. 220. Executors— Liability. It is the legal duty of administrators and executors to pay the tax out of the shares of the distributees and not out of the estate (unless specially directed by will). The requirement of the statute that the executor or adminis- trator shall make the payment is prescribed to better se- cure such payment, because the government is unwilling to trust solely to the legatees. Matter of GiJion, 169 N. Y. 443. 221. Power to Apportion Property to Pay Lega- cies. The executor of a non-resident testator having prop- erty both within New York and without the State, may, in the payment of legacies utilize the property in New York and save the same from Inheritance Tax. Matter of James, 144 N. Y. 6. 148 CHAPTER VI. Legal Representative — Duty — Liability. 222. Section Five. 223. Executor — ^Personally Liable. 224. Executor — ^Liability. 225. Collection of Tax — Executors, Etc., Must Pay Tax. 226. Executors, Administrators and Trustees Personally Liable. 227. Executors and Administrators Liable to Pay Tax. 228. Executors Liable to Pay Tax. 229. Executor's Liability. 230. Executors — Nonresident Ex- ecutor not Discharged from Liability. 231. Executors — Personally Liable. 232. Executor — When not Liable. 233. Executor and Administrator — Liability not Believed by Discharge without Payment in Probate Proceeding. 234. Subrogation — Covenant of Warranty in Deed Transfer- ring Land Subject to Tax. 222. Section Five. All executors, administrators and trustees shall be personally liable for the payment of taxes and interest, and ivhere proceedings for collection of taxes assessed be had, said executors, adminis- trators and trustees shall be personally liable for the expenses, costs and fees of collection. They shall have full poiver to sell so much of the property of the deced- ent as will enable them to pay said tax, in the same manner as they may be enabled to do by law, for the payment of duties of their testators and intestates, and the amount of said tax shall be paid as herein- after directed. 223. Executor — Personally Liable. The question of personal liability of an executor dis- charged in the Probate Court without payment of tax has arisen under the Illinois Act of 1895 in the County Court of Cook County, the Court holding that the ex- ecutor was personally liable for all taxes (and interest thereon) accruing on the transfer. People V. Gould, No. 24150, County Court, Cook County, Illinois. 149 224. Ezecntor^ — Liability. The distribution of an estate before appraisement un- der the Inheritance Tax Law is no defense to an assess- ment. Estate of Hackett, 14 Misc. Eep. (N. Y.) 282. 225. Collection of Tax — Executors, Etc., Must Pay Tax. Sections 1 and 9 of the Collateral Inheritance Tax Law of 1885 and 1887 impose, in effect, a penalty on executors and administrators for not complying with an express statutory duty to pay the tax. Matter of Strang, 117 App. Div. (N. Y.) 796. 226. Executors, Administrators and Trustees Per- sonally Liable. Executors, trustees and administrators are presumed like other people, to know the law, and they have no right to permit the property on which the State has a lien to pass out of their possession or control until that lien has been discharged. The property comes into their possession subject to this lien. It is their duty to call the attention of the pub- lic officers to the fact that they have the estate in their possession, and that it is subject to the tax, etc. Re Strang, 102 N. Y. S. 1062. 227. Executors and Administrators Liable to Pay Tax. An executor is liable to pay the transfer tax before he can distribute the personal property in his hands, or to the possession of which he is immediately entitled. Mat- ter of Zefita, 167 N. Y. 280-284. 228. Executors Liable to Pay Tax. It is the executor's duty to pay the tax. Matter of Em^ bury, 19 App. Div. (N. Y.) 214-217. 150 229. Executor's Liability. **The executor is personally liable for the payment of tlie tax, and must account therefor on final settle- ment.^^ G-reene's Law of Taxable Transfers, 2nd Ed. 65. 230. Executors — Non-Resident Executor Not Dis- charged From Liability. Decedent died in 1895 a resident of Connecticut, the owner of property located within the State of New York. Administration was had in Connecticut, but not in New York, and said administration was closed and the prop- erty distributed without the payment of the Inheritance Tax due said State of New York. The Court held that the fact of distribution did not relieve either the execu- tor's duty to move for an assessment of the tax, or to make payment of the tax assessed. Matter of Hubbard, 21 Misc. Rep. (N. Y.) 566. 231. Executors — Personally Liable. The executor is personally liable for the tax and the Court has power to enforce payment. Re Prout, 3 N. Y. S. 831; Re Vanderbilt, 10 N. Y. S. 239. 232. Executor-^When Not Liable. When an appraisement is had under Section 13 of the Act of 1885 (N. Y.) and the District Attorney and ex- ecutor are notified the report of the Appraiser is ready and said executor and District Attorney do not appear and the surrogate thereupon enters an order of tax as a taxing officer, no appeal being taken as provided by stat- ute, all parties are barred from reviewing the order. Ex- ecutors who comply with the surrogate's order of tax and make payment pursuant to that order, are relieved from liability. Matter of Wolfe, 137 N. Y. 205. 151 233. Executor and Administrator— Liability Not Relieved by Discharge "Without Payment in Probate Proceeding. A decree of distribution of a court of probate does not protect the executor from liability for Inheritance Tax. The fact the executor acted in good faith is not material. Attorney-General v. Rafferty, 95 N. E. (Mass.) 747. 234. Subrogation — Covenant of Warranty in Deed Transferring Land Subject to Tax. * ' A certain Martha Pollock, owning a tract of land (a portion of which was afterwards purchased by the plaintiff), died unmarried, intestate, and with- out issue, November 13th, 1866, leaving as her heirs at law, brothers and sisters, one of whom was Wil- liam Pollock (plaintiff's vendee). Upon the death of Martha, her estate vested in William Pollock, and the other heirs, subject to the collateral inheritance tax. November 9th, 1868, said Pollock, by John B. Large, his attorney in fact, sold to James McClain, the plaintiff, the said tract of land, containing 54 acres, in fee, by deed of general warranty in ordi- nary form, using the words, ^The said party of the first part in consideration of $30,000,' etc., *have granted, bargained, sold,' etc., *and by these pres- ents do grant, bargain, sell,' etc., Ho the said party of the second part, his heirs and assigns,' the said tract. In 1869, William Pollock died, leaving him surviving him as heirs at law Ann M. Power and other defendants in this suit. John R. Large, the other defendant, was duly appointed administrator. The Collateral Inheritance Tax was ascertained about November 1st, 1884, with twelve per cent, inter- est from November 13th, 1886, and fixed at $988.81. This amount, the plaintiff, under protest to save him- self from execution and sale of said property, on November 20th, 1884, paid to the party authorized to collect it for the commonwealth. The heirs of Wil- liam Pollock have received assets from his estate, 152 real and personal property, far in excess of tlie amount of said tax paid by plaintiff. The defendant set np, by way of defense, that plaintiff ^s title was not under the deed of Pollock, but arose under proceedings in the orphan's court and administrator's deed after his death; but, for reasons appearing in the notes of trial, the defenses was declared legally insufficient, and the juiy in- structed to find a verdict for plaintiff, subject to the opinion of the court as to whether, under the cove- nants in the deed from Pollock, by his attorney in fact, to plaintiff, the latter had a right to recover in this suit the money paid by him as collateral in- heritance tax which was a lien upon the property conveyed by said deed. The plaintiff contends that the words * grant, bargain, and sell,' in the deed un- der the act of twenty-eighth of May, 1715, created a covenant against incumbrances, which was broken as soon as made by this lien, and that plaintiff, being compelled to pay it to save his property, has a right to recover it in this suit. Defendants claim that the lien for the tax was not brought about by the act of the vendor; but, being imposed by the law (subse- quent) to the vesting of the title in him by descent, plaintiff has no remedy upon the covenant arising out of the words * grant, bargain, and seU.' We think the case of Shaffer v. Greer (87 Pa. St. 370) covers this. The incumbrance here was a tax which originated with the title of plaintiff's vendor, and was coincident with, or as between him and his vendee, the plaintiff, it was his duty to see it paid. It seems to us that it would be giving the statute too narrow an interpretation to hold that it did not cover such a case as this. It does not appear a forced con- struction to say that he suffered a charge on the land during his title, for which, as between him and his grantee, he was bound to indemnify him." Large v. McClain, 7 Atl. Eep. 101. 153 CHAPTER Vn. Tax Payable to County Treasurer — Receipt. 235. Section Six. _^ 236. Probate Court Cannot Dis- charge Liability of Legal Representative — Must Ap- peal to Review Appraise- ment. 237. Discharge of Probate Court does not Discharge Executor or Administrator from Lia- bility. 238. Probate Court May Demand Voucher Showing Payment. 235. Section Six. Every sum of money retained by any executor, administrator or trustee, or paid into his hands for any tax on any property, shall be paid by him ivithin thirty days thereafter to the Treasurer of the proper county, and the said Treasurer or Treasurers shall give, and every execu- tor, administrator or trustee shall take, duplicate receipts from him of said pay- ments, one of ivhich receipts he shall im- mediately send to the State Treasurer, whose duty it shall be to charge the Treas- urer so receiving the tax ivith the amount thereof, and shall seal said receipt ivith the seal of his office and countersign the same and return it to the executor, admin- istrator or trustee, ivhereupon it shall be a proper voucher in the settlement of his accounts; but the executor, administrator or trustee shall not be entitled to credits in his accounts or be discharged from lia- bility for such tax unless he shall pur- chase a receipt so sealed and countersigned by the Treasurer and a copy thereof certi- fied by him. 236. Probate Court Cannot Discharge Liability of Legal Representative^Must Appeal to Re- view Appraisement. No executor or administrator is discharged from lia- bility miless the tax is paid and a receipt procured, as 154 provided by statute. An objection to the correctness of the appraisement is not reviewable, except on appeal. Matter of Hackett, 14 Misc. Rep. (N. Y.) 282; 35 N. Y. S. 1051. 237. Discharge of Probate Court Does Not Dig- charge Executor or Admiuistrator From liiability. If the Court of Probate approves a final account and report of distribution, and by order declares discharge of executor or administrator, the order is of no effect in relieving the administrator or executor of liability for payment of Inheritance Tax. Blanchard v. Williamson, 70 111. 647 ; Dunaway v. Camphell,, 59 111. App. 665. 238. Probate Court May Demand Voucher Sboxir* ing Payment. The surrogate has power to compel the executor or ad- ministrator to pay the tax and may demand receipt show- ing payment. Re Jones, 5 Demarest^s Rep. 30. The County Treasurer is the officer authorized by stat- ute to collect and receipt for Inheritance Taxes and in- terest. See * ^ Forms ^' for Inheritance Tax Receipts. 155 CHAPTER VIII. Legal. Representative to Make Known Property Sub- ject TO Tax. 239. Section Seven. "Whenever any of the real estate of ivhich any decedent may die seized shall pass to any body politic or cor- porate, or to any person or persons, or in trust for them, it shall be the duty of the executor, administrator or trustee of such decedent to give information thereof in writing to the Treasurer of the county -where said real estate is situated, within six months after they undertake the execu- tion of their expected duties, or, if the fact be not know^n to them within that period, then within one month after the same shall have come to their knowledge. 156 CHAPTER IX. Refund of Tax. 240. Section Eight. Whenever debts shall be proved against the estate of the decedent after distribution of legacies from which the inheritance tax has been deducted in compliance with this act, and the legatee is required to refund any portion of the legacy, a proportion of the said tax shall be repaid to him by the executor or admin- istrator if the said tax has not been paid into the State or County Treasurer, or by the County Treasurer if it has been so paid. (See Section 10 for comment on power of a State or Comity officer to refund tax.) 157 CHAPTER X. Teansfek of Property by Corporation, Bank, Deposit Company, Institution or Person. 241. Section Nine. 242. Is Constitutional. 243. Litigation Involving Section Nine. 244. Possession and Control of safe Deposit Company. 245. Possession and Control of Safe Deposit Company — Must De- liver the Contents to Owner — State is Part Owner. 246. State's Interest in Property Contained in a Safety De- posit Box. 247. Notice— State Must be Ad- vised of the Contents of the Box. State a Part Owner. 248. Depositary and Safe Deposit Company not Deprived of Constitutional Eight by Ee- quirement of Notice. 249. Depositary has Eemedy. 250. State has Interest equal in de- gree to beneficiary. 251. Interested Parties are Entitled to Knowledge of Contents of Box. 252. Joint Lessees— Co-PartnersMp Property — Constitutional. 253. State's Eight is Fixed at the Time of the Death of Lessee. 254. Does not Impair Obligation of Charter of Safe Deposit Company. 255. No Delivery until Tax is Paid. 256. Safe Deposit Company not De- prived of Property and Lib- erty Without due Process of Law. 257. Depositary Company as Tax Gatherer. 258. Unreasonable Searches and Seizures. 259. Property of safe Deposit Com- pany not Subject to Public Use without Just Compensa- tion. 260. Corporations Liable for Trans- fer of Stock. 261. Notice — Bank, Custodian of Money or Securities — ^Must give the Notice. 262. Will and Codicils not Property within Section Nine. 263. Transfer — what Constitutes within Meaning of Section Nine. 241. Section Nine. If a foreign executor, admin- istrator or trustee shall assign or transfer any stock or obligations in this state stand- ing in the name of a decedent or in trust for a decedent, liable to any such tax, the tax shall be paid to the Treasurer of the proper county on the transfer thereof. No Safe Deposit Company, Trust Company, corporation, bank, or other institution, person or persons, having in possession or under control securities, deposits, or other assets belonging to or standing in the name of a decedent who ivas a resident or non- 158 resident, or belonging to or standing in the joint names of such a decedent and one or more persons, including the shares of the capital stock of, or other interests in, the Safe Deposit Company, Trust Com- pany, corporation, bank or other institu- tion making the delivery or transfer here- in provided, shall deliver or transfer the same to the executors, administrators or legal representatives of said decedent, or to the survivor or survivors when held in the joint names of a decedent d,nd one or more persons, or upon their order or re- quest, unless notice of the time and place of such intended delivery or transfer be served upon the State Treasurer and At- torney General at least ten days prior to said delivery or transfer; nor shall any such Safe Deposit Company, Trust Com- pany, corporation, bank or other institu- tion, person or persons, deliver or trans- fer any securities, deposits or other assets belonging to or standing in the name of a decedent, or belonging to or standing In the joint names of a decedent and one or more persons, including the shares of the capital stock of, or other interests in, the Safe Deposit Company, Trust Company, corporation, bank, or other institution making the delivery or transfer, Tvithout retaining a sufficient portion or amount thereof to pay any tax or interest which may thereafter be assessed on account of the delivery or transfer of such securities, deposits or other assets, including the shares of the capital stock of, or other in- terests in, the Safe Deposit Company, Trust Company, corporation, bank, or other in- stitution making the delivery or transfer, under the provisions of this article, unless the State Treasurer and Attorney General 159 consent thereto in writing. And it shall be lawful for the State Treasurer, together w^ith the Attorney General, personally or by representatives, to examine said securi- ties, deposits or assets at the time of such delivery or transfer. Failure to serve such notice or failure to alloxir such examina- tion, or failure to retain a sufficient por- tion or amount to pay such tax and inter- est as herein provided shall render said Safe Deposit Company, Trust Company, corporation, bank, or other institution, person or persons, liable to the payment of the amount of the tax and interest due or thereafter to become due upon said se- curities, deposits or other assets, including the shares of the capital stock of, or other interests in, the Safe Deposit Company, Trust Company, corporation, bank, or other institution making the delivery or transfer, and in addition thereto, a pen- alty of one thousand dollars, and the pay- ment of such tax and interest thereon, or of the penalty above prescribed, or both, may be enforced in an action brought by the State Treasurer in any court of compe- tent jurisdiction. 242. Is Constitutional. Section 9 of the Inheritance Tax Law of 1909 is a valid and constitutional enactment. National Safe Deposit Co, V. Stead, *250 111. 584-612. 243. Litigation Involving Section Nine. The National Safe Deposit Company of Chicago organ- ized under the laws of Illinois for the purposes, among others, ^^of providing a suitable building or buildings with vaults and safes, with a special regard to protection *Takeii to U. S. Supreme Court on Writ of Error. 160 against loss by fire, robbery or otherwise, and to carry on the business of safety deposit and storage'' filed a bill in chancery in the Circuit Court of Cook County to restrain the Attorney-General, State Treas- urer, and Inheritance Tax Attorney from enforcing Sec- tion 9 against said company and all other corporations, firms, and individuals similarly situated and engaged in renting safes and deposit boxes for hire, on the ground said act was unconstitutional and void. A general de- murrer was sustained and the bill dismissed for want of equity and an appeal taken to the Supreme Court. The Court's decision is digested as follows : 244. Possession and Control of Safe Deposit Com- pany. A corporation organized for the purpose of providing a suitable building with vaults and safes, with a special regard to protection against loss by fire, robbery or other- wise, and to carry on the business of safety deposit and storage, having a contract or contracts with individual or joint box holders, sustains the relation of bailee to such box holders or box renters, and is in control and posses- sion of property in the box, notwithstanding the fact that the character or description of the property in the boxes is unknown to the depositary. 245. Possession and Control of Safe Deposit Com- pany — Must Deliver the Contents to Own- er — State is Part Owner. When the box stands in the individual or joint name of the decedent, it is the duty of the Safety Deposit Com- pany to deliver the contents of said box to those persons, only, to whom the property belongs. The State, by rea- 161 son of the Inheritance Tax Law, may be a part owner of such property. 246. State's Interest in Property Contained in a Safety Deposit Box. *Mt is clear that the State has an interest in every estate that is subject to the payment of an Inherit- ance Tax, and in all such proceedings the Attorney- General or some other designated officer is the repre- sentative of the State.'' 247. Notice — State Must be Advised of the Con- tents of the Box. State a Fart Oivner. When a lessee of the Safety Deposit Company dies, leaving property in a safety deposit box in the posses- sion, or control of, the Safety Deposit Company or a de- positary, the State, by its proper representative, has the right to be advised whether or not it shall ultimately be established that it has an interest in such property, and of the time and place the property will be surrendered and delivered by the Safe Deposit Company or depos- itary to the personal representative, heir or devisee of the decedent, for the purpose of being informed as to whether there is an Inheritance Tax on the succession to the prop- erty in the box. **If such were not held to be the law, all moneys, securities or other valuables held by appellant, in its safety deposit boxes or safes for its lessees, upon the death of a lessee might be transferred to parties other than the State or its representatives and imme- diately removed to a foreign State or country, or con- cealed or otherwise disposed of, and the true owner of the property in part — that is, the State — ^be de- prived of all right to enjoy the use and possession of such property. It therefore legitimately follows, we think, that the provisions of Section 9, which require 162 the representative of the State to have notice of the time when the property held * * * is to be sur- rendered and removed from the custody of the Safe Deposit Company and delivered to the personal rep- resentatives, heir or devisee of the decedent, are not an unreasonable measure to protect the State from loss of property in which it has a vested right.*' 248. Depositary and Safe Deposit Company not Deprived of Constitutional Right by Re- quirement of Notice. A depositary is not deprived of any constitutional right by a requirement that it shall give notice to the State authorities when and where the transfer of prop- erty under its possession or control is to be transferred or delivered. ^'Nor can we say that the appellant (Safe Deposit Company) will be deprived of any of its constitu- tional rights by making it liable for the amount of the Inheritance Tax in case it violates the clear man- date of the law, and parts with the possession of such property without giving notice to the State of such removal and delivery, or in being penalized for so doing.'' 249. Depositary Has Remedy. **It is obvious, should doubts arise as to whether an Inheritance Tax is due on the succession of prop- erty held by a safety deposit company whose former owner is dead, or as to the amount of such tax, the courts will always be open, upon the application of the safety deposit company, the State or those inter- ested, to adjudicate upon such questions as may arise and solve the doubt, so that the appellant's expressed fear that it might be wrongfully required to pay an inheritance tax upon property which it had sup- posedly properly surrendered and delivered, or be penalized for the infraction of the statute and mulct- ed in costs, is, we think, a groundless fear." 163 250. State Has Interest Equal to Beneficiary. The provisions of Section 9 requiring the Safe De- posit Company in possession or control of property standing in the name of the deceased lessee or lessees, to give notices to the State of the time, when and where it will transfer such property, and penalizing the deposi- tary for the failure to comply with the section is a valid exercise of legislative power. **The appellant has no more right under the Con- stitution (either State or National) to ignore the property rights of the State, and to surrender and to deliver the property * * * to the heir or de- visee * * * that it would have to deliver the same to the State in exclusion of the rights of the heir. ^ ' 251. Interested Parties Are Entitled to Knowl- edge of Contents of Box. All parties in interest for whom the appellant holds property are entitled to be informed of the condition and amount of such property so found in safe deposit boxes or safes, before the depositary parts with the possession thereof. **This would be the law which would govern any other bailee under like circumstances, if the statute had not been enacted, and we think no valid reason is or can be assigned why such should not be held to be the law in view of said statute governing safety deposit companies.'' 252. Joint Lessees-^Go-Partnership Property- Constitutional. The provisions of Section 9 concerning property stand- ing in the joint name or names of one or more persons, governs joint lessees of a box, and property standing in the name of a co-partnership. ** There is no constitutional objection to the en- 164 f orcement of the statute as to property owned jointly by a deceased lessee and another and deposited in a safety deposit box or safe, where the property of the several lessees has not been commingled by the acts of the parties but has been kept separate. If it be borne in mind that the co-partnership by the death of the co-partner is dissolved, and that while the assets may be lawfully retained by the surviving member or surviving members of the co-partnership, they ultimately must account to the personal repre- sentative of the deceased partner for his share, and' that the inheritance tax will only be assessed upon the succession to what may remain after the partner- ship debts are paid, it must be held that the statute applies to the co-partnership lease, and to co-part- nership assets. We can see no objection to the per- sonal representative of the deceased partner and all other persons who have or will have an interest in his estate (which would include the State), being in- formed as to the amount, character and value of the co-partnership, safety deposit box or safe, at the time of the dissolution of the partnership by death of a partner. ' ' 253. State's Right is Fixed at the Time of the Death of Lessee. ''The State has a vested financial right in the es- tate of every decedent in this State, which is subject to the payment of an Inheritance Tax, and that right is equal in degree to that of the personal representa- tive, heir or devisee of the decedent, and it vests at the same moment of time that the interest of the personal representative, heir or devisee vests.'' 254. Does not Impair Obligation of Charter of Safe Deposit Company. Where a charter of a safe deposit company provides for the business of erecting and maintaining a suitable building with vaults and safes for the protection of prop- 165 erty against fire, robbery and otherwise, the provisions of Section 9 in no way effect such rights. **A law which, in fact, only requires that the ap- pellant shall not without notice to the State, deliver the property which it has received into its vaults where the owner or part owner of such property has died since its receipt by the appellant, and, if it is subject to an Inheritance Tax, not deliver the same, without consent of the State, until the tax is paid, (cannot) rightfully be said to infringe upon the charter rights of the appellant.'' 255. No Delivery until Tax is Paid. **In short, that Section 9 provides, first, for the determination of the question. Is the property sub- ject to an Inheritance Tax? and if it is, that it must be paid before the appellant can rightfully part with the possession of the property. ' ' 256. Safe Deposit Company not Deprived of Property and Liberty ivithout Due Process of Ijaiv. '* Having heretofore reached the conclusion that a safety deposit company is in possession and control of the securities and other valuables delivered to it by its lessees, and that the relation of bailee and bailor exists between the safety deposit company and its lessee, and that upon the contingency of the death of a lessee who is an owner in whole or in part, of property in the possession of the safety deposit com- pany, the safety deposit company may rightfully hold such deposit, and must hold it, until it can deliver it to the true owner, and that the State is a part owner of the deposit in case it is subject to the pay- ment of an Inheritance Tax, we think by the terms of Section 9, the appellant's right of contract is not infringed upon and that it is not deprived of liberty, property or the due protection of the law." 257. Depositary Company as Tax Gatherer. The objection to Section 9 that appellant is made a 166 trustee and tax gatherer without its consent is not ten- able. ^^The appellant is not a trustee in the ordinary- sense, but a bailee, and the fact, if it were a fact, that it is used, in part, as a tax-assessing and tax- collecting officer would not invalidate the statute. Numerous statutes have been passed by the Legisla- tures of this and other States which require banks, trustees, executors, administrators and agents to re- turn for taxation property in their possession, and such statutes frequently provide that if the banks, trustees, executors, administrators and agents hold- ing such property surrender the same without the tax thereon being paid, they shall be liable for the tax {Walton v. Weshvood, 73 111. 125; Ottawa Glass Co. V. McCaleh, 81 id. 556; Lochwood v. Johnson, 106 id. 334; Warren v. Cook, 116 id. 199; People's Loan S Homestead Ass'n v. Keith, 153 id. 609; Scott v. People, 210 id. 594.) In many instances the corpora- tions have been made collecting officers by being re- quired to deduct the taxes from the stockholders ' in- terests and pay them over to the State. {Haight v. Pittsburgh, Ft. Wayne S Chicago R. R. Co., 73 U. S. 15 ; United States v. Baltimore S Ohio R. R. Co., 84 id. 322 ; National Bank v. Commonwealth, 76 id. 353 ;. Minot V. Philadelphia W. S B. R. R. Co., 52 Pa. 140.) In Citizens' National Bank v. Kentucky, 217 U. S. 445, the revenue law of Kentucky, which charged the banks with the duty of collecting the taxes or shares, was sustained. Mr. Cooley, in his work on taxation (Vol. 2, 3rd., p. 832), in discussing this subject says : ' For the most part, the taxes levied by the State are collected of the persons taxed or enforced against the property in respect to which they are imposed. In a few cases, however, in which such a course could not work injustice, the State may reach the party taxed by indirection, and collect, in the first instance, from some one else, who in turn will become col- lector from the person on which the tax is really im- posed. The reason for this is that in such cases it is more convenient to the State and perhaps makes more certain the collection and it could be resorted 167 to only wlien the case is such that injustice could re- sult to no one. A case of the kind is where a tax is imposed on the dividends or other receipts of share- holders from the profits of corporations, or upon their shares, or upon the interest paid by indebted corporations, and where the corporation is required to make the payment, which it would then deduct from the payment to be made to shareholders or to the holders of the evidences of indebtedness. There is no doubt of the right to do this, except as pay- ments to be made to non-residents, nor even as to them if the statute under which their interests were acquired provided for the levying and collecting of taxes in that manner. Other instances are, where a tax is required under a lease, the amount of which tax may be deducted from the rent, or where the per- son having custody of distilled spirits is obliged to pay the tax thereon, he being given a lien on them for what he so pays. ' We conclude the appellant is not deprived of its liberty, property or due protec- tion of the law or wrongfully made a trustee or tax- gathering agent against its will.'' 258. Unreasonable Searches and Seizures. The provisions of Section 9 do not effect an unreason- able search and seizure of property in safety deposit boxes or in the hands of a depositary. 259. Property of Safe Deposit Company not Sub- ject to Public Use without Just Compen- sation. Section 9 effects no infringement upon the constitu- tional provision, either State or National, which forbids property to be taken for public use without just compen- sation. **In the very nature of things, in the settlement of estates of deceased persons, there must be some delay in determining who is entitled to receive the estate, and as we have heretofore held, when the ap- pellant leases its safety deposit boxes and safes, it 168 and its lessees must necessarily have contracted with reference to the inevitable fact that some of its les- sees will die pending the continuation of their leases. This being true, we think it manifestly follows that appellant 's leases are made and the rent therefor is fixed upon the contingency that in case of the death of a lessee pending the lease, there will be some de- lay in the delivery of the property of the lessee to the true owner/' 260. Corporations Liable for Transfer of Stock. Corporations which transfer stock standing in the name of a non-resident decedent do so at their peril, until tax is paid. Matter of Romaine, 127 N. Y. 80. 261. Notice— Bank, Custodian of Money or Se- curities—Must Give the Notice. ** Where a bank refused to turn over the account of a decedent to his executor on the ground that said executor had not given the required notice of such withdrawal to the State comptroller, Held, that under Section 228, Chap- ter 908, Laws 1896 (N. Y.) and as amended by L. 1902, Chapter 101, the obligation to give notice to the State comptroller of the delivery or transfer of deposits, etc., rests upon the bank, not the executor; and that the fail- ure of the bank to perform its duty in this respect im- posed by the statute cannot affect the right of the ex- ecutor to recover.'' Fallows on Coll. Inh. & Transfer Tax Law of N. Y. 366, citing Rathhone v. Bank of Metrop- oliSy N. Y. Law Journal, June 15th, 1904. 262. Will and Codicils not Property within Sec- tion Nine. The last will and testament and codicils of decedent are not included within the meaning of ** securities, de- posits or other assets," and therefore are not compre- 169 bended by Section 9 of tbe Inberitanee Tax Law (Illi- nois). No notice need be served prior to tbeir de- livery to tbe person, corporation or Court entitled to tbe possession tbereof, nor is a consent necessary to permit its delivery. Attorney-GeneraPs (Illinois) Opinions, 1910, page 935. 263. Transfer — ^What Constitutes within Meaning of Section Nine. If a deposit company or otber institution or person delivers to a joint box bolder, user, surviving partner or otber person a box or property for examination, witbin or witbout tbe vault or office of tbe person or company, and an inspection or examination is made witbout a rep- resentative of tbe deposit or otber company, institution or person being present during tbe entire time, no notice baving been given to tbe Attorney-General and State Treasurer of tbe time and place of sucb examination, tbe company bas made a transfer probibited by statute and is liable for a penalty of $1,000.00 and tbe tax and inter- est on tbe decedent's property. 170 CHAPTER XI. Refund of Tax. 264. Section Ten. 265. County Treasurer — Cannot Ee- fund. 266. State Treasurer — Cannot Ee- fund without Appropriation. 267. Eefund by State — ^Payment must have been under Du- ress or Compulsion. 268. Eefunds — When Court of Claims Awarded Claim for Eefund or Erroneous Pay- ment. 269. State Auditor. 270. Interest — Cannot be Eecov- ered on Eefund. 271. Interest — Cannot be Eecov- ered against the State of Iowa on Eefunds. 272. State's Duty— Eefunds. 264. Section Ten. When any amount of said tax shall have been paid erroneously to the state treasury, it shall be lawful for him on satisfactory proof rendered to him by said county treasurer of said erroneous payments to refund and pay to the execu- tor, administrator or trustee, person or persons who have paid any such tax in er- ror the amount of such tax so paid: Provided, that all applications for the repayment of said tax shall be made with- in two years from the date of said pay- ment. 265. County Treasurer^ — Cannot Refund. People V. Griffith, 245 111. 532. The Supreme Court in People v. Griffith, 245 111. 532, in reversing an order of tlie County Court ordering the County Treasurer to refund the tax, held: *^We don't think it was the intention of said Sec- tion 10 that the County Treasurer should be author- ized thereunder to repay taxes erroneously paid to him. Clearly, under that section, it was only in- tended that the State Treasurer, upon proper proof, should refund such amounts. The provision of the order of the County Court requiring the Comity 171 Treasurer to refund the money in question was not in accordance with this law. The order in that re- spect should have left appellees free to pursue such remedies as they might deem proper and effective for the recovery of the money erroneously paid to the County Treasurer and by him, as we must as- sume, paid to the State Treasurer/' 266. State Treasurer^ — Cannot Refund ivithout Appropriation. If, according to People v. Grifiith, supra, the State Treasurer has the power to refund erroneous payments, yet he cannot pay out money unless an appropriation is made to him by the Legislature providing for such re- payments. (Attorney-General's Opinion — post.) The proper method for securing refund of erroneous payment of Inheritance Tax where the State Treasurer has no appropriation therefor, is a suit in the Court of Claims, pursuant to the law as therein provided. 267. Refund by State — Payment Must Have Been under Duress or Compulsion. It is a well-established principle of law in Illinois that there can be no recovery back of taxes erroneously or illegally paid, unless the same were paid under actual duress or compulsion. (Yates v. Insurance Co,, 200 111. 202, and cases cited.) Griffith, Ex., v. State of Illinois, Court of Claims, decision 1910.* 268. Refunds— When Court of Claims Awarded Claim for Refund of Erroneous Payment. In a suit against the State, brought in the Court of Claims, Jennie Sanford Griffith, executrix of the estate fo Merritt E. Sanford, deceased, was allowed the sum of •Opinion of court given in full, post pages 418-419. 172 $497.09, being the amount claimed by her as an erroneous payment of Inheritance Taxes to the Comity Treasurer of Cook County pursuant to an order of tax of the County Judge of Cook County, in an appraisement of the Sanf ord estate under the Law of 1895. Executrix appealed from said order of tax to the County Court, where the order of the County Judge was reversed, and the County Treas- urer was directed to refund $497.09 as an erroneous payment. The County Treasurer refused payment and on the Attorney-General's appeal to the Supreme Court the refusal of the County Treasurer was sustained and the order of the County Court reversed. (See People v. Griffith, 245 111. 532.) The Supreme Court held that even though the payment was erroneous, Section 10 does not provide for the County Treasurer to make the re- fund, but that the State Treasurer has the power to make repayment. Executrix thereupon filed her suit in the Court of Claims and same was allowed. Griffith, Ex,, v. State of Illinois, Court of Claims (supra), 260. State Auditor. Cannot draw warrant on State Treasurer for amount of an erroneous payment unless appropriation has been made to cover repayments. Attorney-GeneraPs Opin- ions, post. 270. Interest— Cannot be Recovered on Refund. Board of Highivay Com'rs, Bloomington Tp., v. City of Bloomington, 97 N. E. (111.) 280. 271. Interest — Cannot be Recovered against tbe State of Iowa on Refunds. The Inheritance Tax provision for the refunding of taxes where an overpayment was made by the tax payer, 173 does not justify the State in allowing interest upon said overpayment. The statute creates no liability against the State of Iowa for the use of the money. Upon a proper showing it is made the duty of certain officers to order and issue warrant upon the Treasurer of the State to re- fund such taxes. No authority is conferred upon any public officer to order or issue a warrant for any amount as interest. Wieting v. Morrow, 132 N. W. 193. 272. State's Duty— Refunds. It should be the duty and policy of the State to refund money erroneously taken in taxation with the same promptitude that it is paid, when the citizen establishes his right to repayment by those rules of procedure and law necessary to develop and record the facts upon which the claim is based, thereby giving protection to the government from fraud. 174 CHAPTEE XII. Appraisers and Appraisement. 273. Section Eleven. 274. Tax Proceeding is One at Law. 275. County Judge Appoints Ap- praiser — Appeal lies to County Court — The State is an Interested Party and is Eepresented by the Attor- ney General — Appeal Lies to the Supreme Court. 276. County Judge must Appoint Appraiser — Mandamus may be Invoked. 277. County Judge — Has Original Jurisdiction to fix the Tax. 278. County Judge is Assessing and Taxing Officer. 279. County Judge — Is Made a Taxing Officer — ^Fixes tax ^*As of Course.^' Is a Spe- cial System of Taxation. 280. County Judge — Order of Tax must be Entered * 'Forth- with.** Objection to order cannot then be made. 281. County Court — Has Power to Determine all Questions Ee- lating to Taxation. 282. County Court — Construction of Will Conclusive only as to Taxation. 283. When State not Bound by Construction of Will. 284. County Judge has Original Jurisdiction to Determine Tax. 285. Appraiser. 286. Commission to Take Evidence. 287. May Compel Witness to Tes- tify. 288. Not Concluded from Taxing Property Escaping Taxation Because of Executor's Claim it was not Part of Estate. 289. Order of Tax — is Final as to Property Involved. 290. Order of Tax is Final when not Appealed from. 291. Order of Tax Cannot be Modi- fied except by Appeal — Ex- cessive Valuation not Ee- viewable on Petition. 292. Order of Tax is Final. 293. Order of Tax is Final and Ee- appraisement cannot be made. 294. Order of Tax is Final and can Only be Eeviewed by Ap- peal. 295. Cannot Amend Order Assess- ing Tax. 296. Can Amend or Correct Order without Appeal. 297. Cannot Eeverse Order of Tax on Motion. 298. Order of Tax is a Decree or Order of Court. 299. Subrogate Acts Judicially in Entering Order of Tax. 300. Notice of Tax — Presumption of Service by County Judge. 301. County Judge — Must Enter Order According to Direc- tion of Court of Eeview Appeal Cannot be Taken in Piece-meal. 302. Appraisement and Appraiser. 303. Appraiser Fees. 304. Expenses and Disbursements. 305. Legal Counsel for Appraiser. 306. Service is Had by Notice. 307. Appraisement must Proceed under Section Eleven of the Ilinois Law. 308. Inventory — State has Eight to Compel Filing. 309. Appraisement. 310. Practice and Procedure — Which Law Governs. 311. Contingent Estates — All Prop- erty Appraisable — Tax Post- poned. 312. Eesidence — Appraiser May De- termine. 313. Appraiser — Surrogate May Ap- point before Claims are As- certained. 314. Appraiser Cannot Decide Question of Law. 315. Appraiser— May Hear Evi- dence on Deductions. 175 316. Evidence — Presumption in Ab- sence of Proof of Jurisdic- tional Facts. 317. Evidence — Proof must Clearly Identify Property Alleged to have been Transferred by Death. 318. Evidence — Presumption When Deposit in Name of Hus- band and Wife. 319. Evidence — Must Show Income Reversed. 320. Joint Stock Association — Real Estate to be Considered in Valuation. 321. Appraiser ^Report May be Returned for Additional Proof. 322. Appraisement — Second Ap- praisal not Permissible to Increase Value of Assets. 323. Increase or Decrease in Value after Death not Material. 324. Appraisement — Title of Case Must be in Name of Donor of Power. 325. Appraisement — Property not Included in Appraisement can be subsequently ap- praised. 326. Appraiser — If in Doubt Re- ports Property Taxable. 327. Appraiser — Duty Ended with Report. 328. Misappropriation of Property by Executor does not Re- lieve from Taxation as of Death of Decedent. 329. Market Value — ^Fixed as of date of Death. 330. Fair Market Value — Listed Stocks, etc. 331. Market Value — Public Sales of Securities. 332. Market Value — Synonymous with True Value. 333. Market Value — Fixed at Transfer or Whenever As- certainable. 334. When no Market Value — Act- ual Value is Taken. 335. Market Value — Isolated Rec- ord Sales do not Determine. 336. Market Value — Where Evi- dence of sales is not Contra- dicted or rebutted, such Evi- dence must Prevail. 337. Market Value — Good Will can be Taken into Account in Determining Market Value. 338. Range of Market. 339. Deductions — in General. 340. Amount of Administration Fees Allowed. 341. Attorney's Fees and Execu- tor's Commissions for Ad- ministration and Defending Will — Claims of Non-resi- dents. 342. Deductions must be Presented at Appraisement — not after- ward. 343. A 11 o w a n c e of Decedent's Debts. 344. Commissions of Administrator. 345. Commissions of Administrator May be Estimated. 346. Expenses of Administration. 347. Real Estate Taxes — Deducti- ble. 348. General Revenue Taxes Charged to Real Estate should be deducted. 349. General Revenue Tax — ^When not Deductible in an ap- praisement. 350. Trustees — Commissions not De- ductible. 351. Deductions — Mortgages not Deductible from Personalty. 352. Inheritance Tax — Not Deduct- ible. 353. Deductions — ^Inheritance Tax. 354. Burial Lot — When Cost is De- ductible. 355. Deductions — Second Appraise- ment — Assets Increased by Defeating Claims against Estate. 356. Doubtful Deductions rejected. 357. Deduction — Note in Litigation. 358. Deductions — Legal Services for Construction of Will. 359. Deductions — Expenses of Liti- gation between Distributors not Deductible. 360. Ante-nuptial Contract does not Create an Indebtedness of the Estate. 361. Debts of Non-resident Estate — What Deductible from New York Assets. 362. Deductions — Pro Rates in Non- resident Estates. 176 363. Debts— When Chargeable to Assets at Domicile of Non- resident Deductions should be Proportioned. 364. Apportionment of debts be- tween Exempt and Non-ex- empt Property. 365. When one Co-tenant Furnishes money for Improvements. 366. Appeal — C o u n t y Judge to County Court. 367. County Court to Supreme Court. 368. Practice in Cook County, Illi- nois. 369. Appeal — DeNovo — Common Law Proceeding — ^Bill of Ex- ceptions. 370. Notice of Appeal — Attorney for State Comptroller cannot Waive and Confer Jurisdic- tion. 371. Appeal. 372. Appeal — is Necessary to Ee- view Correctness of Assess- ment — Deductions must be Presented to Appraiser. 373. Executor may Appeal. 374. United States Supreme Court — When Construction of State Court will be Followed. 273. Section Eleven. In order to fix the value of property of persons whose estate shall be subject to the payment of said tax, the County Judge, on application of any inter- ested party, or upon his oivn motion, shall appoint some competent person as ap- praiser as often as or v^henever occasion may require, whose duty it shall be forth- with to give such notice by mail, to all persons known to have or claim an inter- est in such property, and to such persons as the County Judge may, by order direct, of the time and place he will appraise such property, and at such time and place to appraise the same at a fair market value, and for that purpose the appraiser is authorized, by leave of the County Judge, to use subpoenas for and to com- pel the attendance of witnesses before him, and to take the evidence of such wit- nesses under oath concerning such prop- erty and the value thereof, and he shall make a report thereof and of such value in writing, to said County Judge, with the depositions of the w^itnesses examined and such other facts in relation thereto and to said matters as said County Judge may, by order require to be filed in the ofiice of the Clerk of said County Court, and from this 177 report the said County Judge shall forth- -with. assess and fix the then cash value of all estates, annuities and life estates or terms of years growing out of said estate, and the tax to which the same is liable, and shall immediately give notice by mail to all parties knoAvn to be interested therein. Any person or persons dissatis- fied ivith the appraisement or assessment may appeal therefrom to the County Court of the proper county ivithin sixty days after the making and filing of such ap- praisement or assessment on paying or giving security satisfactory to the County Judge to pay all costs, together with w^hat- ever taxes shall be fixed by said court. The said appraiser shall be paid by the County Treasurer out of any funds he may have in his hands on account of the in- heritance tax collected in said appraise- ment, as by law provided, on the certifi- cate of the County Judge, such compensa- tion as such Judge may deem just for said appraiser's services as such appraiser, not to exceed ten dollars per day for each day actually and necessarily employed in said appraisement, together w^ith his actual and necessary traveling expenses and dis- bursements, including such witness fees paid by him. 274. Tax Proceeding is One at Law. The proceeding for the assessment of an Inheritance Tax '4s a special statutory one.'' People v. Mills, 247 ni. 621. The tax proceeding is not one in equity but is gov- erned by the rules in law actions. People v. Sholem, 238 ni. 203. 178 275. County Judge Appoints Appraiser — ^Appeal Lies to County Court — The State is an In- terested Party and is Represented by the Attorney-General^Appeal Lies to the Supreme Court. ** Jacob Sholem died testate in* Paris, Illinois, March 1st, 1907, leaving certain property. August 19tli, 1907, on petition of the Attorney General, the County Judge of Edgar County appointed an Ap- praiser to appraise the estate of said deceased un- der the Inheritance Tax Law. After a brief hearing the Appraiser declared the case closed and refused to take any further evidence. The Appraiser there- upon made his report and filed it with the Clerk of the County Court on April 10th, 1908. Thereafter, on April 24th, the County Judge entered an order approving the report of the Appraiser and fixing the cash value of estates given to the beneficiaries and taxes on the same, as provided by Section 11 of said Inheritance Tax Law. (Kurd's Stat. 1908, p. 1822.) From this order the Attorney Greneral prayed and was allowed an appeal to the County Court of Edgar County. This appeal was perfected, and thereafter appellees made a motion in the County Court to dis- miss the appeal, for the reason that the State had no statutory right to appeal from the County Judge to the County Court under said Inheritance Tax Law. This motion was allowed and the appeal dis- missed, whereupon the Attorney General prayed and was allowed an appeal to this Court. The appellees contended that the County Court improperly made an order, based on memoranda kept on the docket of the County Judge, to file nunc pro tunc the Appraiser's report. The question can- not be considered by us, as no cross-errors have been assigned by the appellees. Kantzler v. Bensinger, 214 111. 589; Provart v. Harris, 150 Id. 40; Expanded Metal Fireproofing Co, v. Boyce, 233 Id, 284. Appellees further contend that the question of the right of the State to appeal from the order of the County Judge to the County Court does not di- rectly involve revenue, and therefore this appeal 179 should have been to the Appellate Court and not to the Supreme Court. By Sections 21^ and llj, which were made a part of the Inheritance Tax Law by- amendment in 1901, it is plain that Inheritance Tax cases are appealed directly to the Supreme Court frona the County Court, regardless of whether reve- nue is directly involved. The universal practice, as well before as since these amendments were passed, has been to appeal such matters directly from the County Court to the Supreme Court. Kochersper- ger v. Drake, 167 111. 122 ; Ayers v. Chicago Title <& Trust Co., 187 id. 42; Billings v. People, 189 id. 472; Walker v. People, 192 id. 106; Provident Hospital S Training School v. People, 198 id. 495; People v. McCormick, 208 id. 437 ; People v. Moir estate, 207 id. 180; Connell v. Croshy, 210 id. 380; Rosenthal v. People, 211 id. 306 ; Merrifield Estate v. People, 212 id. 400; In re Estate of Speed, 216 id. 23; People v. Kelley, 218 id. 509 ; In re Estate of Kingman, 220 id, 563 ; In re Estate of Benton, 234 id. 366. The further and chief contention is, that the State has no right of appeal from the order of the County Judge to the County Court. Said Section 11 of the Inheritance Tax Law, after providing for the ap- pointment of the Appraiser and as to the method of finding and reporting the value of the estate, con- tinues: ^From this report the said County Judge shall forthwith assess and fix the then cash value of all estates, annuities and life estates or terms of years growing out of said estate, and the tax to which the same is liable and shall immediately give notice by mail to all parties known to be interested therein. Any person or persons dissatisfied with the appraisement or assessment may appeal there- from to the County Court of the proper County within sixty days after the making and filing of such appraisement or assessment on paying or giving security satisfactory to the County Judge to pay all costs, together with whatever taxes shall be fixed by said Court.* This seems to have been the only provision touching appeals in the law as it stood when first enacted in 1895. The further contention is made that the statute 180 did not intend to give the State the right of appeal from the action of the County Judge, because said Section 11 provides that such appeals shall be al- lowed *on paying or giving security satisfactory to the County Judge, etc.,' and that the State is not required, in appealing, to give bond. We do not think the conclusion contended for follows. Sec- tion 192 of the Revenue Law (Kurd's Stat. 1908, p. 1782) which provides for appeals from the judgment of the County Court in tax matters, provides that Hhe party praying an appeaP shall execute a bond to The People of the State of Illinois, with two or more sureties, to be approved by the Court.' The practice in this State since the enactment of this Section has been uniform to permit an appeal by the State and without requiring a bond. By a fair construction of Section 11, taken in connection with the entire Inheritance Tax Law, it manifestly was intended to give to the People the right to appeal from the order of the County Judge appraising or assessing the tax, to the County Court. This is in accord with the practice and settled rules of law. Any other conclusion would be unnatural and un- reasonable and tend to defeat justice. The further contention of appellees that the order, of appeal in question was from the finding of the County Judge approving the Appraiser's report, when it should have been from the finding of the County Judge assessing and fixing the cash value of the estate, cannot be upheld. The County Judge, by the same order, approved both the Appraiser's report and fixed the cash value and the appeal was plainly from the entire order." People v. Sholem, 238 111. 203. 276. County Judge Must Appoint Appraisexv- Mandamus May be Invoked. In an appeal from an order of the special term, deny- ing application for a peremptory writ of mandamus, re- quiring the surrogate of Kings County, (N. Y.) to ap- point an Appraiser in a transfer tax proceeding on mo- 181 tion of the comptroller, under Laws of 1896, ch. 908, Sec. 230, as amd. by Laws 1904, ch. 758, which provides : **The surrogate either upon his own motion or upon the application of any interested party, includ- ing the comptroller of the State of New York, shall, by order, direct the County Treasurer, in the county in which the office of the Appraiser is not salaried, and in any other county the person or one of such persons so designated as Appraisers, to fix the fair market value of property of persons whose estates shall be subject to the payment of any tax imposed by this article." (Tax Law Article 10 as amended.) The Court held: ^*At the threshold of this inquiry it is important to determine whether this provision is mandatory. It is well settled that where a statute clothes a public officer with power to do an act which con- cerns the public interests, the execution of the power may be insisted upon as a duty even though the language of the statute be permissive only. The language of the statute under consideration is im- perative. The portion of the statute quoted supra was taken from Section 11 of Chapter 399 of the Laws of 1892, but with a significant omission. As the statute originally was it provided : * The surro- gate, upon the application of any interested party * * * shall, as often and whenever occasion may require, appoint a competent person as Appraiser, * * *.' The Court of Appeals said, in Matter of Westurn, (152 N. Y. 93), that this statute left it to the sound discretion of the surrogate to determine when the power should be exercised; and the pres- ent case furnishes a concrete illustration of the rea- son, founded upon experience, that doubtless moved the Legislature to eliminate the words affording ground for this construction. This statute provides the machinery for the assessment and collection of the tax, and makes the surrogate of each county a* part of it. He is required in the first instance to appoint an Appraiser (Tax Law, paragraph 230, as amd. supra) ; upon the report of the Appraiser and 182 any other proof relating to the estate which may be before him, he is required forthwith as of course to determine the cash value of the estate and the amount of tax to which it is liable. (See Tax Law, Par. 232, as amd. by Laws of 1901, Chap. 173.) It is plain that up to this point he acts as an assessing officer merely, of course, judicially the same as every assessor acts. From the initial order imposing the tax an appeal lies in the first instance to the sur- rogate, who thereupon is required to review his own acts as such assessing officer. (See Tax Law, Par. 232, as amd. supra.) The initial step in the pro- ceeding in the appointment of an Appraiser, and the surrogate is required to make such appointment either on his own motion, or upon the application of any interested party, including the State Comptrol- ler ; he must act upon his own motion when he learns of the facts affording reason to believe that such proceeding ought to be instituted, upon the applica- tion of an interested party when a proper applica- tion is made. The reason for making the surrogate the assessing officer and requiring him to act upon his own motion is plain; no other officer in the State has the same opportunity to learn when a transfer tax ought to be imposed, as all resident estates and nonresident estates in which it is necessary to apply for ancillary letters become of record in his office; and although it was said in Matter of O^Donohue (44 App. Div. (N. Y.) 186) that Hhe jurisdiction of the surrogate to appoint an Appraiser is one that may be exercised with or without a petition and of his own motion, whenever in the sound exercise of his discretion he deems it proper to do so' (the ^exer- cise of his discretion' evidently referring to action upon his own motion), I think the duty to act in either case is imperative. Of course, before acting on his own motion, he must determine whether the facts within his official knowledge are such as to re- quire action, and before acting upon the application of an interested parity he must determine whether a proper application has been made, but his duty to act is just as imperative in either case as is the duty of local assessors to obey the command of the 183 statute respecting the performance of their duty, and there is no more reason for saying that he has a discretion in the matter than there is for saying that any officer charged with the performance of a public duty has a discretion whether he will dis- charge such duty. Was a proper application made? The application was made upon a verified petition which set forth facts upon which the jurisdiction of the surrogate to act depended. To be sure the allegations are upon information and belief, but this is good pleading and is expressly authorized by the Code of Civil Proced- ure, whether in an action or in a proceeding in Sur- rogate's Court, and surely more cannot be required respecting the petition for the institution of this proceeding than is required to institute proceedings in the Surrogate's Court. The petition is made by the officer charged by law with the duty of collecting the tax; he cannot know of his own knowledge as to the taxability of these estates, and the very pur- pose of these proceedings, as the law plainly con- templates, is to ascertain the fact. From the affi- davit of the learned surrogate submitted upon this motion, it appears that he is of opinion that oppress- ion to estates may result, unless the State Comp- troller is required to establish, in advance, the facts to ascertain which the proceeding is required to be instituted. The fact that some other officer may not understand his duty furnishes no reason for dis- regarding the statute. But the proceeding need in- volve no expense to the estate. The Appraiser merely ascertains the facts and reports them with the evidence to the surrogate, and the statute guards against the unlawful imposition of a tax, and gives the estate full and complete protection. Those who desire to evade paying what the law imposes in re- turn for the protection of their persons and prop- erty afforded by the State may call the oppression. The danger is not the one feared by the learned surrogate, but that estates legally taxable will escape taxation; respecting resident estates, that, owing to delay, the estate may be wasted or distributed with- out application to the surrogate, or that it may be- 184 come difficult to ascertain the facts and enforce pay- ment of the tax ; respecting nonresident estates, that property subject to tax may be removed from the State without the payment of the tax, except as the transfer of securities of decedents without the pay- ment of the tax may be prevented by another provis- ion of the statute/' The question was raised in this proceeding whether mandamus was the proper remedy. The Court held, that mandamus was the proper remedy. Kelsey v. Church, 112 App. Div. (N. Y.) 408. 277. County Judge— Has Original Jurisdiction to Fix the Tax. *^ Section 11 of the original act provides the County Judge shall appoint a competent person an Appraiser who shall make report of the value of the property to the County Judge, from which report, he (the County Judge), shall fix the cash value of all estates, and shall give notice by mail to all par- ties interested.'' Provident Hospital v. People, 198 111. 495. 278. County Judge is Assessing and Taxing Of- ficer. Section 13, ch. 483, of the Collateral Inheritance Tax Law of 1885 (N. Y.) designates the surrogate to act as an assessing or taxing officer. In such capacity he acts as the State's representative. Matter of Wolfe, 137 N. Y. 205. 279. County Judge-^Is Made a Taxing Officer — Fixes Tax '*as of Course". Is a Special System of Taxation. In reviewing the Section of the New York T'ransfer Tax Law of 1892 providing for the appointment of an Ap- praiser and the assessment of the tax, the Court held: 185 The statute constitutes the surrogate, and him alone, the assessing and taxing officer. After the Appraiser has appraised the property the surrogate enters his order fixing the tax ^ ^ as of course, ^ ' and thereafter any person aggrieved may appeal therefrom. By both the initial Act of 1885 and the subsequent one of 1892, a special state tax not belonging to the system of general taxa- tion, was created. Weston v. Goodrich, 93 Sup. Ct. Rep. (N. Y.) 194. 280. County Judge— Order of Tax Must be En- tered "Forthwith". Objection to Order Cannot Then be Made. The Appellate Division (N. Y.) in construing Section 8, ch. 173, L. 1901, of New York, which relates to the ap- pointment of an Appraiser and the report of said Ap- praiser to the County Judge and the entry of the tax order, said: '^By the provisions of Section 8, ch. 173, it is provided ^that the report of an Appraiser shall be made in duplicate, one of which duplicates shall be filed in the office of the surrogate and the other in the office of the State Comptroller.' From such re- port and other proof relating to any such estate be- fore the surrogate, the surrogate shall forthwith as, of course, determine the cash value of all estates and the amount of tax to which the same are liable.'' The only fair understanding of Section 8, Ch. 173, L. 1901, is that the surrogate shall proceed without the in- tervention of anyone when he has such report before him. Matter of Fuller, 62 App. Div. (N. Y.) 428. Dixon V. Russell, 73 Atl. 51. 281. County Court—Has Power to Determine All Questions Relating to Taxation. The Collateral Inheritance Tax Law of 1885, as 186 amended in 1887 gives the Surrogate Court plenary pow- er to determine all questions bearing upon taxation, and may construe a will for that purpose, or pass upon the testacy or intestacy of decedent. Matter of Ullman, 137 N. Y. 403; Re Peters Estate, 74 N. Y. S. 1028. 282. County Court— Construction of Will Con- clusive Only as to Taxation. The judgment of a surrogate under the Collateral In- heritance Tax Act (N. Y.) interpreting the will or de- ciding the testacy of a decedent adjudicates the question of taxation only. Amherst College v. Ritch, 151 N. Y. 282. Matter of Ullman, 137 N. Y. 403. Re Peter's, 74 ISr. Y. S. 1028. 283. When State not Bound by Construction of Will. ^'An executor who takes one- third of residuary estate ahsolutely unencumbered by any trust, imposed by the will itself, is not relieved from the tax imposed by Law of 1887 (N. Y.) by a judicial construction based on extrinsic evidence, that said executor took the bequest charged with a trust in favor of testatrix's brother.'' McElroy on the Transfer Tax Law (N. Y.) 2nd Ed. 58-59, citing, Matter of Edson, 38 App. Div. (N. Y.) 19, aff'd 159 (N. Y.) 568. 284. County Judge Has Original Jurisdiction to Determine Tax. In a suit to construe a certain provision of the will of decedent instituted in the Supreme Court of the State of New York, the trustee also requested the Court to ascertain whether the property limited by the provision of the will in question was subject to the Collateral In- heritance Tax. The Court held, that the Supreme Court was without jurisdiction to determine originally whether 187 a tax was due. That taxation is a subject outside of the jurisdiction of courts of equity. That the surrogate and the Surrogate Court was invested by the Collateral In- heritance Tax Act with the power to determine questions of taxation thereunder. Weston v. Goodrich, 93 Sup. Ct. Eep. (N. Y.) 194, 86 Hun 194. 285. Appraiser. The County Judge may appoint Appraiser whenever occasion may require. Matter of Lansing, 64 N. Y. S. 1125. 286. Cominissioii to Take Evidence. A Surrogates' Court has power to issue a commission to take the testimony of foreign witnesses in a proceed- ing under the Transfer Tax Law. Re Wallace, 71 App. Div. (N. Y.) 284. 287. May Compel Witness to Testify. A witness who refuses to respond to material inter- rogatives may be forced to answer by a contempt pro- ceeding; no rights are lost to the witness to have taxes reduced by such refusal. Matter of Kennedy, 113 App. Div. (N. Y.) 4. 288. Not Concluded from Taxing Property Es- caping Taxation because of Executor's Claim it ivas not Part of Estate. Property which has escaped taxation in the first ap- praisement, either by omission through inadvertence, or because it was not scheduled by the executor on the ground it was not a part of the estate, may be the sub- ject of another appraisement and the surrogate may ap- point an Appraiser for the purpose of determining the 188 taxation thereof, under Laws 1892, which provide that the surrogate shall as often as, or whenever occasion may require, appoint a competent person as Appraiser. Re Lansing's Estate, 64 N. Y. SL 1125; Re Niven, 61 N. Y. S. 956. 289. Order of Tax— Is Final as to Property In- volved. *' Where the Appraiser is duly appointed and notice of appraisal given and the report confirmed after due notice to the City Comptroller, the State cannot hold the executor personally for the taxes on legacies improperly found exempt by the Appraiser. {Matter of Vanderhilt, 10 N. Y. S. 239.) '' Greene's Law of Taxable Transfers, 2nd Ed. 65. 290. Order of Tax is Final When not Appealed From. Decedent died a resident of New York in December, 1893, limiting a fund of $30,000.00 in trust for the life of his step-daughter, or, until she was married. The residue of the estate was limited in trust for the bene- fit of his daughters. The Appraiser found that the value of the life interest of the respective daughters, as well as the remainders could not be determined, and he made a similar finding as to the $30,000.00 trust. This report was approved by the surrogate July 16th, 1894. On No- vember li6th, 1898, another Appraiser was appointed to determine the tax on the estate of said decedent and he made a report that ^ * no evidence has been presented show- ing deceased left any property within the State of New York subject to the transfer tax.'* It did not appear that any order was made confirming this report, but on December 27th, 1901, another Appraiser was appointed for determining the tax in the estate of said decedent, 189 which Appraiser reported April 22nd, 1903, that the in- come paid to the step-daughter and the three daughters of decedent from the date of testator's death to the time report was made, were subject to tax. This report was confirmed by an order of the surrogate insofar as it im- posed a tax upon the interests of the daughters as fixed. An appeal was taken from this last order on the ground that the first order entered July 16th, 1894, was a com- plete bar to further proceedings. The Court held: *'The report made by the first Appraiser which was confirmed by an order of the Surrogate's Court, precludes subsequent action to determine and fix the transfer tax until the happening of one or the other of the events specified which terminates such trust estates. The situation now is precisely what it was when that order was made, except the amount of in- come paid, and the right to assess the transfer tax manifestly does not depend upon this. {Matter of Shane, 154 N. Y. 109.) That order is in effect, a final determination of the subject and is effectually binding, there being no change in the estate, upon the Comptroller and the executor so long as it re- mains in force. This order was not appealed from. It is the law applicable to the question presented and the Comptroller can no more avoid its effect than can the executor and trustee named in the will. It is binding upon both equally and cannot be avoided by instituting a new proceeding and thereby getting another referee to make a different report. If this could be done, it is not difficult to see that a trustee under a will similar to this one might be subjected to a large personal liability. (Laws 1892, ch. 399, par. 3, 4) even though he strictly obeyed the order of the Surrogate's Court." Matter of Lawrence, 96 App. Div. (N. Y.) 29. 291. Order of Tax Cannot be Modified Except by Appeal— Excessive Valuation not Revieiv- able on Petition. The surrogate acting as assessor fixed the value of 190 property in an appraisement proceeding by the approval of an Appraiser's report, at the sum of $290,000.00. No appeal was taken from this order. Subsequently a motion was allowed by the surrogate vacating the order of tax on the ground that the value as fixed was excessive and that the real value of the property was $139,700.00. The Court held : The first determination of the surrogate re- sulted fairly in a judicial determination in fixing the value of the property. Such determination may be treated no more lightly than the solemn determination of courts of record and should not be set aside except under cir- cumstances similar to those held sufficient to warrant granting a new trial in courts of record. {Matter of Lcmry, 89 App. Div. (N. Y.) 226; Matter of Barnim, 129 App. Div. (N. Y.) 418. 292. Order of Tax is Final. A surrogate entered an order fixing tax which wa;s not appealed from. Subsequently he set aside said order on a motion that certain securities were erroneously as- sessed. The court held: ^*We fail to find our attention has not been called to any authority conferred upon the surrogate to make such an order as the one appealed from. There are provisions for reviewing the deter- mination of the surrogate by appeal and there are pro- visions authorizing him under certain circumstances to modify and set aside adjudications. Matter of Scher- merhorn, 38 App. Div. (N. Y.) 350; Matter of Crerar, 56 App. Div. (N. Y.) 479. 293. Order of Tax is Final and Reappraisement Cannot be Made. Some time subsequent to the date of an order of tax which fixed the value of real estate and the tax thereon, 191 such real estate was sold at public auction and the prices realized were greatly in excess of the values fixed in the appraisal. The comptroller moved for a reappraise- ment. The Court held: In substance that the Comp- troller's evidence should have been adduced at the ap- praisement, and that the order could not be opened on motion. Matter of Bruce, 59 K Y. S. 1083. 294. Order of Tax is Final and Can Only be Re- vie-wed by Appeal. In an appraisement of the estate of Joseph L. Lowry, the decedent's real estate was valued by the Appraiser at $200,000.00. This estimate was made by Cornelius Fergueson, one of the trustees under decedent's wiU. The Appraiser's report was approved by the surrogate on December 30th, 1902. In April of the following year the decedent's real estate was sold fairly and in good faith at public auction for $103,050.00. Acting evidently upon the assumption that this sale was better proof of the actual value of the lands than the expert evidence of the trustees upon which the Appraiser's report was based, and expressly holding that a mistake of fact had been made in fixing the value of the real estate at $200,000.00, the surrogate modified the original order of tax and report of the Appraiser by reducing the valua- tion to the sum of $103,050.00. The Comptroller ob- jected. The Court held: *^ Under the Transfer Tax Law the Stirrogate's Court may do any act in relation to such a tax au- thorized by law to be done by a surrogate in other matters or proceedings coming within his jurisdic- tion (L. 1896, ch. 908, Sec. 229) ; and in such matters or proceedings he may open, vacate, modify or set aside, or enter as of a former time a decree of his Court; or may grant a new trial or hearing for 192 fraud, newly discovered evidence, clerical error or other sufficient cause. Inasmuch as the learned surrogate has expressly based the original modification of his decree upon a mistaken fact in the appraisal which he approved, the principal question to be considered upon the present appeal is whether the errors of fact for which a court of original jurisdiction has power to vacate or modify its judgments, include the deter- mination of a question of value on the trial or hear- ing; which determination, although made on com- petent evidence, appears to have been erroneous in the light of events which have occurred since it was made ; I do not mean matters then existing and sub- sequently discovered but occurrences which have happened wholly subsequent to the trial or hearing * * *. Of course, if a transfer decree can be modi- fied by securing the valuation placed upon the real property of a decedent by the surrogate because it subsequently sells for less than its estimate, it may be modified by increasing such valuation in a case where the property subsequently sells for more. It seems to me that an error of this character * * * must be determined to be an error arising upon a trial and hence, to be not within the purview of Sec- tion 1283, Code Civ. Proc. as made applicable to the surrogate 's court by Section 2481. * * * A prac- tice which would permit judgments fixing values to be open from time to time in cases where a subse- quent sale of the appraised property tended to show the figure fixed by the judgment was too large or too small would lead to intolerable uncertainty and confusion. '^ Matter of Lowry, 89 App. Div. (N. Y.) 226-228. 295. Cannot Amend Order Assessing Tax. The surrogate is without power to amend or open a tax order, either on error of law or fact, without appeal. Matter of Coogan is distinguished on the reasoning that the U. S. bonds were without the jurisdiction, and the order of tax therein void. Matter of Wallace, 28 Misc. Eep. (N. Y.) 603. 193 296. Can Amend or Correct Order xrithout Ap- peal. Where there was no jurisdiction to assess U. S. bonds in an appraisement under L. 1892, (N. Y.), the surrogate has power under L. 1896 to modify order without appeal and direct a refund, although the time of appeal has ex- pired. Matter of Coogan, 27 Misc. Rep. (N. Y.) 563, aff 'd 45 App. Div. (N. Y.) 628; 162 N. Y. 613. 297. Cannot Reverse Order of Tax on Motion. Surrogate cannot without appeal, decree prior order erroneous on the ground payment was made in error. Matter of Schermerhorn, 57 N. Y. S. 26. 298. Order of Tax is a Decree or Order of Court. It was contended that the order of tax was not an order or decree in the ordinary sense of that term. In passing upon this question, the Court said: ^*It is conceded that the specific act under which the tax was imposed has been declared by the Court of Appeals to be unconstitutional, and it must follow that the decree of the Surrogate's Court assessing and fixing the tax was void. The appellant urges that although a void order or judgment of a court may be vacated by that Court without restricting the aggrieved party to his remedy by appeal, still in this case the surrogate is in fact not a surrogate at all when he is fixing a transfer tax, but rather a tax- ing officer acting ministerially, and devoid of power except that conferred upon him by the Tax Law, and that the surrogate as such, has no power to vacate a decree made by the surrogate as taxing officer. As- suming that when he is fixing a tax and making the decree assessing it he is not acting as a surrogate, as the appellant contends, yet the decree upon the taxation becomes a decree or order of his court, and we think that the language of the 6th division of Sec- tion 2481 of the Code of Civil Procedure, together 194 with that Section of 229 of the Tax Law (Laws 1896, ch. 908 as amd. by L. 1901, ch. 173), is broad enough to confer upon him complete jurisdiction to vacate void order of his court. This exact question was the subject of consideration in Matter of Coogan, (27 Misc. Rep. (N. Y.) 563; aff'd sub. nom. Matter of Coogan v. Morgan, 162 N. Y. 613), and we believe the conclusions reached there should be approved. '' Matter of Scrimgeour, 80 App. Div. (N. Y.) 389. 299. Surrogate Acts Judicially in Entering; Order of Tax. * ^ It is perfectly true, of course, that the power of taxation is one which belongs to the legislative de- partment, and it is equally true that some of the functions of a taxing officer are ministerial, but it is well established by authority that in determining the value of the property assessed, the extent of claims to exemption, etc., the taxing officer or board acts judicially. {McLean v. Jephson, 123 N. Y. 142, 149, and authority there cited ; Stanley v. Supervis- ors of Albany, 121 U. S. 535, 550; City of New York V. McLean, 170 N. Y. 374, 383, and authorities there cited). To the extent that the surrogate acts judi- cially in determining the amount of tax to be im- posed upon the privilege of receiving transfers of property there can be no doubt that there is a right of appeal, according to the theory of the learned counsel for the relator, and it must be presumed, upon this motion, that the appeal relates to the judi- cial acts of the surrogate. ' ' Matter of Hull, 109 App. Div. (N. Y.) 248. 300. Notice of Tax: — Presumption of Service by County Judge. It will be presumed that notice of the assessment was given as provided by law. Matter of Miller, 110 N. Y. 216. 195 301. County Judge — Must £nter Order According to Direction of Court of Review — Appeal Cannot be Taken in Piecemeal. **Aii appeal cannot be taken from a judgment or order by piece-meal, i. e., separate appeals cannot be taken from different parts of a judgment or order. There is no authority for two concurrent appeals from the same judgment by the same party on the same question.'' The surrogate must enter the decree of the Court of Eeview according to the mandate thereof. Matter of Cook, 125 App. Div. (N. Y.) 114; 194 N. Y. 400. 302. Appraisement and Appraiser. An appraiser is a public officer (People ex rel, Mc- Knight v. Glynn, 106 N. Y. S. 956), and is appointed by the County Judge and takes an oath of office in each case in which he acts. His appointment is usually evidenced by a written or printed order in each case in which he acts, which order and oath are filed with the Clerk of the County Court. His powers and duties are of a quasi- judicial character. (McElroy on Transfer Tax Law, 2nd Ed. p. 399 and 400). Notice to all persons who have or claim an interest in the property appraisable must be served by the Appraiser, and a time and place fixed for hearings. The Attorney General is the representa- tive of The People and is an ** interested party," entitled to notice of all proceedings. {Re Sholem, 238 HI. 203; National Safe Deposit Co, v. Stead, 250 111. 584). In Cook County, Illinois, a notice should be given the Inheritance Tax Attorney who represents the Attorney General in Inheritance Tax matters in that County. The Appraiser must make written report to the County Judge 196 which shall show his conclusions of value. This report should contain all evidence taken, including exhibits. 303. Appraiser Fees. Section 11 provides that the Appraiser shall be paid such compensation as the County Judge may deem just, not to exceed ten dollars per day for each actual day's service, out of the inheritance collected in the appraise- ment in which he acted; (Act of 1909). The Act of 1895, as amended in 1901, provided for payment of Ap- praiser out of any inheritance tax moneys in hands of County Treasurer. If no tax is collected in an appraise- ment under the Act of 1909, the Appraiser is not entitled to fees. 304. Expenses and Disbursements. The Appraiser is entitled to reimbursement for moneys necessarily expended for witness fees, together with his travelling expenses. Stenographic services when reason- ably valued and paid by him are allowed as disburse- ments in Cook County, Illinois. 305. Ijegal Counsel for Appraiser. The appraiser cannot engage legal counsel and charge the expense to his services. (See Attorney GeneraPs opinions, post.) 306. Service is Had by Notice. Service is had by mailing notice to interested parties. Matter of Winters, 21 Misc. Rep. (N. Y.) 552. Re Van- derhiWs, 10 N. Y. S. 239. 197 307. Appraisement Must Proceed Under Section Eleven of the Illinois Law. The Court of Appeals has referred to Section 13, L. 1885 (N. Y.), as follows: When the machinery of this system is set in motion under Section 13 of the Act, whether upon application of interested parties, or upon his own motion, the surrogate, by force of its provisions, is at once invested with the office and functions of as- sessor and has power to determine the question of whether the property of decedent which passes to others is subject or liable to taxation by the State. Matter of TFoZ/e, 137 N. Y. 205. 308. Inventory — State Has Right to Compel Fil- ing. Sholem died a resident of Illinois, March 1st, 1907, leaving a will, which was admitted to probate in the County Court of Edgar County. Executors qualified, but refused to file an inventory. On August 12th, 1907, the Attorney General filed a petition for an appraiser, who was accordingly appointed, and fijxed the value of the estate without an inventory having been approved by the County Court. The Attorney General prosecuted an appeal to the County Court, which appeal was dismissed on motion of the executors, on the ground that the Attorney General was not invested with the right of appeal, which order of the County Court was reversed. {People v. Sholem, 238 111. 233.) The proceeding was then reinstated in the County Court. The Attorney General thereupon peti- tioned the Court for an order on the executors to file an inventory, the prayer of which petition was denied and an appeal prosecuted to the Supreme Court. It was argued by the executors that the People's representative 198 had no right to urge that the statutes be complied with so far as filing inventories were concerned. The Court held: **It would be strange doctrine to say that the People of the State, who are directly inter- ested in the amount of an estate and entitled to know its extent and value for the pur- poses of an inheritance tax, have no right to call upon a court to enforce their laws. If the inven- tories had been filed as required by law, the repre- sentatives of the People might have been satisfied with the amount represented thereby as the taxable value, but in the absence of the inventories it was necessary to endeavor to ascertain, by means of wit- nesses, what property the estate had. It is said, however, by counsel for the appellees, that the judgment ought not to be reversed if the ruling was wrong, for the reason that the People obtained all necessary information through the ex- amination of witnesses. It may be that all the prop- erty of the estate was discovered and it may be that it was not, and in any event the People were re- quired to take up an unnecessary burden. We can not say that the property was all disclosed, and much complaint is made that the court excluded competent evidence tending to show the amount of the estate. An effort was made to discover assets in the form of loans and mortgages on real estate in Edgar County, and the offered evidence was excluded by the court. Whether the rulings were right or wrong, it cannot be said that it made no difference that the court did not require the executors to make an in- ventory of all the property which had come to their hands, possession or knowledge, or that an inven- tory, under oath, by the surviving partners would have been of no use to the People." People v. Sholem, 244 HI. 502. 309. Appraisement — Value Fixed at Wliat Time. All property should be appraised and the tax fixed on the succession thereto as of the date of death of deced- 199 ent. Re Graves, 242 111. 212 ; Matter of Vassar, 127 N. Y. 1. 310. Practice and Procedure — Wliicli Law Gov- erns. Procedure and rate of tax may be governed by differ- ent Laws — Procedure by the Law in force when the ap- praisement is initiated — The tax by the Law in force at the death effecting the transfer. Matter of Davis, 149 K Y. 539; Re Sloane, 154 N. Y. 109. 311. Contingent Estates — All Property Appraise- able — Tax Postponed. All property, whether vested or contingent, should be appraised, but the tax upon a contingent estate mus,t be postponed until the remainders are capable of valuation and the takers become indefeasibly vested in the prop- erty passing. (L. 1895.) Billings v. People, 189 111. 472. 312. Residence— Appraiser May Determine. *^ Section 231, L. 1896 (N. Y.), seems broad enough to confer authority upon the appraiser to determine the question of residence in the first instance, as he is di- rected not only to issue subpoenas, compel attendance of witnesses, take evidence of such witnesses under oath, and report the same in writing to the surrogate, but he ia also directed to report ^ * such other facts in relation there- to, and to said matter as the surrogate may order or require,^' and the general practice has been for the Ap- praiser to take the proof in relation to the decedent's residence and report the same with his conclusions to the surrogate.'' McElroy on the Transfer Tax Law (N. Y.), 2nd Ed. 206. 200 313. Appraiser — County Judge May Appoint be- fore Claims Are Ascertained. The County Judge has power to appoint an Appraiser and impose the tax due before it is ascertained what claims were owing by decedent at the time of death. Matter of Westurn, 152 N. Y. 93. 314. Appraiser Cannot Decide Question of Law. An Appraiser is without power to determine the ex- emptions of beneficiaries ; this power is, by statute, con- ferred on the surrogate. (Laws of 1885.) Re Viander- hilt's Estate, 10 N. Y. S. 239; Re Astor, 2 N. Y. S. 630. 315. Appraiser — May Hear Evidence on Deduc- tions. The law gives, an Appraiser power to take evidence on deductions. Wormser's Estate, 73 N. Y. S. 748. 316. Evidence — Presumption in Absence of Proof of Jurisdictional Facts. The record must disclose all material facts that are desired to be presented to the Court of Eeview. In a case where the record did not disclose that the property involved was within or without the State and where no point was made on this subject, it must be presumed that the transfer of the property was made within the State. Matter of Keeney, 194 N. Y. 281. 317. Evidence — Proof Must Clearly Identify Property Alleged to Have Been Trans- ferred by Death. 'w In 1896, more than five years, prior to the death of testator, it was claimed by a witness that the testator exhibited to him securities in a safe deposit box alleged 201 to be worth $700,000.00. The executor did not account for that sum or explain where the securities were. The witness did not handle the securities and all he knew was the alleged value thereof as stated by testator. The wit- ness, was hostile to the estate of testator. The develop- ment of these facts did not shift the burden of proof to the executor and the evidence was held insufficient to sustain a tax thereupon. Matter of Kennedy, 113 App. Div. (N. Y.) 4. 318. Evidence — Presumption "When Deposit in Name of Husband and "Wife. In an appraisement proceeding the following evidence was evolved relative to the right of the surviving widow in a savings account standing in her name and that of her deceased husband. '^Deponent further says that the deposits in the foregoing savings, banks, except the deposit in the Irving Savings Bank, are made to Frederick Wil- kens, the decedent, and to Mary Wilken, his wife, this deponent ; that the deposits were made from the earnings jointly acquired by deponent and the said Frederick Wilkens in . the prosecution of a retail liquor saloon business in the City of New York, which was sold in the year 1906.'' Held, to be sufficient to raise a presumption of equal ownership. Re Wilkens Estate, 129 N. Y. S. 600. 319. Evidence— Must Show Income Reserved. In establishing the taxability of property transferred in the lifetime of a donor, evidence must be produced which clearly shows that the income from such property transferred was reserved to the donor. Matter of Thome, 44 App. Div. (N. Y.) 8. 202 320. Joint Stock Association— Real Estate to be Considered in Valuation. Shares of stock of a joint stock association owning real estate, are properly valued by including the real estate as part of the assets of the association. Be Jones, 59 N. Y. S. 983; 172 K Y. 575. 321. Appraiser — Report May be Returned for Ad- ditional Proof. **The Appraiser's report may be sent back to him for additional proof in case the surrogate has not acted upon it. {Matter of Kelley, 29 Misc. Eep. (N. Y.) 169.)" Greene's Law of Taxable Transfers, 2nd ed. 77. 322. Appraisement— Second Appraisal not Per- missible to Increase Value of Assets. Property fairly appraised in a regular proceeding un- der the Tax Law cannot be subjected to a second ap- praisement in order to increase its value. The fact the property may have been sold after the first appraise- ment at a higher value than fixed therein is not material. Matter of Rice, 29 Mis.c. Eep. (N. Y.) 404. 323. Increase or Decrease in Value after Deatb not Material. The increase or accumulation of property after the death of the owner cannot be subjected to a tax. The fact that the property may have depreciated in value after the death does not change the rule of fixing the value as of the date of death. Re Hite, 113 Pac. (Cal.) 1072. 324. Appraisement — Title of Case Must be in Name of Donor of Power. The title of an appraisement should be in the name 203 of the donee of the power exercised, when the proceeding is designed to cover property passing by such transfer. Matter of Lowndes, 60 Misc. Rep. (N. Y.) 506. 325. Appraisement— Property not Included in Appraisement Can be Subsequently Ap« praised. Subsequent to the appraisement of the estate of Mrs. Lansing, who died in October, 1893, it was determined that property purported to have been assigned by Mrs. Lansing to her daughter belonged to said deceased. This property was not included in the appraisement. The Court held the surrogate had power to appoint another appraiser to appraise the property purported to have been assigned, but which, in fact, belonged to Mrs. Lan- sing at the time of her death. Matter of Lansing, 31 Misc. Rep. (N. Y.) 148. 326. Appraiser — ^If in Doubt Reports Property Taxable. Should questions be raised in an appraisement creat- ing a doubt in the appraiser as to the taxability of prop- erty, his report should include it and recommend it for taxation. Re Astor, 17 N. Y. St. Eep. 787. 327. Appraiser — Duty Ended xrith Report. When the appraiser returns his report to the County Judge his duty is ended. Matter of Ludlow, 4 Misc. Rep. (N. Y.) 594. 328. Misappropriation of Property by Executor Does not Relieve from Taxation as of Death of Decedent. In an appraisement of decedent's estate, under the California Laws of 1905, it appeared that misappropria- 204 tion of funds was made by executor, thereby reducing tbe total amount of the estate, and it was urged that the amount of taxable property should be reduced to the ex- tent of such loss. Held, that all property that passed at death was. taxable, and the amount lost by misappropria- tion must be included. Be Bites E state ^ 113 Pac. (Cal.) 1072. 329. Market Value — Fixed as of Date of Death. The value of property is fixed as of the date of deced- ent's death. {Be Graves, 242 111. 212; Ayers v. Title & Trust Co,, 187 111. 42; People v. Nelms, 241 111. 571.) * * The true test of value by which the tax is to be meas- ured is the value of the estate at the time of the trans- fer of title.'' Matter of Davis, 4A N. E. 185-187; 149 N. Y. 539. 330. Fair Market Value— Listed Stocks, Etc. In an appraisement of the estate of Silas B. Cobb, in which there were holdings of large blocks, of the capital stock of various corporations, the question arose whether sales on the Chicago Stock Exchange of small blocks of stock of the same kind as inventoried was the proper basis of valuation, in view of the probability that an offer on the stock exchange of the entire block or blocks of stock held by the executor might cause a large depre- ciation in the market. The Court held: ''One of the witness.es testified that if 6,237 shares of Kailway Company stock were forced upon the market at one time the price of stock would be di- minished and bring much less than the value as shown by the sale of a small block of stock on the date of death." The same testimony was offered in regard to the other securities. The Court held: 205 **As we understand the position of counsel for ap- pellants, it is that the market price of these stocks should have been fixed at the market price as it would be on a certain day, in case the entire hold- ings were forced upon the market, and a forced sale of the same was made without regard to the actual value of the stock per share, or the ordinary method of doing business, in reference to handling, purchas- ing or selling the same. We are unable to concur in the correctness of this view. The property here, valued as it was, was valued at the fair cash market value thereof. Fair market value, as applied in this case, is not what the stocks would bring at a forced sale, but what they would bring at a sale after due notice of the facts, and under fair conditions in the ordinary course of busi- ness. The Inheritance Tax Law provides the method and machinery for the valuation of property coming within the operation of the law. Section 1 of the statute uses the expression ^ clear market value of such property received by each person.' Section ll uses the phrases, Value,' *fair market value,' and 'cash value.' In arriving at the fair value of property, the Appraiser, under the Act, has to be guided by the fair market value thereof, and in as- certaining the same is authorized to call witnesses for that purpose. Under the Act, the Appraiser and the County Judge and the County Court are not lim- ited in the valuation of property to the market quo- tations of the same, but, for the purpose of finding the fair cash value of the same, they may use the quotations of the same on the public exchanges, pri- vate sales of such property, testimony as to the actual value of the same, and their own knowledge of the subject-matter. *Fair market value' has never been construed to mean the selling price of property at a forced or voluntary sale. In Peoria Gas Light Co. v. Peoria Terminal Railway Co., 146 111. 372, it was said (p. 377) : 'The theory upon which evidence of sales of other similar property in the neighborhood at about the same time is held to be admissible, is that it tends to show the fair market value of the property sought 206 to be condemned. * * * But it seems very clear that, to have that tendency, they must have been made under circumstances where they are not com- pulsory, and where the vendor is not compelled to sell at all events, but is. at liberty to invite competi- tion among those desiring to become purchasers.' The very fact that the market would be depressed by forcing large blocks of stock upon it, and forcing such large blocks of stock to sale, indicates that such a sale is not a proper test of the fair cash value of the stock. It has. been held in the State of New York, in pass- ing upon the method adopted by an Appraiser in his appraisement of large quantities of stocks and se- curities, that the correct rule was adopted where the Appraiser based his appraisal upon public sales of securities at the stock exchange. {In re Gould^s Es- tate, 46 N. y. S. 506; People v. Coleman, 107 N. Y. 544.) In re Gould's Estate, supra, it was said: *It is claimed, however, that the rule should be so con- strued that, when the value of large blocks of stock is involved, only the purchase and sale in markets of correspondingly large blocks of stock should be con- sidered, upon the theory that such large blocks would necessarily sell at lower rates than small quantities of stock sold separately, and that throwing large blocks of stock upon the market all at once would have a tendency to produce a break in the market, and perhaps a total inability to get more than a mere nominal price oifered for that stock. * * * Under the construction contended for, the securi- ties involved in this proceeding might have been shown to be of little or no value, by considering that forcing them upon the market in large blocks at one time would break the market, and make them prac- tically unsalable at all. The rule adopted by the Appraiser was the correct rule, and he apparently applied it properly in determining the value of the large amount of securities belonging to the deced- ent's estate.' " Walker v. People, 192 111. 106. 207 331. Market Value — Public Sales of Securities. Public sales of securities on the Stock Exchange is a proper basis for the valuation of securities for the pur- poses of an appraisement under the Transfer Tax Law. **The market value of any stock which is listed at the Stock Exchange in New York and largely dealt in from day to day for a series of months will usually furnish the best measure of value for all purposes. The competi- tion of sellers and buyers, most of them careful and vig- ilant to take account of everything affecting the value of stock in which they deal and each mindful of his own interests and seeking for some personal gain, will almost universally, if time sufficient be taken, fumisii the true measure of the actual value of stock." Mutter of Gould, 19 App. Div. (K Y.) 352. 332. Market Value — Synonymous xirith True Value. True value is synonymous with **real" or market value. Mayor, etc., v. Tunis (N. J.), 78 Atl. 1066. 333. Market Value — Fixed at Transfer or When- ever Ascertainable. Whenever the appraisal is made, the value of the prop- erty is to be appraised according to the fair and clear market value of the interest at the time of the death of the testator. The command of the statute as it stood when this proceeding was instituted was to make the appraisal immediately after the transfer at the fair and clear market value thereof at that time, but if the inter- est was of such a nature that its fair and clear market value could not then be ascertained, it was to be ap- praised whenever such value could be ascertained. Mut- ter of Sloane, 154 N. Y. 109. 208 334. When no Market Value — Actual Value is Taken. In determining the value of shares of stock of a close corporation, which shares were not sold publicly, the Court sustained an Appraiser in basing his value upon the actual worth of s.ecret remedies, good will, assets and earning capacity of the corporation. Matter of Brand- reth, 28 Misc. Eep. (N. Y.) 468. 335. Market Value — Isolated Record Sales do not Determine. In the valuation of the stock of a close corporation whose shares were owned by a family, but for which $110.00 per share had been bid for the common and $107.00 had been reported as the price of the sale of preferred, and which said stock paid in dividends annu- ally ten per cent, on the common and seven per cent, on the preferred, the Court held: No evidence was given as to the intrinsic value of the stock outside of the fact that it paid certain dividends. *^We may, however, take judicial notice of the fact that the value of industrial stocks often does not bear close apparent relations to the rate of dividends, which they may happen to pay at a given time, and the latter is not by any means a con- trolling gauge of values.'' {Re Smith, 71 App. Div. (N. Y.) 605.) It was determined that the preferred was worth $97.50 and the common $100.00. Matter of Cur- tice, 111 App. Div. (N. Y.) 230. 336. Market Value— Wkere Evidence of Sales is not Contradicted or Rebutted, Such Evi- dence Must Prevail. Testatrix died a resident of the State of New York in March, 1897, owning shares of stock in a close corpora- 209 tion, organized under the laws of tlie State of West Vir- ginia, having its principal place of business at Philadel- phia, Pennsylvania. The Appraiser fixed a value of $70,000.00 on 1,382 shares. On an appeal by the executor it "was developed that the stock paid six per cent, in divi- dends between March and December, 1896, and that sub- sequent to the death of the decedent, the stock averaged ten per cent, per annum. In the years 1896 and 1897 stock had been sold for $50.00 per share ; that 500 shares were sold at $50.00 per share in July, 1897. An officer of the company testified that he considered $50.00 a share a fair value. There was no evidence as to the actual earnings of the company, except the general state- ment of the officers of the company, that dividends were declared out of its earnings, and there was no other evi- dence of sales or bids in addition to the above. The Court held : We do not think the evidence adduced would justify a finding that the stock was worth over $50.00 per share. Matter of Smith, 71 App. Div. (N. Y.) 602. 337. Market Value— Good AVill Can be Taken into Account in Determining Market Value. In an appraisement of the shares of a newspaper cor- poration it was held that the good will of the company constituted property which should be considered in ar- riving at the value of the stock. Re Jones, 59 N. Y. S. 983. 338. Range of Market. In considering the length of time constituting a rea- sonable period within which to consider sales of securi- ties as a basis of valuation, it was held that a three- months, period was reasonable. Matter of Crary, 64 N. Y. S. 566. 210 DEDUCTIONS. 339. In General. All enforceable indebtedness due from or chargeable against a decedent, in Ms or her lifetime, and unpaid or discharged at the time of, or by death, and which is col- lectible from decedent's estate, when properly proven in an appraisement proceeding, is deductible from the gross assets chargeable therewith and is not subject to taxa- tion. The tax is imposed on the net estate or property trans- ferred. In addition to the indebtedness of a decedent the costs of administration (Re Graves, 242 111. 212; Connell v. Crosby, 210 HI. 380) and reasonable funeral expenses are deductible, although no express provision is made by the tax law for such deduction. In the administration cost is included : executor or administrator fees and the fees of the attorney for executor or administrator per- formed in the course of their duties as s.uch. Where it is necessary for an executor to defend a will or codicil, the fees of his counsel is a charge deductible from the assets of the estate in an appraisement proceeding. (Connell V. Crosby, 210 111. 380.) The costs of the Clerk of the Court of Probate are de- ductible as a necessary charge against the assets. Mortgages and liens chargeable to real property at the time of death, together with accrued interest to that date, should be deducted. 340. Amount of Administration Fees Allowed. Where an appraisement is closed before the termina- tion > of the administration, it is practically impossible 211 to determine the amount of fees that will be earned by either the executor, administrator or attorney. It is true there is a maximum percentage fixed by law for the executor or administrator, but it is not known until the termination of their duties, what compensation they are entitled to. The amount of fees allowed by the Court of Probate, when based on service performed, may be the proper amount to allow as a deduction in the ap- praisement, but the County Judge is not directed by law to accept the opinion of the Court of Probate. Fees allowed by a Court of Probate based upon an agreement of parties should be received by the Appraiser as information only, and be subjected to careful exam- ination to determine whether they represent a fair amount for deduction. In case, however, fees have been paid to executor, ad- ministrator and attorneys and the legal representative discharged, the Appraiser should not allow more than the sum actually received by such legal representative and attorney. If no fees were paid, none should be al- lowed in the appraisement. The reason for this is mani- fest, in that the tax is based on the value of the property transferred, less charges. Where an appraisement is closed before the termina- tion of administration, the practice of the County Judges of Cook County has been to direct the Appraiser to esti- mate an amount to cover fees and costs, and thus avoid delaying the appraisement. 341. Attorney's Fees and Executor's Commis- sions for Administration and Defending; Will— Claims of Non-Residents. William Drury died a resident of Illinois on March 13th, 1897, seized and possessed of real estate in Illinois 212 of the value of $199,000.00 ; personal property, $27,000.00, and real estate in Kansas, Colorado, Nebraska and Texas of the aggregate value of $94,000.00. Decedent's indebt- edness totaled $126,000.00 in addition to costs and ex- penses of settlement of the estate. All of the indebted- ness was due creditors who resided in Illinois, except a note of $45,000.00 which was due a citizen of Minnesota, but made especially payable at Keithsburg, Mercer County, Illinois. The Court below held that in order to ascertain the amount on which to compute the tax, the value of the personal property should be deducted from the total indebtedness of the estate and the remaining indebtedness should be apportioned on all the real estate, either foreign or domestic, and the tax laid upon lands in Illinois, less the apportionment. On review, the Su- preme Court held: *^The lands in the sister states, were not subject to any specific liens to secure any of the indebtedness or specially charged with the payment of any part of it by any act of the testator, nor was any of the indebtedness due to any citizen of any sister state in which such lands were situate. This ruling operated to increase the amount on which the tax was re- quired to be paid to the extent that the remainder of the indebtedness was so apportioned on the lands in sister states, and by indirection laid a tax on the foreign lands, which, as we have seen, could not be lawfully directly imposed thereon. The ruling was erroneous. If the foreign lands had in any way been subject to an encumbrance or lien, vendor's or other- wise, to secure the payment of indebtedness, of the testator, or if the indebtedness had been due to a citizen of the sister state wherein was situated the real estate belonging to the decedent, a different question might be presented. ' ' Another question arose in this case relative to the de- duction of $12,000.00 expended by the executors in em- 213 ploying counsel to defend the will of decedent. The Court held, upon this question, that the expenses in de- fense of the will should have been deducted and that ad- ministrator's and solicitor's fees in the administration is a proper deduction. Connell v. Crosby, 210 111. 380. 342. Deductions Must be Presented at Appraise- ment^ — Not Afterward. Deductions not presented to the Appraiser cannot be allowed by the surrogate, on motion to amend order of tax. Matter of Morgan, 36 Misc. Rep. (N. Y.) 753; 74 N. Y. S. 478. 343. Allowance of Decedent's Debts. ** Where no proof is made, except by an affidavit of an attorney at law, that a claimed creditor was advised that by a true construction of an agreement he was entitled to claim as survivor, and that the children of the deced- ent who took his estate were also so advised, there is no proper evidence of the existence of a claim, and nothing upon which a deduction for it could be allowed. {Matter of Wormser, 51 App. Div. (N. Y.) 441; modifying 28 Misc. Rep. (N. Y.) 608." Greeners Law of Taxable Transfers, 39. 344. Commissions of Administrator. Fees of an administrator should be allowed as a de- duction in determining the net taxable assets. Matter of Westurn, 152 N. Y. 93. 345. Commissions of Administrator — May be Esti- mated. The fees of an administrator is a proper deduction from the assets of an estate. The Appraiser may esti- 214 mate the total fees allowable, if administration is not closed at the time of the tax proceeding. Matter of Gould, 46 N. Y. S. 506. 346. Expenses of Administration. Expenses of administration, being a charge on the estate, and not to the legatees or devisees, are proper deductions. In the contest of the probate of a will the fees of a temporary administrator are proper deductions. The transfer tax is on the succession of the legatee, de- visee or heir who takes what remains of the estate on distribution after settlement. The amount represented by the administration expenditures never passes to the legatee. {Matter of Westurn, 152 N. Y. 93, distin- guished.) Matter of Gihon, 169 N. Y. 443, modifying 64 App. Div. (N. Y.) 504. 347. Real Estate Taxes — Deductible. C. E. Detmold died testate a resident of New York, July 2d, 1887. His will transferred all his property to his daughters for life, with remainder to their issue — all of which property was subject, however, to a certain annuity payable to his, wife. Decedent's real estate had been assessed previous to his death for the general taxes of 1887 and the assessment rolls ^^had been delivered to the aldermen for the ascertainment of the amount of the tax and its extension by them upon the rolls.'' It was claimed by the remaindermen that these general taxes should be paid from the income of the estate going to the life tenants and that it was, therefore, improperly charged by the executors as liabilities of the estate of decedent. The sole question was, whether such taxes con- stituted a liability of the estate. Held, that a construc- tion of the general laws of New York, which construction 215 would be governed somewhat by an endeavor to protect the State, makes such taxes a charge against decedent's, es.tate. Matter of Bahcock, 115 N. Y. 450. 348. General Revenue Taxes Charged to Real Es- tate Should be Deducted. Real estate taxes chargeable to decedent's real estate prior to his death are deductible in an appraisement pro- ceeding. Eg Liss' Estate, 78 N. Y. S. 969. 349. General Revenue Tax — When not Deductible in an Appraisement. Real estate taxes are not deductions until they are fixed and become a debt against the land. ** Taxation cannot create a debt until there is a tax fixed in amount and perfected in all respects. It is not enough to lay the foundation, but the structure must be built. There can not be a complete tax upon real estate until it is s.o per- fected as to become a lien, because until then the amount cannot be known. (BucJcout v. Citi/ of New York, 176 N. Y. 363 ; 68 N. E. 659.) '' {In re Freimd's Estate, 128 N. Y. S. 48. 350. Trustees — Commissions not Deductible. Trustees objected to an order fixing tax approving an Appraiser's report on the ground that the Appraiser re- fused to allow trustee's commission. The Court held: There is no doubt as to the correctness of deducting com- missions of an executor or administrator. When the executor is discharged and the property turned over to the trustee ^ * for the benefit of those ultimately entitled to receive it, it is in the nature of a luxury for the benefi- ciaries '' and the beneficiaries should pay and be charged with the cost of maintaining the trust. There is no sub- 216 stantial reason why the State should have the tax dimin- ished by the fees of a. trustee. Matter of Becker, 26 Misc. Bep. (N. Y.) 633. 351. Deductions — Mortgages not Deductible from Personalty. An Appraiser should not deduct mortgages upon real estate from the personal property because of a direction in a will to that effect. Matter of Berry, 23 Misc. Eep. (N. Y.) 230. Re Livingston, 1 App. Div. (N. Y.) 568; Re Offerman, 25 App. Div. (N. Y.) 94. Matter of Sutton, 3 App. Div. (N. Y.) 208. 352. Inheritance Tax—- Not Deductible. Testator directed his executor to satisfy the Inher- itance Tax out of his residuary estate. Held that the Inheritance Tax assessable was not deductible. Re Sivift, 137 N. Y. 77. 353. Deductions — Inheritance Tax. The Federal Inheritance Tax is not a legal deduction. Matter of Gihon, 169 N. Y. 443; Matter of Becker, 26 Misc. Eep. (N. Y.) 633. Re Curtis, 31 Misc. Eep. (N. Y.) 83; Matter of Irish, 28 Misc. Eep. (N. Y.) 647. 354. Burial liot— When Cost is Deductible. The expense of a burial lot is deductible. Re Liss* Estate, 78 N. Y. S. 969. 355. Deductions — Second Appraisement -~ Assets Increased by Defeating Claims Against Estate. After an appraisement has been completed, and time 217 of appeal had expired, the executor of the estate suc- ceeded in defeating certain claims which had been al- lowed by the Appraiser as deductions. This increased the ass.ets of the estate. Held, that a new appraisement of such assets accruing by reason of the success of the executor in defeating claims could not be had. Re Rice, 29 Misc. Eep. (N. Y.) 404. 356. Doubtful Deductions Rejected. If a claim is not admitted by the executor, and if such claim will be contested it should not be allowed as a deduction. Neither should the question be reserved until settlement of the claim. Re Rice, 29 Mis.c. Eep. (N. Y.) 404. 357. Deduction — Note in Litigation. When part of the assets of an estate consist of a note upon which the administrator has brought suit for col- lection such note should not be valued. This note is tax- able when determined to be good. Matter of Westurn, 152 N. Y. 93. 358. Deductions — ^Legal Services for Construction of Will. An Appraiser allowed $3,500.00 to cover the probable expenses of a suit to construe a will. This, action was brought by said executors, both in their individual and representative capacity. The Court held: **The action (suit to construe will) would seem unnecessary, as any question that may arise can readily be settled in the Sur- rogate's Court by the decree for distribution. Further, it would appear that its principal object is to benefit the personal interests of the executors. Sum of $3,500.00 disallowed. Matter of Thrall, 30 App. Div. (N. Y.) 271. Aff 'd Matter of Thrall, 157 N. Y. 46. 218 359. Deductions — Expenses of liitigation betiveen Distributees not Deductible. Where distributees of an estate involve themselves in litigation, the cost of such litigation is not deductible. Such cost is in no sense a charge of administration of the estate. Re Sanford's Estate, 123 N. Y. S. 284. 360. Ante-Nuptial Contract Does not Create an Indebtedness of the Estate. Money paid to a widow in lieu of dower and of all other interests she has. as widow pursuant to the terms of an ante-nuptial contract is not a legal deduction from the estate of husband. People v. Estate of Marshall Field, 248 111. 147. 361. Debts of Non-Resident Estate^What De- ductible from Neiv York Assets. '*In valuing stocks and bonds owned by a nonresident decedent, but actually within the State of New York, general indebtedness of the decedent to creditors in New York should not be offset against such assets, particu- larly when such creditors have in their hands the legal title and the right to resort for the payment of their debts to securities belonging to the decedent which are not taxable under the laws of New York. (Matter of Pullman, 46 App. Div. (N. Y.) 574.)'' Greene's Law of Taxable Transfers, 40. 362. Deductions — Fro Rated in Non-Resident Es- tates. In an appraisement under the Transfer Tax Laws of New York, 1908, which provides in substance that when- ever the property of a resident deceased, or of a non- resident decedent, within the state, transferred by will isi 219 not specifically bequeathed, such property shall be deemed for the purpose of taxation to be transferred pro rata among all of the general legatees, including resid- uary legatees, the Court held : That executor could not elect property for the payment of general bequests ; that all of the property of decedent must be distributed pro rata; that deductions should be pro rated; Be Porter's Estate, 124 N. Y. S. 676. Re Gordon's, 186 N. Y. 471. (See Matter Grosvenor, 124 App. Div. (N. Y.) 331.) 363. Debts — When Chargeable to Assets at Domi- cile of Non-Resident Deductions Should be Proportioned. The Collateral Inheritance Tax Law of the State of Iowa provides for a tax on nonresidents, upon the prop- erty transferred by death when within the jurisdiction> of said State. Such property is chargeable with the debts of the estate pro rated according to the percent- age which the property in Iowa bears to the entire es- tate. Wieting v. Morrow, 132 N. W. 193. 364. Apportionment of Debts betxreen Exempt and Non-Exempt Property. Debts of a decedent are chargeable to his entire es- tate and not to a particular part of his estate, thus when decedent owned government bonds exempt from taxa- tion, the debts were not all deductible from the taxable property, but should be pro rated between the taxable and not taxable property. Matter of Purdy, 24 Misc. Eep. (N. Y.) 301. 365. When One Co-Tenant Furnishes Money for Improvements. Money expended on permanent improvements by a Under this stat- ute it has been repeatedly held that future contin- gent estates were not taxable until they vested in possession and the beneficial owner could be ascer- tained. The question now presented is as to whether this statute has been changed. The Legislature, by chapter 76 of the Laws of 1899, amended Section 230 of the Tax Laws, known as chapter 908 of the Laws of 1896, by which the provision of the statute quoted is omitted and in place thereof we have the following: * Whenever a transfer of property is made, upon which there is, or in any contingency there may be a tax imposed, such property shall be appraised at its clear market value immediately upon such transfer, or as soon thereafter as practicable.' Then follow provisions particularly specifying the manner in which the value of future or limited es- tates shall be determined. Then it is provided that *When property is transferred in trust or otherwise, and the rights, interests or estates of the transferees are dependent upon contingencies or conditions whereby they may be wholly or in part created, de- feated, extended or abridged, a ta^ shall be imposed upon said transfer at the highest rate which, on the happening of any of the said contingencies or condi- tions, would be possible under the provisions of this article, and such tax so imposed shall be due and payable forthwith, out of the property transferred. ' ' **It seems to me clear that the Legislature by this amendment intended to change the law upon the sub- ject and to make the transfer tax, upon property transferred in trust payable forthwith. The tax is not required to be paid by the constitutional trans- feree, for, by the provisions of the statute it is to be paid *out of the property transferred.' So that who- ever may ultimately take the property takes that which remains after the payment of the tax. This amendment makes provision for property transferred in trust. It, therefore contemplates defeasible transfers as well as absolute transfers.'' Matter of Vanderhilt, 172 N. Y. 69. Also see Matter of Brez, 172 N. Y. 609, reversing 69 App. Div. (N. Y.) 619. 258 418. Contingent Interests Assessed at Highest Rate and Taxed. *^ George H. Byrd, a resident of New York, died testate, leaving $74,071.54 of personal property sub- ject to the Inheritance Tax Law of this State. The present appeal is prosecuted by the executors of the last will of the testator from an order of the County Court finding that $15,590.68 of said estate was lia- ble to an Inheritance Tax of $155.91. The State, by the Attorney-General, has assigned cross errors which raise the question whether the Court did not err in refusing to hold that the amount of the Inheritance Tax should be $355.91, instead of the amount fixed by the Court. The questions at issue arise out of the following facts. The fourth clause of the testator's will is as follows : Fourth : * If my wife, Lucy Carter Byrd, survives me, I give, devise and bequeath all the rest, residue and remainder of my estate, real and personal and wheresoever situated, unto her during her life, and upon her death to my children, Anne Harrison Byrd, Lucy Carter Byrd, William Byrd and Francis Otway Byrd, share and share alike, and if either of my said children, Anne, Lucy, William or Francis, die leav- ing issue, either before me or before my said wife, then the issue of the child so dying shall take the share which his, her or their parent would have taken if living at her death. * It is admitted that the sum of $74,071.54 of the tes- tator's personal estate was disposed of under the foregoing clause of his will. The widow's estate was appraised at $18,480.86, which, under the statute, was exempt from any inheritance tax. Deducting the value of the widow's life estate from the total leaves $55,590.68, which passes as a remainder under the fourth clause of the will above quoted. Appellants contend that the residue passed as a vested remain- der to the four children named by the testator share and share alike, and that since each share, when thus divided, is less than $20,000 there is nothing left sub- ject to an inheritance tax. Appellee contends that it 259 was the intention of the testator to keep Ms estate intact until the death of his widow, and that at that time it should vest in such of the children named as might survive the widow and the issue, if any, of such of the children named as might die before the widow. In other words, the People contend that the remain- der was devised to the children who might survive the widow as one class and to the issue of such as might predecease her as another class, and that such remainder was therefore contingent. If appellants' contention he sustained, it follows that the court erred in holding that any part of said estate was subject to an Inheritance tax. If appellee ^s conten- tion be sustained, then it is conceded that some amount of Inheritance Tax is due. The principal controversy between the parties re- lates to the construction to be given to the fourth clause of the testator's will. The testator being a resident of the State of New York, his will, so far as it affects personal property, is to be construed by the law of New York. Upon this question both par- ties agree. The only rule of law relating to the con- struction of wills that will be necessary to refer to is that general and well-established rule that, in con- struing a will the intention of the testator, as ex- pressed by him, should be given effect, unless to do so would violate some established principle of law or rule of public policy. This is the same in New York as it is in Illinois. {Weeks v. Cortvell, 104 N. Y. 325; Robinson v. Martin, 200 id. 159.) In the case last above cited the Supreme Court of New York said: * Precedents and rules frequently have but slight value in interpreting wills, for those instruments are rarely, and in the nature of things are not likely to be, similar in terms. When the testator's intention is obscure resort to them may be helpful in ascertain- ing it : Where, upon inspection of the will and upon a consideration of relevant facts and circumstances, an intent is apparent, all rules to the contrary must yield, provided that an intent does not offend against public policy or some positive rule of law. It may well be said that some of the rules of construction re- quire a greater force of intention to control them, 260 but if it be found in the instrument it should be al- lowed/ * * * Gruided by this general rule we think that the in- tention of the testator is so clearly expressed in the fourth clause of his will that it is possible to under- stand it without resorting to technical rules of con- struction. The first sentence in clause four clearly gives the testator's wife a life estate in all of the re- mainder of the estate, both real and personal, wher- ever situated. After devising the life estate to his wife, the testator proceeds as follows: ^And upon her death to my children (naming them), share and share alike.' If the clause had ended here there would be much force in appellants' contention that the remainder was vested, and that the words *upon her death' merely refer to the time when the devisees named were to come into the enjoyment of the estate; but we think that the intention to postpone the vesting as well as the enjoyment of the estate is clearly made to appear by what follows in said clause. The clause in question contains the following additional lan- guage: ^And if either of my said children, Anne, Lucy, William or Francis, die leaving issue, either before me or before my said wife then the issue of the child so dying shall take the share which his, her or their parent would have taken if living at her death/ The words 4f living at her death' clearly indicate that a child must be living at her death — that is, the death of the widow — in order to take under the will. If, as appellants contend, the estate vested in the children at the death of the testator, mani- festly they would not take at the death of the widow. If the testator intended that each of his children should take a vested interest at the time of his death, and wanted to provide for the children of any that might die before the estate vested, he would natur- ally and reasonably have used the words * which his, her or their parent would have taken if living at my death,' but he uses the words 4f living at her death/ referring to the death of his wife. This conclusion seems more reasonable when the fifth clause of the will is read. * * * 261 Had the widow not survived the testator the prop- erty in question would have passed, upon the testa- tor's death, under the fifth clause. There the inten- tion to vest the property at the time of the testa- tor's death in the event the wife did not survive him is made very clear. Beading these two clauses to- gether, we are forced to the conclusion that the tes- tator used the words in the fourth clause, 4f living at her death,' advisedly, and that thereby clearly in- tended that the estate should not vest in the remain- dermen until the death of his widow. In our opin- ion, the remainder to the children was contingent. The Court did not err in holding that there was a liability here under the Inheritance Tax Act but it did err in fixing the amount of said tax. In deter- mining the amount of Inheritance Tax under the In- heritance Tax Law, the Court should take the highest amount that in any contingency would become liable to the tax. A possible contingency here is that three of the four devisees named may die before the wid- ow, leaving no issue. In that contingency the one survivor would receive all of the estate, for the rea- son such one would be the only representative of the class living at the time the estate vests. The court below did not adopt this rule, but supposed the pos- sible contingency that two of the children named should die without issue before the widow, leaving two survivors of the class to take the estate. The court then divided the devise equally between the two supposed survivors and deducted $20,000 from each share to arrive at the amount of the tax due. Under the rule requiring the court to adopt the high- est amount that in any contingency can pass, the amount here was subject to only one deduction of $20,000. No case involving the construction of the Inheritance Tax Law in this regard has heretofore come before this court, but our statute in this respect is identical with the statute of New York. Section 25 of the New York statute has been construed by the Court of Appeals of New York in accordance with these views. {Re Vanderhilt, 172 N. Y. 69 ; Re Brez, 172 N. Y. 609.) 262 The judgment of the County Court of Cook County is reversed on the cross-errors and the cause re- manded to that court, with directions to enter judg- ment for $355.91, which is the correct amount of In- heritance Tax due.'' Byrd v. People, 253 HI. 223. (Adv. sheets.) 419. Tax — When Payment Diminislies Corpus of Trust— Not Ground for Objection. **Both the life tenant and remainderman took their re- spective interests in the property, as a matter of sover- eign power. Neither is the life tenant in a position to complain that the principal of which she is entitled to the use is diminished by the tax, nor can the remainderman resist the imposition of the tax upon the ground that he may never come into possession of the property." Matter of Bushnell, 73 App. Div. (N. Y.) 325. 420. Payment of Tax on Annuities Out of Resi- duum — Amount Paid Is Returnable by De- ducting from Annuity. The payment of Inheritance Taxes fixed upon the pres- ent value of an annuity is payable out of the corpus of the fund limited to support such annuity, and * * The method of returning to the residuary estate the tax so paid by the trustees is as follows: Take for illustration an annuitant whose probable dura- tion of life is ten years. The trustees would deduct from each annual payment as made one-tenth of the tax and restore it to the residuary estate. In the case at bar the death of the annuitant was suggested on the argument as having taken place since that of the testator. Any portion of the trans- fer tax not restored to the estate by the process indi- cated, at the time of the annuitant's death would be a loss which the residuary estate must sustain. ' ' Mat- ter of Tracy, 179 N. Y. 501. 263 421. Payment of Tax— By ^Vhom and from What Property Payable, Section 25 of the Laws of 1909 (Illinois) provides that the tax * ' shall be due and payable forthwith by the execu- tors or trustees out of the property transferred/' In interpreting a similar section of the New York Law, the Court of Appeals held: **It thus appears that whenever a transfer of prop- erty is made, upon which there is, or, by any con- tingency there may be a tax imposed, the property is to be properly appraised at its clear market value, and the transfer tax is due and payable forthwith out of the property transferred. In Matter of Vcmder- hilt, 172 N. Y. 69, this Court construed Section 230 of the Transfer Tax Law (N. Y.) as affecting the pay- ment of tax upon contingent remainders and held that the tax was payable forthwith out of the prop- erty transferred. Judge Haight, writing for the Court, said: It seems to me clear that the Legislature by this amendment intended to change the law upon the sub- ject and to make the transfer tax upon the property transferred in trust, payable forthwith. The tax is not required to be paid by the conditional trans- feree, for, by the provision of the statute it is to be paid out of the property transferred. ' So that whoever may ultimately take the property takes that which remains after the payment of the tax.'' Matter of Tracy, 179 N. Y. 501-509. 422. Payment of Tax— VTlien Payable from In- come. See in Re Hoyt, 76 N. Y. S. 504. 423. Contingent Estates — Reviexir of Law Rela- tive to Taxation Thereof. In the appeal from an appraisement of the estate of George N. Kennedy, deceased, who died September 7th, 264 1901, a resident of New York, the question arose whether future contingent estates were presently taxable. The Court said: ^^The surrogate at first held the interests taxable presently, but on appeal reversed himself, and held they were not taxable until possession thereof was secured by the persons interested therein. This lat- ter decision was based upon a construction of the statute which we regard as erroneous. Prior to 1899, Section 230 of the Tax Law (Ch. 908, p. 795, Laws 1896) as amended by Ch. 284, p. 150, Laws 1897, pro- vided: 'Estates in expectancy which are contingent or de- feasible shall be appraised at their full, undimin- ished value when the persons entitled thereto shall come into the beneficial enjoyment or possession thereof, etc' Under this provision of the statute it was repeat- edly held that future contingent estates were not tax- able until they vested in possession and the benefi- cial owner could be ascertained. Matter of Vander- bilt's Estate, 172 N. Y. 69; 64 N. E. 782. This sec- tion was amended by Chapter 76, p. 100, Laws 1899, and the provision above quoted was omitted, and in place thereof the following provision was inserted : 'Whenever a transfer of property is made, upon which there is, or in any contingency there may be, a tax imposed, such property shall be appraised at its clear market value immediately upon such transfer, or as soon thereafter as practicable * * *. When property is transferred in trust or otherwise, and the rights, interests or estates of the transferees are dependent upon contingencies or conditions whereby they may be wholly or in part created, defeated, ex- tended or abridged, a tax shall be imposed upon said transfer at the highest rate which, on the happening of any of the said contingencies or conditions, would be possible under the provisions of this article, and such tax so imposed shall be due and payable forth- with, out of the property transferred.' And it was held by this amendment that a change 265 was intended making contingent estates taxable forthwith. Matter of VcmderhiWs Estate, supra. In 1901 this section was again amended (Chapters 173, 493, pp. 380, 1226, Laws 1901), by inserting therein after the provisions last above quoted the following : * Estates in expectancy which are contingent or defeasible (and in which proceedings for the deter- mination of the tax have not been held in abeyance) , shall be appraised at their full undiminished value when the persons entitled thereto shall come into the beneficial enjoyment or possession thereof, etc' The controversy is as to the construction of this provision in the amendment of 1901. It will be ob- served that the language, except that which we have included in brackets, is the same as the clause above quoted from the amendment of 1897, which was omit- ted entirely in the amendment of 1899. This lan- guage in the amendment of 1901 does not apply to all estates of the kind named, but is limited by the lan- guage in brackets to those in which proceedings to tax had not been commenced or the taxation had been held in abeyance. The surrogate construed the first clause in this limitation as covering all such estates transferred after the amendment of 1901 went into effect, and therefore as covering the es- tates herein. If this were the intention of the Leg- islature the language inserted in the amendment of 1899, making such estates presently taxable, would not have been retained in the amendment of 1901. There would have been no occasion for it. By the amendment of 1897, these estates were not taxable presently, but the taxation thereof was held in abey- ance. By the amendment of 1899 the language of the amendment of 1897 referred to was omitted, and the provision expressly made for taxation presently. The intention of the Legislature was thus made clear and certain to change from a future to a present taxation in all cases of such estates. Then by the amendment of 1901 this language of the amendment of 1899 was retained, showing the general legislative intent remained the same, and the language here in 266 question was inserted, providing that in certain spe- cified cases a future taxation was intended as under the amendment of 1897. It is apparent that the cases so intended to be provided for were limited in num- ber, and not all the cases thereafter occurring. We think this provision was intended to apply only to those cases unprovided for by the statute of 1899, and left so until 1901, where the transfers had occurred prior to 1899, and there had, under the amendment of 1897, been no proceedings taken to impose the tax ; the taxation had been held in abey- ance until the future time, when the tax should be assessed under the amendment of 1897. In view of the amendment of 1899 omitting the provision as to future assessments contained in the amendment of 1897, these cases were covered by no provision of the statute, and hence this one was inserted in the amendment of 1901 to provide therefor. We do not think the Legislature intended to change the general policy of present, instead of future, assessments of estates of this nature which was clearly indicated in the amendment of 1899, and which was retained in the amendment of 1901.^' Miller v. Tracy et al,, 86 N. Y. S. 1024; 93 App. Div. (N. Y.) 27. 424. Remainders Vesting Under Prior Enact- ment Not Affected by Subsequent Laiv- Tax- ins at Full Value. Decedent died testate in 1887 and by his will provided : * * To my brother, Lonis Meyer, of Cleveland, Ohio, and to members of his family I give the income of $40,000.00 during his life, the principal of this leg- acy to be set apart and invested by my executors, and held by them in trust and the income thereof paid to my said brother, or to his family, at the dis- cretion of said executors, at convenient intervals. If the income is insufficient, then to take from the principal, and etc., at the death of my said brother, such of the principal as remains unexpended, shall go to and be equally divided among his issue, per stirpes/* 267 Louis Meyer survived and died May 13th, 1902, leaving issue. In an appraisement of the estate of William Meyer, under the Law of 1885 as amended in 1887, the Appraiser reported that no appraisement could be made of the bequest of $40,000.00 as it cannot be determined what property will pass to the issue of Louis Meyer. This report was confirmed by the surrogate and no tax was imposed upon the transfer of this bequest. On the death of said Louis Meyer, as aforesaid, another Ap- praiser was appointed and from the testimony before said last Appraiser, it appeared that this fund of $40,- 000.00 was retained by the executors in trust for Louis Meyer ; that the total income of said trust fund was paid by the executors to Louis Meyer and there was also paid to him out of the principal, in pursuance of the discre- tion vested in the trustees, the sum of $14,000.00. That there was in the hands of the surviving trustee, upon the death of Louis Meyer, $30,900.00 in cash, which was pay- able to the remaindermen, referred to in the will of Wil- liam Meyer. The last Appraiser appraised the property in the hands of the trustee as of May 13, 1902, the date of death of Louis Meyer. It was insisted by the trustees that the property was to be valued as of the time of the death of William Meyer and should be taxed as of that time. The Court held that the remainder vested in said remaindermen as of the time of the death of William Meyer. That ac- cording to the language of the will it could not be defi- nitely determined to whom the property went until the death of the life tenant, Louis Meyer. That the trust fund, subject to its depletion vested absolutely in the beneficiaries upon the death of William Meyer. That whatever rights the children of Louis Meyer acquired 268 they acquired at the death of the original testator and that it was this right of succession that was taxable under the statute of 1885 as amended in 1887. Section 230, Tax Law 1896, Ch. 908, as amended by L. 1902, Ch. 496, provides : *^ Estates in expectancy which are defeasible and in which proceedings for the determination of the tax have not been taken, or where the taxation thereof has been held in abeyance, shall be ap- praised at their full undiminished value, when the persons entitled thereto shall come into the benefi- cial enjoyment or possession thereof, without dimi- nution for or on account of any valuation thereto- fore made of the particular estates for the purposes of taxation, etc/' The Court held that this provision is not made to ap- ply to a remainder which had vested prior to the passage of the Act and that it is a universal principle that a retroactive effect will not be given to a law unless such intention is plainly expressed therein. That when the remainder vested a specific tax was assessable upon the transfer to these beneficiaries. Surrogate reversed. Matter of Meyer, 83 App. Div. (N. Y.) 381. 425. Values on Prior Appraisement Not Deter- minative of Subsequently Vesting Estates — No Diminution Allowed on Account of Prior Valuation of Life Estates. *' Joseph Naylor died testate June 7, 1897, dom- iciled in the State of New York, and by his will de- vised real estate in trust for the benefit of his wife during her life and directed upon her death ^ to hold such real estate upon seven separate trusts for the benefit of his seven nephews and nieces respectively, paying to each the net income of one equal one- seventh during his or her life, with remainder in each case to his or her surviving lineal descend- ants. ' 269 An Appraiser was appointed to fix the transfer tax and reported the net value of real estate passing under the will to be $271,000.00. This he (appraiser) divided into seven equal parts, one for each of the life tenants, and fixed the cash value of the life es- tate, as well as the remainder in each case. The value of the life estate of Sarah Morgan Mason (one of the nieces) was fixed at $15,306.00, and the tax imposed thereon was $765.35. The value of the remainder limited upon her life was fixed (by ap- praiser) at $22,316.00, but no tax was imposed thereon because, according to his (appraiser) report it could not then be definitely determined to whom such remainder would ultimately descend. This re- port was confirmed by the surrogate and no appeal was taken therefrom. Said Sarah Morgan Mason died November 27th, 1905, leaving Walter E. Mason and Edgar F. Mason, her sons and only surviving descendants. 'They each, under the will of Joseph Naylor, became entitled to one-half of the one-sev- enth given to their mother for life. Shortly after the mother's death they applied to the surrogate for an order fixing the amount of the transfer (inheri- tance) tax upon the remainder limited upon the life of their mother and which (said remainder) had previously been valued by the Appraiser at $22,- 316.00. The statute in force at the time of Naylor 'g death and under which the transfer tax had to be de- termined was Ch. 287, L. 1897.' A question arose whether the value of the re- mainder as fixed in the original appraisement at $22,316.00 should be the value for taxation passing to Walter E. and Edgar F. Mason, sons. The sur- rogate held that the value of $22,316.00 was not the basis of taxation, but held that the value of the real estate passing in enjoyment to said Walter E. Ma- son and Edgar F. Mason should be determined at the time of the passing and should not be dimin- ished by the value of the estate of their mother, first above fixed and taxed. The Court, in rendering its decision quotes Tax Law N. Y. 1896, Ch. 908, Sec. 230, as amd. by L. 1897, Ch. 284, which provides— 270 * Estates in expectancy which are contingent or de- feasible, shall be appraised at their full undimin- ished value when the persons entitled thereto shall come into the beneficial enjoyment or possession thereof without diminution for, or on account of, any valuation theretofore made of the particular estates for purposes of taxation, upon which said estates in expectancy may have been limited.' It was contended by said remaindermen on appeal to the Surrogate Court that the first appraisement was res adjudicata of the question of taxation and valuation of the property passing by the will of said Naylor. That an error of law was committed in the original appraisement which could only be corrected by appeal and that no appeal was taken by the State, and therefore said State is in no position to assert that the order was erroneous. The Court held, that the value of the estate passing to the remaindermen was not before the first Appraiser. That there was no necessity for, and he had no authority to pass upon that question. {Matter of Earle, 74 App. Div. (N. Y.) 458; Matter of GoeleVs Estate, 78 N. Y. S. 47.) That a judicial determination, whether it be judgment, order or decree, is conclusive only in re- spect to the grounds covered by it and the necessary facts passed upon to uphold it, although it, in ex- press terms, purports to determine a particular fact, yet if such fact were immaterial, the judgment, order or decree will not conclude the parties in reference thereto. That it is only material, relevant and nec- essary facts decided which are finally and conclu- sively determined. (Stokes v. Foote, 172 N. Y. 327; House V. Lockwood, 137 N. Y. 259 ; Springer v. Bien, 128 N. Y. 99; Campbell v. Gonsalus, 25 N. Y. 613, etc.). The Court further held that the fact that the Ap- praiser undertook to determine the value of the es- tate which would ultimately pass to the remainder- men, did not bind them because they were not rep- resented, and if it did not bind them it cannot be claimed that it bound the State. In this case the remaindermen had no notice of 271 the appraisement. A tax was assessed upon the full value of the real estate passing to Walter R. and Edgar F. Mason without diminution of the life es- tate. Matter of Mason, 120 App. Div. (N. Y.) 738.'' 426. Remainder^ — Effect of Prior Valuation on Second Appraisement of Property Post- poned for Taxation. A testator died in August, 1897, leaving a will, by which he gave one-half of his residuary estate in trust for the benefit of his son Eobert, directing his executor to pay to said son upon attaining majority, his share in the residuary estate. In a proceeding theretofore had for the purpose of assessing the transfer tax, the Ap- praiser determined the present value of the use of the fund of $500,000.00 for the period intervening between the death of the testator and his majority. In the Ap- praiser's report the value of the remainder interest, as shown by the certificate of the insurance department, which was attached to said report, was $399,675.00. The Appraiser reported that the said remainder, as well as other interests of a similar character passing by the will, were not then taxable, as it was not then ascertainable to whom said interests would finally pass. An order was entered on such report, fixing the tax, and providing **that the matter of fixing the tax, on the interests or shares in remainder passing under said will which may be subject to taxation under the said Act, be, and the same is hereby, reserved until it is ascertainable to whom the interests of shares in remainder will finally pass. The legatee attained the age of 21 years in January, 1901, when the said sum of $500,000.00 became payable, as directed by the will. The executors ask that the Court make an order fixing the tax upon the interest in re- 272 mainder in said sum at the value ascertained by the Appraiser, as above stated. An order was submitted which assesses the tax upon the value of the remainder interest as fixed by the Appraiser's report. By the laws in existence at the date of death of the decedent (Section 230, C. 908, L. 1896, as amd. by Ch. 284, L. 1897, estates in expectancy, which are contin- gent or defeasible shall be appraised at their full, un- diminished value when the person entitled thereto shall come into the beneficial enjoyment or possession thereof, without diminution for or on account of any valuation theretofore made of the particular estates for purposes of taxation, upon which said estates in expectancy may have been limited. Chap. 76 of the Laws of 1899, which became a law March 14th of that year, in amending Sec- tion 230, omitted the clause quoted, and provided for the immediate assessment and payment of the tax upon con- tingent interests. The value of the estate now transferred by the exec- utor to the legatee must be assessed at the value of the principal fund, undiminished by the value of the estate during the minority of the legatee, heretofore assessed for the purpose of taxation. Re Goelet^s E state , 78 N. Y. S. 47. 427. "When Contingent or Vested Remainder Not Presently Taxable. It has been held in Matter of Bahcoch, 37 Misc. Eep. (N. Y.) 445 ; 75 N. Y. S. 926, and affirmed in 81 App. Div. (N. Y.) 645, 81 N. Y. S. 1117, that a limitation giving a life tenant the right to use a part or all of the principal is not taxable until the death of the tenant. 273 428. Estates Appraised in Illinois After July 1, 1909. A decedent who died prior to July 1st, 1909, and on or after July 1st, 1895, transferring property within the jurisdiction of the State of Illinois, but first appraised after July 1st, 1909, is taxable at the rates and entitled to exemptions as provided by the law of 1895. Matter of Davis, 149 N. Y. 539. But the procedure in the appraise- ment proceeding is governed by the law in force at the time of appraisement. Matter of Sloane, 154 N. Y. 109. 274 CHAPTEE XXIV. Compromise of Tax. 429. Section Twenty-six. The State Treasurer, by and with the consent of the Attorney General expressed in w^riting, is hereby empowered and authorized to enter into an agreement with the trustees of any estate in which remainders or expectant estates have been of such a nature, or so disposed and circumstances that the taxes therein were held not presently payable or where the interests of the legatees or devisees were not ascertainable, or w^here the inter- ests of the legatees or devisees were not as- certainable under an act to tax gifts, lega- cies, and inheritances, etc., in force July 1, 1885 (1895) and amendments thereto; and to compound such taxes upon such terms as may be deemed equitable and expedient; and to grant discharge to said trustees upon the payment of the taxes provided for in such composition: Provided, how^- ever, that no such composition shall be conclusive, in favor of said trustees as against the interests of such cestuis que trust as may possess either present rights of enjoyment or fixed absolute or inde- feasible rights of future enjoyment, or of such as w^ould possess such rights in the event of the immediate termination of par- ticular estates, unless they consent thereto, either personally, -when competent, or by g^uardian. Composition or settlement made or effected under the provisions of this section shall be executed in triplicate, and one copy filed in the office of the State Treasurer, one copy in the office of the clerk of the County Court wherein the ap- praisement was had or the tax was paid, 275 and one copy delivered to the executors, ad- ministrators or trustees -wlio shall be par- ties thereto. 429a. Clerical Error. The reference to *^An Act to Tax Gifts, Legacies, and Inheritances, etc., in force July 1, 1885'' is a clerical er- ror. The Act referred to is the Inheritance Tax Law of 1895. No questions have arisen under this Section which have been considered or reviewed by a Court. (The form composition agreement used in settlements of tax under this Section is found under ** Forms''). 276 CHAPTER XXV. Special Guardian. 430. Section Twenty-seven. I 432. Special Guardian — when Nec- 431. Special Guardian — ^when Un- I essary. necessary. I 430. Section Twenty-seven. If it appears at any stage of an inheritance tax proceeding that any person knoivn to be interested therein is an infant or person under disability, the county judge may appoint a special guar- dian of such infant or person under dis- ability. 431. Special Guardian— When Unnecessary. When the law fails to provide for the representation of minors by special guardian, the surrogate's order cannot be attacked on the ground that minors were not before the court, and if such minors were in any way before the court, their interests were comprehended in the appraisement. Matter of Jones, 54 Misc. Rep. (N. Y.) 202. Matter of Post, 5 App. Div. (N. Y.) 113. 432. Special Guardian— When Necessary. When an appraisement involves the interest of minors to the extent that their rights may be affected, such minors should be represented by special guardians. Re Gould's Estate, 48 N. Y. S. 872. 277 CHAPTER XXVI. Exception of Religious, Educational, Chabitablb and Benevolent Bequests. 433. Section Twenty-eight. 434. Exemptions to Religious, Edu- cational and Benevolent In- stitutions — Amendment of 1901— Illinois. 435. Foreign Educational Corpora- tion Taxable — Amendment 1901 Constitutional. 436. Charity — Definition. 437. Public Charity — Statute of a Horse with Drinking Foun- tain. 438. Religious Corporation — when Organized under Laws of Foreign State. Foreign Corporations — United States a Foreign Corpora- tion — is taxable as a Bene- ficiary. Foreign Religious and Charita- ble Corporations — ^Faet of Holding Property in Taxing State Immaterial. 439. 440. 441. Exemptions — Foreign Charity with Branch in Taxing State. 442. Charitable Bequests — When Bequest to Local Branch of a Foreign Corporation is Ex- empt. 443. Charitable Bequest s — ^Law Construed to Favor Exemp- tion. 444. Educational in Part — When one of the Purposes of Cor- poration is Educational. 445. Exemption — Municipal Corpo- ration not Exempt. 446. Bequest for saying Mass is a Charitable Bequest and Ex- empt from Taxation. 447. Foreign Corporation — Property Within the Taxing State. 448. Young Men's Christian Asso- ciation — ^when Exempt. 433. Section Twenty-eight. Wlien the beneficial interests of any property or income there- from shall pass to or for the use of any hospital, religious, educational, bible, mis- sionary, tract, scientific, benevolent or charitable purpose, or to any trustee, bishop or minister of any church or reli- gious denomination, held and used exclu- sively for the religious, educational or charitable uses and purposes of such church or religious denomination, institu- tion or corporation, by grant, gift, bequest or otherwise, the same shall not be subject to any such duty or tax, but this provision shall not apply to any corporation w^hich has the right to make dividends or distrib- ute profits or assets among its members. 278 434. Exemptions to Religions, Edncational and Benevolent Institutions — Amendment of 1901— Illinois. One Caldwell died June 7th, A. D. 1901, a resident of the State of Illinois, and by his will limited his residuary- estate to the Provident Hospital of Chicago, Illinois. On May 10th, A. D. 1901, prior to the death, the amendment to the Inheritance Tax Law of 1895 was approved. On July 1st, A. D. 1901, said amendment, allowing exemp- tions to charitable, religious, educational and benevo- lent institutions went into effect. It was contended that the amendment precluded the County Judge from enter- taining proceedings for the collection of a tax upon the property passing to the Provident Hospital, on the ground that the appraisement was not instituted until after the amendment took effect. The Court held: '^It is not denied that upon the death of Dr. Cald- well, June 7th, A. D. 1901, the property bequeathed became immediately impressed with the liability to tax under the Act of 1895, but it is said that on the first day of July, the property came under the op- eration of this amendment which declares it shall not be subject to any such duty or tax. This position however plausible is, we think, unsound. By the provisions of the original Act the tax in question became due and payable at the death of the testator and was a lien upon the property bequeathed to ap- pellant from that date. The right of the State to collect it was then complete. The amendment has no retroactive effect." Provident Hospital v. Peo- ple, 198 111. 495. 435. Foreign Edncational Corporation Taxable- Amendment 1901 Constitutional. The Supreme Court of Illinois in considering the taxa- bility of a foreign educational corporation, said: ** Fannie Speed, deceased, late a citizen and resi- dent of the State of Kentucky, by her last will and 279 testament devised certain real estate in the City of Chicago to the Board of Education of the Kentucky Annual Conference of the Methodist Episcopal Church, a corporation organized and existing by virtue of the laws of the State of Kentucky, with power to form an educational fund, to be styled the * Centenary Educational Fund' for the promotion of literature, education, art, morality and religion with- in the bounds of said conference, to be held and used exclusively for education and religious purposes in the State of Kentucky, and it was stipulated that said corporation is not permitted to make dividends or distribution of profits or assets among its mem- bers or stockholders, and that said corporation does not have or maintain an office in the State of Dli- nois or engage in educational or religious work there- in. The County Court of Cook County ruled that under the provisions of *An Act to Tax Gifts, Lega- cies and Inheritances in certain cases, and to pro- vide for the collection of same^ approved June 15, 1895, and the act amendatory thereof approved May 10, 1901, said Board of Education was liable to pay the sum of $6,280.50 as a succession or inheri- tance tax on the right to take the property under said devise. This appeal questions the correctness of that ruling. The amendatory Act of 1901 was adopted for the purpose of relieving certain bequests, devises or gifts from the operation of the original Act of 1895. There is nothing in this amendatory act to indi- cate that it was the Legislative intent that its pro- visions should apply to corporations created under the laws of a sister state. It is a universally ac- cepted rule of construction that an act of the Gen- eral Assembly of a State granting powers, privi- leges or immunities to corporations must be held to applj only to corporations created under the au- thority of that state over which such state has the power of visitation and control, unless the intent that the Act shall apply to other than domestic cor- porations is plainly expressed in the terms of the act. Dos Pass OS on Inheritance Tax Law (2nd Ed). Sec. 36; People v. Western Seaman's Friend Soci- 280 ety, 87 111. 246; Bailie's Estate, 38 N. E. Rep. 1007; Humphrey v. State, 70 id, 957. The appellant board contends that the amendatory act of 1901, if construed as having operation only to exempt corporations organized under the laws of the State of Illinois, is inconsistent with the prin- ciples of taxation established by Sections 1 and 2 of article 9 of the constitution of the State of Illi- nois. Section 1 of article 9 of the constitution of 1870 has reference only to general taxation, and it is conceded in no manner restricts the power of the General Assembly to lay a tax upon the right to succeed to the title to property within the State by inheritance tax from a deceased owner of such prop- erty or by devises and bequests to be found in a will of such deceased owner. It is, however, con- tended that Section 1 establishes the principle that all taxation shall be uniform as to the class upon which it operates ; that Section 2 of article 9 limits the power of the General Assembly, when enacting statutes providing for the taxation of other objects or subjects than such as are referred to in Section 1, to the extent of requiring that the principles of taxa- tion established by said Section 1 shall be uniform as to the class upon which it operates. The argument further is: * Uniformity of taxation, as extending to persons or property in the same class, implies, necessarily, uniformity of exemption as to these same persons or property. Lack of uniformity in the latter respect would be destructive of the form- er ^ and it is urged in the same behalf that under the construction given to the amendatory section of the inheritance law, property devoted to educational, re- ligious or charitable purposes is to be subjected to the inheritance or succession tax if the corporation selected to administer the trust is one organized under the laws of another state than that of Illi- nois, and that property devoted to the same purposes shall be relieved of the tax if committed to the ad- ministration of a corporation created under the laws of the State of Illinois. Inheritance or succession taxes are not laid on the property inherited or taken by devise or be- 281 quest, but on the right to inherit or to take such property. The right to take property in pursuance of the Statute of descent or of the Statute pertaining to wills is property, but only for the reason that the law-making body of the State has seen fit to cre- ate the right to so take by inheritance or by devise or bequest. No person or corporation can inherit property or can take by devise or bequest except when authorized so to do by an Act of the Legis- lature. Such right may at any time, be abrogated prospectively, at the will of the Legislature; or, in the exercise of the same power in quahty though lesser in degree, the law-making department of the State may modify, regulate or impose conditions on the right to succeed by inheritance or devise to the property which was owned by a person who has died. Thus, the power of the Legislature to lay a tax on the right of any person or corpora- tion to take property by inheritance or by devise or bequest is found to be clear and undoubted. In laying such a tax the Legislature may consider the relation which the person or corporation given the right of succession sustains to the deceased, to the property or to the State, and may regulate the amount of the tax to be required in view of such relation, and in exercising this power may lay a tax on the right of one class of persons or corporations to take and may deem it wise to im- pose no tax upon the right of other classes of per- sons or corporations to take. A clear distinction exists between domestic cor- porations and corporations organized under the laws of other states. Such corporations fall nat- urally into their respective classes. Over the one — that which the State has created — the State has cer- tain powers of control, and the other is beyond its jurisdiction. Those of its own creation have been endowed with corporate powers for the purpose of subserving the interests of the State and its people; those which have been given life by the laws of a sister state have entirely different ends and objects to accomplish. The law-making power would find 282 many weighty considerations authorizing the classi- fication of foreign and domestic corporations into different classes, and justifying the creation of lia- bility on the part of foreign corporations to pay a tax on the right to take property by descent, devise, or bequest, under the laws of the Sate, and at the same time leaving the right of a domestic corpora- tion so to take, free of any exaction *\ Estate of Speed, 216 111. 23; aff'd 203 U. S. 553. 436. Charity— Definition. The Illinois Supreme Court has defined a charity in Crerar v. Williams, 145 111. 625, as follows : ^*A charity, in a legal sense, may be more fully defined as a gift, to be applied consistently with ex- isting laws, for the benefit of an indefinite number of persons, either by bringing their hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by as- sisting them to establish themselves for life, or by erecting or maintaining public buildings or works or otherwise lessening the burthens of government. It is immaterial whether the purpose is called charita- ble in the gift itself, if it is so described as to show that it is charitable in its nature''. 437. Public Charity— Statue of a Horse with Drinking Fountain. In re Estate of Graves, 242 111. 24, questions arose on the taxability of a bequest in the fourth clause of the will which reads as follows: **It is my will and I hereby direct my executors to obtain from the Board of South Park Commission- ers of the City of Chicago the privilege and right to erect on the north side of Fifty-fifth Street Boule- vard, at a point opposite the present driveway or trotting place for horses in said park, a drinking fountain or drinking basin for horses, and in con- nection with and in addition thereto a monument, which shall consist of a lifesize bronze statue of a 283 horse named ^Ike Cook' the first horse to trot in 2 : 30 over a mile track in the State of Illinois for a wager of $2,000, $1,000 a side, in the year 1856, over the Garden City race track, and to inscribe or carve on said monument and fountain, in a conspicuous place, my name as the person erecting said monument, the name of said horse and the time or record of speed of said horse made over said Garden City race track in 1856, as follows, viz: ^Donated and erected by Henry Graves ; Ike Cook trotted in 2 : 30 in 1856 over the Garden City race track, located about eighty rods from this spot in the direction in which he is looking' — said horse to be looking east when erected, in the direction of said race track. And my said ex- ecutors are hereby directed to expend for such last named monument and drinking fountain, out of my estate, the sum of Forty Thousand Dollars ($40,- 000.00). Said South Park Commissioners to main- tain and keep in good repair said monument and drinking fountain, free of expense to my estate. (Al- tered by codicil to not exceed $40,000.00, executors deciding to expend $30,000.00). Held, a charitable and benevolent bequest and is ex- empt under Section 2^, Law 1895. 438. Religious Corporation — Wlien Organized Under Laws of Foreign State. The Transfer Tax Law of New York, 1892, exempting religious corporations from tax cannot be extended to exempt a foreign religious corporation from taxation. **A statute of a State granting powers and privileges io corporations must, in the absence of plain indications io the contrary, be held to apply only to corporations cre- ated by the State and over which it has the power of Tisitation and control. The Legislature in such cases is dealing with its own creatures, whose rights and obli- gations it may limit, define and control. '' Matter of Balleis, 144 N. Y. 132. 284 439. Foreign Corporations— United States a For- eign Corporation— Is Taxable as a Benefi- ciary. The United States was the legatee of property under the will of a decedent who died January SQth, 1889. A tax was assessed in February, 1893, at which time, chap- ter 399, Laws 1892, was in force. The Court held, that the United States ^ ' is a government and body politic and corporate ordained and established by the American peo- ple acting through the sovereignty of all of the States*', and is a foreign corporation within the meaning of the Inheritance Tax Law in force at the time of decedent's death and taxable on the legacy. Matter of Merriam, 141 N. Y. 479; Matter of Cullom, 145 N. Y. 593. 440. Foreign Religious and Charitable Corpora- tions: Fact of Holding Property in Tax- ing State Immaterial. Testator died April 7th, 1891, a resident of the State of New York, and by his will bequeathed property to, among others, two foreign corporations, viz: Presbyte- rian Board of Eelief for Disabled Ministers, a Pennsyl- vania corporation, and The American Board of Commis- sioners for Foreign Missions, a Massachusetts corpora- tion. It was urged that the latter corporation, having the right to hold real and personal property in New York, relieved it from taxation. The Court held, that the foreign corporations were not within the exemptions referred to in the Inheritance Tax Law, and said: ^^Upon the view we have taken the act, chap. 376, of the Laws of 1877, conferring upon the defendant. The American Board of Commissioners for Foreign Missions, a limited privilege of taking and holding real and personal property in this State, does not relieve that corporation from a legacy duty. That was an enabling statute merely. The corporation 285 remained a foreign corporation as before, but pos- sessing in this State a privilege granted by that statute^'. Estate of Prime, 136 N. Y. 347; Roth- child's estate, 71 N. J. Eq. 210. 441. Exemptions— Foreign Charity -with Braneli in Taxing State. The Western Seaman's Friend Society, a corporation organized under the laws of the State of Ohio, established a' branch in Chicago; acquired property and erected buildings thereon in said city. It claimed exemption from taxation in Illinois on this property under the Illi- nois Revenue Act of 1872, which, among other things, provided that **all property of institutions of purely public charity, when actually and exclusively used for such charitable purposes, not leased or otherwise used with a view to profit'', should be exempt from taxation. The Court said: **But if a broader construction could be given to the statute, and it could be held to embrace all insti- tutions that dispense charity, whether public or pri- vate, and the property used exclusively for that pur- pose, there is still a valid reason why the property in this case is not exempt from its just proportion of taxation. The statute must, in any event, be under- stood to have exclusive reference to institutions or corporations created by the laws of this State, and not to foreign corporations that may choose to locate branches in this State. It is only by that comity that exists between states that foreign corporations are permitted to transact in this State, the business for which they were created. The General Assembly has manifested no intention to relieve the property situated in this State; belonging to such corpora- tions, no matter what their objects may be, whether charitable or otherwise, from the burdens of taxa- tion, even if it possesses the power under the con- stitution to do so. In any view that can be taken, the property as- 286 sessed is liable to taxation under the revenue laws of the State, and the judgment will be reversed and the cause remanded''. People v. Western Seaman's Friend Society, 87 HI. 246. 442. Charitable Bequests — When Bequest to Lo- cal Branch of a Foreign Corporation Is Ex- empt. A legacy of $2,000.00 was bequeathed to the Burlington Branch of the Salvation Army (meaning Burlington, Iowa). The Salvation Army is organized under the laws of the State of New York, but maintained a branch at Burlington, Iowa, which had no charter powers in the latter State. The Court held, the rule that the local statute covers only local domestic organizations is in- applicable where the bequest is made to a local branch to be used within the State of Iowa. Re Crawford's Es- tate, 126 N. W. (Iowa) 774. 443. Charitable Bequests — ^Law Construed to Fa- vor Exemption. Liberal construction should be given in favor of charit- able institutions taking under the tax law. Re Spangler's Estate, (Iowa) 127 N. W. 625. 444. Educational in Part — When One of the Fur-* poses of Corporation Is Educational. The Metropolitan Museum of Art was incorporated by a special act of the Legislature (Chap. 197, L. 1870) ^^for the purpose of establishing and maintaining in said city (New York), a museum and library of art, of encourag- ing and developing the study of the fine arts, and the ap- plication of arts to manufacture and practical life, of ad- vancing the general knowledge of kindred subjects, and to that end, of furnishing popular instruction and recrea- tion''. This corporation took a legacy of $1,000.00 by 287 the will of a decedent who died a resident of the State of New York. By an arrangement with the City of New York *^all professors and teachers of the public schools of that city, or other institutions of learning in said city, in which instruction is given free of charge shall be ad- mitted to all advantages afforded by the corporation''. Held, that the legacy was bequeathed for ** educational' ' purposes, and that said corporation is in part an educa- tional corporation. Matter of Mergentime, 129 App. Div. (N. Y.) 367, aff'd 195 N. Y. no opinion. 445. Exemption — Municipal Corporation Not Ex- empt. A bequest to the City of New York for the purpose of providing an ornamental fountain to be placed in one of the streets or public places in the city is taxable and is not exempt from taxation under the Collateral Inheritance Tax Law of 1887 on the ground that the city of New York is exempt by general law. Matter of Hamilton^ 148 N. Y. 310. 446. Bequest for Saying Mass Is a Charitable Be- quest and Exempt from Taxation. A transfer of property, real or personal, in trust to seU the same and expend the proceeds of said sale in saying masses for the repose of the soul and souls of a deceased wife, mother-in-law and brother-in-law of deceased, and for the deceased father, mother and sister of the de- ceased, held to be a charitable bequest under the laws of the State of Illinois. Hoeffer v. Clogan, 171 Bl. 462. The Court said on this subject: *^The doctrine of charitable uses has been repeat- edly held to be a part of the law of this State. The equitable jurisdiction over such trusts was not de- rived from the statute of charitable uses (43 Eliz. 288 Cliap. 4), but prior to and independently of that statute charities were sustained irrespective of in- definiteness of the beneficiaries or the lack of trus- tees or the fact that the trustees appointed were not competent to take. (Heuser v. Harris, 42 111. 425). The statute, however, became a part of the common law of this state. The statute of charitable uses of Elizabeth has, since its passage, been considered as showing the general spirit and intent of the term * charitable' and the objects which come within such general spirit and intendment are to be so regarded. The definition given by Mr. Justice Gray in the case of Jackson v. Phillips, 14 Allen 56, was adopted and approved by this Court in the case of Crerar v. Wil- liams, 145 111. 625 * * *. Any trust coming with- in this definition for the benefit of an indefinite class of persons sufiiciently designated to indicate the in- tention of the donor and constituting some portion or class of the public is a charitable trust. Among such objects are the support and propagation of religion and the maintenance of religious services, to pay the expense of preaching and salary of rec- tors or the preaching of an annual sermon in mem- ory of the testator. {Duror v. Motteux, 1 Ves. Sr. 320). The doctrine of superstitious uses arising from the statute 1 Edward VII, chap. 14, under which devises for procuring masses were held to be void, is of no force in this State, and has never ob- tained in the United States. In this country there is absolute religious equality and no discrimination in law is made between different religious creeds or forms of worship. The nature of the mass, like preaching, prayer, the communion and other forms of worship, is well understood. * * * It is a pub- lic and external form of worship, a ceremonial which constitutes a visible action. * * * A bequest for such special purpose merely adds a particular re- membrance to the mass, and does not, in our opinion, change the character of the religious service and render it a mere private benefit. An act of public worship would certainly not be deprived of that character because it was also a special memorial of 289 some person, or because special prayers should be included in the services for particular persons. Me- morial services are often held in churches, but they are not less public acts of worship because of their memorial character. The masses said in the Holy Family Church were public and the presumption would be that the public would be admitted, the same as at any other act of worship of any other christian sect. The bequest is not only for an act of religious worship, but it is an aid to the support of the clergy. Although the money paid is not regarded as a pur- chase of the mass, yet it is retained by the clergy, and, of course, aids in the maintenance of the priest- hood. We think the devise and legacy charitable and a rule applicable to trusts is that they will not be allowed to fail for want of a competent trustee. The court will appoint a trustee or trustees to take the gifts and apply them to the purposes of the trust''. 447. Foreign Corporation— Property Within the Taxing State. On the question whether personal property within the State of New York owned by a corporation organized without that State was taxable, the Court held: Citing Matter of Prime, 136 N. Y. 347, ** Bearing in mind the rule that the burden of proving exemption is upon the party asserting it, can it be said that it was the legisla- tive intent to exempt from taxation the personal property within this State of a non-resident or foreign educational corporation, as well as that of a domestic corporation? Strangely indeed we look in vain for an authoritative de- cision by the Courts of our State directly upon the ques- tion, unless it be in the Matter of Prime (supra) '\ in which it was held that a foreign corporation was taxable. ^* While in the case cited the bequest was to a Board of Foreign Missions, rather than to a corporation of an- other State and the decision related to the liability for 290 Inheritance tax rather than of a general tax, yet I cannot see why the reasoning of the decision is not at least equally applicable to the case at bar * * *. The Su- preme Court of Illinois in the case of People v. Seaman's Friend Society, 87 111. 246, held that a statute of that State exempting from taxation all property of institu- tions of public charity must be understood to have ex- clusive reference to institutions or corporations created by the laws of the State of Illinois and not to foreign corporations, and hence that a charitable institution of the State of Ohio, was not exempt from taxation for property situated within the State of Illinois." People V. Cameron, 124 N. Y. S. 949. 448. Young Men's Christian Association — ^When Exempt. A bequest to the Y. M. C. A. and a bequest to the Y. W. C. A. is exempt from taxation under the Transfer Tax Law of New York, as both institutions are broadly educational in their character. Re Moses, 123 N. Y. S^ 443. 291 CHAPTER XXVII. Certified Copy of Papees — Eepeax.. 449. Section Twenty-nine. 450. Section Thirty. 451. Section Thirty-one. 452. Amendatory Act Does Not Be- lieve Previously vested In- terests. 453. Statutes — "When Eevision Amounts to Continuation of the Act Superseded. 454. New Enactment Embodying the same Principle of Law Eepealed. 449. Section Twenty-nine. When property or any interest therein or income therefrom, shall pass to or for the use of any person, insti- tution or corporation by the death of an- other, by deed, instrument or memoranda, such passing shall be deemed a transfer -within the meaning of this act, and tax- able at the same rates, and be appraised in the same manner and subjected to the same duties and liabilities as any other form of transfer provided in this act. 450. Section Thirty. On the written request of the County Treasurer or county judge, in the county wherein an appraisement has been initiated, the clerk of the County Court and in counties having a Probate Court, the clerk of the Probate Court and the recorder of deeds shall furnish certi- fied copies of all papers w^ithin their care or custody, or records material in the par- ticular appraisement, and the said clerk and recorder shall receive the same fee or compensation for such certified copies as they ivould be entitled by law in other cases, "which shall be paid to them by the County Treasurer of the proper county, out of moneys in his hands on account of in- heritance tax collections, on the presenta- tion of itemized bills therefor, approved by the county judge of the proper county. 292 451. Section Thirty-one. Tliat ^'An Act to tax gifts, legacies, and inheritances in certain cases, and to provide for the collection of the same," approved June 15, 1895, in force July 1, 1895, as amended by act approved May 10, 1901, in force July 1, 1901, and all laws or parts of laivs inconsistent here- with be and the same are hereby repealed: Provided, hoivever, that such repeal shall in no wise affect any suit, prosecution or court proceeding pending at the time this act shall take effect, or any right ivhich the State of Illinois may have at the time of taking effect of this act, to claim a tax upon any property under the provisions of the act or acts hereby repealed, for xirhich no proceeding has been commenced: and all appeals and rights of appeal in all suits pending, or appeals from assessments of tax made by appraisers' reports, orders fix- ing tax or otherwise existing in this state at the time of the taking effect of this act. 452. Amendatory Act Does Not Relieve Previously Vested Interests. ^^The rule is considered settled in this State that neither original statutes nor amendments have any retroactive force unless in exceptional cas.es the Legislature so declares.** Matter of Miller, 110 N. Y. 216. 453. Statutes — When Revision Amounts to Con- tinuation of the Act Superseded. ^^In Hemvie v. N. Y. C. S H. R. R. R, Co. (154 N. Y. 281) it was held: The rule in the case of a revision of statutes is that where the law, as it pre- viously stood, was settled either by adjudication or by frequent application of the statute without ques- tion, a mere change in the phraseology is not to be construed as. a change in the law, unless the purpose of the Legislature to work a change is clear and ob- 293 vious. Therefore, because Section 242 prescribes that ^all property' shall be subject to the transfer tax and because of the revision of the statute should not be held to work a change in the settled law un- less the legislative intent to that effect is clearly manifest, we are of opinion that the seat held by the testator was subject to the tax imposed upon if Matter of Hellman, 174 N. Y. 254, reversing 77 App. Div. (N. Y.) 355. 454. New Enactment Embodying the Same FHn- ciple of Laiv Repealed. * * There are two questions in the case, one of which is common to all the appellants, and one which per- tains to the two corporations alone. The general question is presented by the claim on the part of the appellants, that the only statute in force at the time of the institution of proceedings for assessing the tax, in June, 1891, imposing a legacy tax, was the act chapter 215 of the Laws, of 1891, which amended the first section of the Act of 1885, as amended by the act of 1887, by declaring that said first section was amended *to read as follows', and then pro- ceeded to recite the first section as amended. The act of 1891 did not, in terms repeal the correspond- ing section in the former acts. The section, as amended, embodied the same principle in respect to the taxation of what, for brevity, may be called col- lateral inheritances, as. did the corresponding sec- .tion in the former acts, and made no change in the rate, but in prescribing the rule it does not follow the exact language of the prior acts. The claim, as we understand it, is that a statute which amends a prior statute in some particulars under the formula, *so as to read as follows', oper- ates as a repeal of the whole prior statute, unless, provisions intended to be retained are incorporated in the amended statute in the precise words of the former statute, without change of phraseology, and that it makes no difference although the same provi- sion in substance is contained in the amending, as in the original statute, nor although the transposition 294 and collocation of words, in the amending act was for the purpose of adjusting the new features brought in by the amendment so as to make the new and the old provisions harmonious in their relation and expression. Starting with this premise, it is then claimed that the first section of the act of 1887 having been repealed by implication, without saving to the State the right to proceed under the prior law to assess and collect the tax on estates, of decedents who died prior to the passage of the Act of 1891, there was no law when the assessment in this case was made authorizing such assessment. No assess- ment it is insisted could be made at that date under the Law of 1887, because the first section of that act (the one imposing a tax) had been repealed by the Act of 1891, before any fixed right of the State to assess and tax the estate in question had accrued, and no assessment could be made under the Act of 1891, because that Act was prospective and applies only to cases where death occurred subsequent to its passage. By this process of reasoning it is sought to estab- lish that the tax in this cas.e was unauthorized and although it is admitted that if the Act of 1887 had remained in force, or, if the decedent had died after the passage of the act of 1891, or, if the language of the first Section of the Act of 1887, as to the taxa- tion of Collateral Inheritances, had been incorpo- rated ipsissimis verbis in the Act of 1891, the inter- ests in question would have been taxable, yet it is insisted that the right to tax has been lost by the lack of verbal identity between the two sections. "We think the contention upon this point has no support in authority or reason.'' Estate of Prime, 136 N. Y. 347. 295 CHAPTER XXVin. Practice and Procedure. 455. The General Subject. 456. First Contact with the Law Usually Arises out of Sec- tion Nine. 457. Penalty for Non-compliance is Incurred when? 458. State has an Interest in every Estate. 459. First Question with Deposit- ary, Corporation, Association or Bailee is Liability. 460. Estimation of Tax and Eeten- tion to Cover. 461. Basis for Issuing Consent — ^in General. 463. Administration of Section Nine — Two Districts. 463. Springfield District — ^Business Transacted at Springfield, Illinois. 464. Book or Eecord Transfers. 465. Chicago District — Comprises Cook County. All Business Transacted by Inheritance Tax Attorney at Chicago. Tangible Property or Evi- dences thereof. 466. Book or Eecord Transfers. 467. Communication to Wrong Dis- trict. 468. Consent — only Lifts Liability for Inheritance Tax. 469. Notice. 470. Springfield District — ^How to Obtain Consent to Transfer — Deceased a resident or Non-resident of Illinois. 471. No Administration. 472. Deceased Eesident of Dlinois. Administration, Transfer of Shares of Stock and Bonds on the books of the Corpo- ration. 473. Decedent a Non-resident of Illinois — ^Book Transfer of Stock or Registered bonds. 474. Form Administration Affidavit required in Springfield Dis- trict. 475. No Administration Affidavit. Springfield District. 476. Form ''SS'^ Notice. 477. Chicago District— All Business Transacted with Joint Rep- resentative of Attorney Gen- eral and State Treasurer, at Chicago, Illinois. 478. Bank Deposits — Deceased a Eesident of Illinois — Admin- istration of Estate in Illi- nois. 479. Transfer— What Constitutes. 480. Administration Affidavit — Chi- cago District. 481. Bank Deposits — Deceased Ees- ident of Illinois — No Ad- ministration Pending. 482. No Administration Affidavit — Chicago District. 483. Bank Deposits — Deceased a Non-resident of Illinois — Administration or No Ad- ministration. 484. Securities, Deposits or other Assets (other than bank de- posits, but including collat- eral) under control or in Possession of a Bank, Trust Company, Corporation, Insti- tution or Person — Decedent a Eesident or Non-resident of Illinois — Administration or No Administration. 485. Eesidence in Dlinois — ^Admin- istration. 486. Eesidence in Illinois — ^No Ad- ministration. 487. Security. 488. Eeports of Examiners. 489. Non-residents — ^When Decedent is a Non-resident of Illinois and Eegardless of whether there is or is not Adminis- tration of the Estate. Action of the Tax Office on Eeceipt of Form ''SS'' Notice. 490. Deposit — When made Consent issues. 296 491. Deposit Eeturned if no Tax. 492. Delay in Issuing Consents. 493. Book Transfers of Stock and Eegistered Bonds — Decedent a Eesident or Non-resident — Administration and no ad- ministration. 494. Non-resident Estates — ^Affida- vit required. 495. Safe Deposit Company — Sto- rage Company — Decedent a Eesident or Non-resident of Illinois — Administration or No Administration. 496. When Consent Issues. 497. Emergency Examinations. 498. Deposit System. 499. Eecommendation to Non-resi- dents. 500. Affidavit Answering Non-resi- dent Questions. 601. Common Mistakes in Prepar- ing Affidavit. 502. Delay. 503. Section Eleven. In General Duty of Lawyer. Investiga- tion. Appraisement. Evi- dence. Special Guardian. Appraiser 'a Eeport. Order of Tax. Tax Eeceipt. Ap- peal to County Court. Ap- peal to Supreme Court. 504. Appraisement under Section Eleven. 605. Legal representative, Benefi- ciary and State '^Interested Parties. ' ' 506. Appraiser. 507. Hearing E o o m s — Appraise- ments had Therein. 508. Hearing before Appraiser — Non-resident cases. 509. Eesident cases. 510. Close corporation stock. 511. Eecord of Appraisement. 612. Objections to Appraiser's Ee- port cannot be Argued be- fore County Judge. 613. Inventories — Good Practice in Tax Matters. 514. Description of Property in In- ventories. 515. Stocks. 516. Bonds. 517. Insures Immediate Consent to Transfer. 518. Appraiser — Involuntary Ap- pointment — Investigation by Tax Office. 519. Life Estates and Eemainders — How Value Determined. 520. Value of an Annuity of One Dollar on a single life, Ac- cording to the Carlisle Table of Mortality. 521. How to Ascertain Present Value of Annuity or Estate for Life — and Eemainder. 522. Valuation of Annuity for a Fixed Period of Years. 523. Fixed Annuity Table. 524. Appeal to County Court. 525. Appraiser's Eeport Used as Evidence. 526. Appeals to Supreme Court. 527. Section Twenty-three. 528. Proceeding to Quiet Question of Taxability — in General. 529. The Other Section Providing Eemedy to Quiet Question of Taxability. 530. Procedure for Determining Taxability Under Section 11. 531. Property "In this State." 532. Transferred within the Mean- ing of this Act. 533. Interested Party. 534. Petition — Form — Allegations — Proof under Section 23. 535. Description of Property in Copy of Inventory made a Part of Petition. 536. Form Petition for no Tax. 537. Petition for No Tax — Non-res- ident Decedent. 538. Petition for No Tax— Eelation of Parent to Beneficiary. 539. Order of No Tax. 540. Entry of No Tax Order. 297 PEACTICE AND PROCEDURE. 455. The General Subject. Practice and procedure under the Inheritance Tax Law of Illinois is, in the main, a system of unwritten rules fashioned by the novelty of questions arising from the operation of a special law which has little statutory or traditional method of procedure. These rules have developed out of experience and ex- pediency in securing regularity for the institution and prosecution of appraisements, or suits to determine the taxability of property. There has also been gradually established by the dif- ferent state and county officers certain requirements or rules, for the orderly discharge of the duties charged to them, or the powers invested in them, by the tax law. Probably ninety per cent, of all transfers never reach appraisement, nor are they subjected to judicial proceed- ing to determine taxability; but these same transfers come within the scope of s.ome section of the law impos- ing a stricture or Hmitation on possession or title to property, which said state or county officers are legally empowered to relieve. All rules relating to practice or procedure, whether established by law, order of court or custom, or exacted by state or county officers, are intended to be covered under the head of ^* Practice and Procedure.'' 456. First Contact with the Law Usually Arises Out of Section Nine. The contact with the tax law usually begins with Sec- 298 tion 9 (L. 1909)* wMch prohibits corporations, banks, trust companies, deposit companies, institutions'' or persons, in possession or control of securities, deposits and assets belonging to or standing in the name of a de- cedent, resident or nonresident of the state, or belonging to or standing in the joint names of such a decedent and one or more pers^ons (and prohibits corporations, banks, associations, etc., from making book or record transfers of securities) from transferring or delivering the same to executors, administrators, survivors and other claim- ants without giving ten days ' notice to the Attorney Gen- eral and State Treasurer of the time and place of such intended transfer or delivery, and without retaining a sufficient amount of property to pay inheritance taxes and interest, unless the Attorney General and State Treasurer consent in writing to such transfer or deliv- ery. Power is given said state officers to make an examina- tion of the property at the time of the delivery or trans- fer. 457. Penalty for Noncompliance Is Incurred IVhen? A safe deposit company, trust company, bank, corpo- ration, institution or person is subject to a penalty of one thousand dollars, plus the inheritance taxes and in- terest : (a) For failure to serve on the Attorney General and State Treasurer notice of the time and place of the in- tended transfer or delivery of securities, deposits or other assets. ♦Analysis of law on pages 159 to 168. •1. Includes Building Loan Associations; Attorney General's opin- ion, 1910. 299 (b) For failure to allow said state officers, or their representatives to examine such securities, deposits or other assets, at the time of the transfer or delivery there- of. (c) For failure to retain (unless consent in writing for the transfer or delivery is given by the Attorney General and State Treasurer) a suffident portion or amount to pay the inheritance tax and interest which may thereafter be assessed. 458. State Has an Interest in Every Estate. In National Safe Deposit Company v. W, H. Stead, Attorney General et aL, 250 HI. 584, the court held: *^It is clear, therefore, that the State has an in- terest in every estate that is subject to the payment of an inheritance tax, and in all s.uch proceedings the Attorney General or some other designated officer is the representative of the State {People v. Sholem, 238 111. 203). We think, therefore, that the conclu- sion, from what has been said, logically and neces- sarily follows that where a lessee of the appellant (safe deposit company*) dies leaving property in one of the safety deposit boxes or safes of the appel- lant, the State, by its proper representative, has the right to be advised whether or not it shall ultimately be established that it has an interest in such prop- erty." 450. First Question -with Depositary, Corporation, Association or Bailee Is Liability. When an executor, administrator, survivor or other claimant makes demand of a corporation, bank, trust company, deposit company, institution or person who is in possession or control of property affected by said sec- tion, the question that first arises with the corporation, •Author's words. 300 bank or other institution, etc., is usually a practical one — ^how to transfer or deliver the property without sus- taining liability. Few depositaries or corporations have thus far as- sumed the risk of estimating the tax and interest, and withholding, after notice and examination, sufficient property to cover, as an error in the estimate would in- cur the penalty and liability. Therefore the safe deposit company, trust company, bank, corporation, institution or person, must primarily elect between two courses of procedure: 1st. The procedure according to the rules of the state officials in which is contemplated the release of the de- positary and corporation from penalty and liability by an official written consent to transfer or deliver. (The release of the property does not lift the lien on same for the tax as against legal representatives and beneficiar- ies.) 2nd. The procedure according to the particular pro- visions of the law by the s.ervice of notice, examination and retention of property to cover the tax and interest which is independent of the rales for granting consents. The procedure and form notices hereinafter outlined are designed to cover only cases where a consent to transfer or deliver is desired, and are not intended to lay down a practice or anticipate a legally sufficient notice where the corporation or depositary acts independently under the law. All forms hereinafter set forth, when properly used, are sufficient to state a case for the issu- ance of a *^ consent.'' 460. Estimation of Tax and Retention to Cover. Whether or not property is subject to an inheritance tax and interest, or if subject thereto, the question of 301 the amount thereof, are frequently questions of law, and sometimes difficult ones. The basis or accrual of an inheritance tax and the method of determining same, has practically nothing in common with the General Eevenue Law. The decisions in General Eevenue cases are only occasionally applica- ble in elucidating problems, in inheritance tax cases. It may be said that in a general sense the General Rev- enue Law (a tax on property) is a tax according to **facf ; and the inheritance tax (a tax on the right to receive property) is a tax according to ^4aw'^; although the amount of the tax in both systems is determined by the value of the property and fixed rates. But where a knowledge of a fixed rate would be sufficient to deter- mine a General Revenue tax, it might be only an inciden- tal element in determining the amount of an inheritance tax. 461. Basis for Issuing Consent — ^In General. The procedure for obtaining a consent to transfer secu- rities, deposits or other assets is. based on the residence of decedent at death ; whether there is administration of the estate; the situs of the property; the nature and character thereof, and security for the tax. The requirements of the state officials are intended to safeguard the interests of the State, and at the same time accomplish the quickest possible release of the prop- erty and disposition of the question of taxation. These requirements are invoked in all cases where the bank, trust company, safe deposit company, corporation, institution or person seeks a consent, rather than esti- mate and retain the tax and interest. 302 462. Administration of Section Nine— Two Dis- tricts. For the purpose of expediting business under, and in- suring the best enforcement of Section 9, the Attorney General and State Treasurer have divided the state into two districts — Cook County, known as the Chicago Dis- trict; and all other counties, known as the Springfield District, with jurisdiction as follows : 463. Springfield District — Business Transacted at Springfield, Illinois. All banks, trust companies, deposit companies., corpo- rations, institutions and persons located or having their principal office in Illinois, but outside of Cook County, and having in their possession or control securities, de- posits, or other ass.ets (of small or large value or amount) belonging to or standing in the name of a dece- dent who died a resident or nonresident of this state, or belonging to or standing in the joint names of such a de- cedent and one or more persons (including property held as collateral) should transact their business with the At- torney Greneral at Springfield. 464. Book or Record Transfers. All banks, deposit companies, trust companies and cor- porations covered by the Act located or having their principal place of business or transfer books in Illinois, but outside of Cook County desiring to transfer their stock or registered bonds on the books of the corporation or association when said stock or bonds (of small or large value and including collateral) belong to or stand in the name of a decedent who died a resident or non- resident of this state, or when said securities belong to or stand in the joint names of such a decedent and one 303 or more persons, should transact their business with the Attorney General, at Springfield, Illinois. 465. Chicago District — Comprises Cook County. All Business Transacted by Inheritance Tax Attorney at Chicago. Tangible Prop- erty or Evidences Thereof. All corporations, banks, trust companies, safe deposit companies, institutions and persons located, or having their principal office or principal place of business, in Cook County, and having in possession or control secu- rities, deposits or other assets (of small or large value) belonging to or standing in the name of a decedent who died a resident or nonresident of this state, or belon^ng to or standing in the joint names of such a decedent and one or more persons (including property held as collat- eral) should transact their business with the Inheritance Tax Attorney* at Chicago. 466. Book or Record Transfers. All corporations, banks, trust companies., deposit com- panies, associations, etc., comprehended by the law, hav- ing their principal office, principal place of business or transfer books outside the State of Illinois, or in Cook County desiring to transfer their stock or registered bonds on the books of the corporation, or association, when said stock or bonds (of small or large value, includ- ing collateral) belong to or stand in the name of a dece- dent who died a resident or nonresident of this state, or belong to or stand in the joint names of such a decedent ♦Inheritance Tax Attorney is, by appointment, joint representative of State Treasurer and Attorney General. The words "Tax Office" oc- curring hereinafter have the same significance as Inheritance Tax At- torney. 304 and one or more persons, should transact their business with the Inheritance Tax Attorney at Chicago. Railroads and other corporations doing an interstate business generally come within the Chicago District. 467. Communication to Wrong District. In case parties communicate with the wrong district, the matter is promptly referred to the proper district for disposition and no rights are los.t by such error. Notice — Statutory Time Waived. The statutory time prescribed for notice is usually waived when the corporation or depositary defer the transfer until the issuance of consent. 468. Consent— Only Lifts Liability for Inheri- tance Tax. The consent of the Attorney General and State Treas- urer does not relieve the corporation, bailee or depos- itary from liability under the general laws. It only clears and relieves liability for penalty under Section 9 in in- heritance tax cases. 469. Notice. Notice mus.t be given by the corporation, bank, trust company, deposit company, institution or person. There is no duty on the survivor, beneficiary, heir, administra- tor, executor or trustee or transferee to give the notice provided by Section 9. (See decision under analysis of Section 9, supra.) 305 470. Springfield District— How to Obtain Consent to Transfer. Deceased a Resident or Non- resident of Illinois."^ The Attorney General and State Treasurer will, when- ever possible, upon application of a safe deposit, banking or trust company, issue consents, in writing for the trans- fer or delivery of securities, deposits or other assets. In order that such consents may issue, the State Treasurer and Attorney General must have before them certain in- formation as to the estate of the decedent. To the end that consents, may be issued without undue delay and that the necessary information may be before them, the Attorney General and State Treasurer have prepared, and will furnish, forms of affidavits to be used in such cases. One form of affidavit is entitled **Administba- TioN," and the other **No Administration.'' When application is made to you for the delivery or transfer of securities, deposits or other assets, belonging to or standing in the name of a decedent or belonging to or standing in the joint names of a decedent and one or more persons, and an executor or administrator has been appointed in Illinois, and you have determined the proper person to whom to make the transfer or delivery, have the affidavit entitled ** Administration " executed by the executor, administrator, survivor or other person cognizant of the facts and mail such affidavit to the At- torney General, Springfield, Illinois. Upon receipt of same, joint consent will, except for the delivery of the contents of a safe deposit or other box or boxes, issue in the next mail. In case the affidavit discloses a safe deposit, or other box or boxes, in your possession or under your control, •Procedure as announced in circular pamphlet issued by Attorney General on December 1st, 1911. 306 belonging to or standing in the name of a decedent or belonging to or standing in the joint names of a decedent and one or more persons, arragements will be made for tbe immediate examination of the contents of the safe de- posit or other box or boxes and for the delivery and transfer of the contents thereof. Emergency cases are, when possible, relieved by telephone communication, the Attorney General arranging for a local representative to act. 471. No AdministratioxL. When no administration is pending you may have exe- cuted an affidavit entitled **No Administration." Mail such affidavit to the Attorney General, at Springfield, Illinois. Consents in such cases will issue with all dis- patch possible, which, in most cases, will be by next mail. 472. Deceased Resident of Illinois— Administra- tion — Transfer of Shares of Stock and Bonds on the Books of the Corporation. When you receive an application to transfer, on the books of your corporation, stock or registered bonds, either by the issuance of a new certificate or otherwise, use the affidavit *^Administkation,'' and particularly de- scribe the stock by its certificate numbers., and the bonds by serial or other identification numbers, and further particularly state the exact name or names the stock stands in, — for example: Certificate No. A. B. 6471 for 10 shares of the stock of First National Bank of London, Illinois, par value $100 each, standing in the name of John Z. Jones and G. Fred Smith. Certificate No. 42 for 2 shares of The Interna- tional Food Company, par value $25.00 each, stand- 307 ing in the name of Mary Y. Jones and Sylvester D. E. Ward. Six 2nd mortgage 4|% gold bonds of Chicago & Springfield R. E. Co., maturing July 1st, 1940, par value $1,000 each, standing in the name of The Robt. Gr. Brown Estate and B. Sam Green, deceased. Have said affidavit filled out and executed in your place of business and mail to the Attorney General at Spring- field, and consent to transfer will issue to the corpora- tion. 473. Decedent a Nonresident of Illinois — Book Transfer of Stock or Registered Bonds. "When application is made to any bank, safe deposit company, trust company, corporation or stock associa- tion for the transfer on the books of the company or association, of their shares of stock or registered bonds, when such securities, belong to or stand in the name of a decedent who died a nonresident of this state, or belong to or stand in the joint names of such a decedent and one or more persons, the draft notice hereinafter set forth and generally referred to as Form *^SS'^ should be served, by mail or messenger, upon the Attorney Gen- eral, at Springfield, Illinois. On receipt of this notice by the Attorney General, in- vestigation is promptly made to ascertain whether there is. a tax, and whenever necessary, a printed list of ques- tions is required to be answered, by the foreign executor, administrator or trustee, in affidavit form. These ques- tions are the same as required by the Chicago District. If said investigation discloses no tax, consent issues im- mediately. If a tax appears to be due the state, con- sents are issued on sufficient security given, or when the tax is paid in the appraisement proceeding immediately instituted under the law for its legal assessment. 308 474. Form Administration Affidavit Required in Springfield District. To the Attorney General and State Treasurer of the State of Illinois: In the Matter of the Estate of , deceased. State of Illinois, | f ss. County. ) of the of , , County of and State of Illinois, being duly sworn on oath deposes : 1st. That said decedent died on or about the. ........ day of. . . . . . . .u .A. D. , a resident of the County of and State of Illinois, leaving — (No or A) last will and testament. 2nd. That ,. of the city of County of and State aforesaid, is now acting as .1 ,. ... .^. (Administrator or Executor) by order of the. . ., Court of the County of 3rd. That the gross personal property owned by de- cedent at death, situate in this and in every other State and Country, had a gross value of not to exceed $..,..,... and consisted of . (Notes, Accounts, Stocks, Cash, etc.) And real estate and interests therein in the State of Illinois not to exceed in gross value $ ,. .>. . and gen- erally situate and consisting of as follows:. .. .> 4th. Further, this affiant declares he has a general knowledge of the financial and physical condition of de- 309 cedent for a number of years prior to his death, and thereupon answers the following questions: (a) Did decedent, during life and while sick or injured, make gifts or transfers of money or prop- erty (real or personal), or of any interests therein? Answer (Yes or No) (b) Did decedent, during life, transfer, assign, or part with money or property (real or personal), or any interest therein, reserving any part thereof or income therefrom until death? Answer (Yes or No) 5th. Affiant further says that (Safety Deposit Company has in its possession or under its control the or Institution) contents of a safety deposit or other box or boxes, be- longing to or standing in the name of said decedent, or in the joint names of said decedent and. 6th. That said decedent, at the time of decease, had on deposit in the of the City of . (Bank or Institution) , County of and State aforesaid $ . ., .,, which affiant requests shall be immediately transferred to .. 7th. If decedent owned shares of stock in Illinois corporations, name corporation, certificate numbers and shares evidenced thereby on the reverse side hereof. (Signature of Claimant) (Postofflce Address) Subscribed and sworn to before me this day of A. D. , Notary Public, 310 The foregoing affidavit is served as notice of the trans- fer of property described and claimed therein, at the undersigned's place of business in the City of County of and State aforesaid, on the day of A. D pursuant to the provisions of section 9 of an Act to tax gifts, legacies, inheritances, transfers, etc.. Laws of 1909. Dated this day of A. D (Signature of Bank, Corporation, Depositary, etc.) By (All real estate in Illinois and all personal property, including cash, wherever situate must be included.) 475. No Administration. To the Attorney General and State Treasurer of the State of Illinois, Springfield District, In the Matter of the Estate of deceased. State of Illinois, ) > ss. County ) of the of County of and State of Illinois, being sworn on oath deposes : 1st. That said decedent died on or about the day of A. D , a resident of the County of and State of Illinois, leaving last will and testament. (No or A) 2nd. That said deceased left h surviving and standing in the relation of as heirs h only heirs at law. 311 3rd. That the gross personal property owned by de- cedent at death, situate in this and in every other State and Country, had a gross value of not to exceed $ , and consisted of (Notes, Accounts, Stocks, Cash, etc.) And real estate and interests therein in the State of Illinois not to exceed in gross value $ and generally situate and consisting of as follows: 4th. Further, this affiant declares he has a general knowledge of the financial and physical condition of de- cedent for a number of years prior to his death, and thereupon answers the following questions: (a) Did decedent, during life and while sick or in- jured, make gifts or transfers of money or property (real or personal), or of any interests therein? Answee (Yes or No) (b) Did decedent, during life, transfer, assign or part with money or property (real or personal), or any interest therein, reserving any part thereof or income therefrom until death. Answer (Yes or No) 5th. Affiant futher says that (Safety Deposit Company or Institution.) has in its possession or under its control the contents of a safety deposit box or other box or boxes, belonging to or standing in the name of said decedent, or in the joint names of said decedent and. ,. 312 Gth. That said decedent, at the time of decease, had ' on deposit in the (Bank or Institution) of the City of County of 1. ., and State aforesaid $. which affiant requests shall be imme- > diately transferred to i , 7th. If decedent owned shares of stock in Illinois cor- porations, name corporation, certificate numbers and ; shares evidenced thereby on the reverse side hereof. (Signature of Claimant) ■ 1. .1 I (Postofflce Address) Subscribed and sworn to before me this day of A. D. Notary Public. The foregoing affidavit is served as notice of the transfer of property described and claimed therein, at the undersigned's place of business in the City of County of — and State aforesaid, on the day of .A. D , pursuant to the provisions of Section 9 of an Act to Tax Gifts, Legacies, Inheritances, Transfers, etc.. Laws of 1909. Dated this day of , A. D.. . (Signature of Bank, Corporation, Depositary, etc.) By 313 476. Form "SS" Notice. (Used in both Springfield and Chicago districts.) (Name of Corporation Giving Notice) NOTICE. To Hon — .,. . Attorney General. To Hon State Treasurer. (Springfield, Illinois, or Chicago, Illinois, as the case may be) Estate op Deceased, who died a resident of i (City, County and State) Administration Where (Yes or No) I .1. .1 (Name and Postofflce Address of Executor, Administrator, Trustee or Applicant for Transfer) Pursuant to the provisions of Section Nine of an Act to Tax Grifts, Legacies, Inheritances, Transfers, etc., Laws of Illinois, 1909 : You are hereby notified that demand has been made upon the undersigned for the transfer of , .< (Describe Shares of Stock by Certificate Numbers; Describe Bonds by Numbers and Series. If Held as Collateral. State Facts) To (Name and Address of Transferee) The property described herein is shown upon our books in the name of , , (If Above Named Decedent, or Otherwise, so State) The name and address of party desiring transfer is who claims as — .,. . (Executor, Administrator, Trustee, etc.) (Name of Corporation Giving Notice) By Dated: 314 CHICAGO DISTRICT. 477. Chicago District — All Business Transacted ixrith Joint Representative* of Attorney General and State Treasurer, at Chicago, Illinois. The Attorney General and State Treasurer have an anxiliary office at Chicago, which is in the charge of their joint representative duly accredited to conduct business under Section 9. A general classification of action in this district may be summarized as follows: 1. Bank deposits deceased resident of Illinois — ad- ministration of the estate in Illinois. 2. Bank deposits — deceased resident of Illinois — ^no administration pending. 3. Bank deposits — deceased a nonresident of lUinois — administration or no administration. 4. Money, securities, deposits and assets (other than bank deposits) including collateral, in control or possession of a bank, trust company, corporation, institution or person — decedent a resident or non- resident of Illinois — administration or no ad- ministration. 5. Book transfers of shares of stock and registered bonds — decedent a resident or . non-resident of Illinois, administration or no administration. 6. Safe deposit company — storage company, etc., — decedent a resident or non-resident of Illinois — administration or no administration. ♦Inheritance Tax Attorney, First National Bank Building, Chicago, lUinois. 315 478. Bank Deposits — Deceased a Resident of Illi- nois — ^Administration of Estate in Illinois. When application is made to a banking institution by an administrator or executor, for the transfer of a bank deposit of money (of large or small amount) in its possession or under its control and said money is owned by or stands in the name of a deceased resident of Illinois, or is owned by or stands in the joint names of such a decedent and one or more persons, said bank- ing institution may with safety, immediately, and with- out previous consent, transfer the entire deposit to said executor or administrator, if said banking institution complies with the following conditions: Fiest: Have said executor or administrator duly execute and acknowledge in your bank the '* Administra- tion" (Form A) affidavit used in the Chicago District and hereinafter set forth, with every question and point of information answered, and the names, address and dates clearly and unmistakably spelled and written. Second: Mail or deliver said affidavit the same day that the money is transferred, to the Inheritance Tax Attorney, at Chicago, Illinois. Consent is thereupon issued at once and mailed to said banking institution. 479. Transfer— What Constitutes. A transfer does not necessarily mean the delivery by the bank of the money itself to the executor or adminis- trator. A transfer may be accomplished by crediting said executor or administrator on the books of said bank with the money in question. 316 480. (Form A.) Administration Affidavit (Chi- cago District) . (Name of Bank) Administration. Estate of. ., . . . deceased. Transfer $ State of Ilolinois, ) County of Cook. ) of the City of Chicago (or if other city or town in Illinois, so state), County of Cook and State of Illinois, being duly sworn on oath deposes: That he is regularly acting as executor or adminis- trator of the above named estate by the authority of the Probate Court of Cook County (or if other county, so state), Illinois, evidenced by the official letters and orders thereof issued on the .day of... A. D.... That the above named decedent died testate or intes- tate on. ,. ... ., a resident of and domiciled in the State of Illinois. And it is alleged and affirmed by affiant that at the time of decedent's death the , . of Chicago had under (Name of Bank, Trust Company, etc.) its control, property belonging to said decedent, con- sisting of and standing in the name of 317 which property affiant hereby requests shall be imme- diately transferred to him. (Executor, Administrator or Trustee) Residing at .,. . (Business or Residence Telephone) Subscribed and sworn to before me this. ., , day of A. D i. . . Notary Public , The foregoing affidavit is served as notice of the transfer of property described and claimed therein, at the place of business of the undersigned in Chicago on the. . . ., day of A. D pursuant to the provisions of Section Nine of an Act to Tax Gifts, Legacies, Inheritances, Transfers, etc., Lawsi of 1909. (Name of Bank) By (Name of Officer and Title) 481. Bank Deposits — Deceased Resident of Illinois — No Administration Pending. When application is made to the bank by the rightful claimant for the transfer of a bank deposit when the money is owned by or stands in the name of a deceased resident of Illinois, or is owned by or stands in the joint names of such a decedent and one or more persons and said bank determines to make the transfer either before, or without administration, said bank may, with safety, before receiving ^' consent' \ transfer immediate- ly, any amount up to and including $475.00 of the de- 318 posit, if the rightful claimant executes, in the bank, the **No Administration'' affidavit, (Form N) hereinafter set forth, with every question and point of information answered, and said bank does thereupon, the same day the money is transferred, mail or deliver said affidavit to said Inheritance Tax Attorney. Consent is thereupon issued for the entire deposit, if No Tax. If taxable, no consent is issued on the balance of the deposit until the tax is paid or security therefor given. If the deposit is $475.00 or less, the consent having issued to the bank, the transaction is closed. The form of *^No Administration" now in use in the Chicago district is as follows: 482. (Form ''N.") No Administration Affidavit- Chicago District. (Name of Bank) Estate of {Deceased) Transfer $. State of Illinois, ) County of Cook, f ^®* of the City of Chicago, County of Cook and State of Illinois, being duly sworn, on oath deposes : 1. That the above named decedent died intestate on the day of A. D a resident of, and domiciled in the State of Illinois, and left surviving as decedent's only heirs at law and next of kin: Name Relationship to Decedent Address 319 2. That the gross personal property owned by the decedent at death, situated in this and every other state and country, had a gross value of $ , and consisted of (Notes, Cash, Securities. Chattels, etc.) And real estate in the State of Illinois not to exceed in gross value $ and situate as follows : (Name of Street and House Number. If Vacant, Number of Lots and General Location by Streets) 3. Affiant further states that the assets of said es- tate are chargeable with the following: Funeral expenses $ Indebtedness contracted by decedent and unpaid at the time of his death not less than * * * $. . . . . Total minimum indebtedness $ That the net value of decedent's property at the time of death (iid not exceed $. , 4. Further, this affiant positively declares he has a general knowledge of the financial and physical condi- tion of decedent for a number of years prior to h. ... death and thereupon answers the following questions: a. Did decedent during life and while sick or in- jured make gifts, or transfers, of money or prop- erty (real or personal) or of any interests there- in, exceeding in value $475.00? Answee (Yes or No. Give Particulars) 320 b. Did decedent during life transfer, assign or part with money or property (real or personal) or any interest therein, reserving any part thereof or income therefrom until death? Answer (Yes or No. Give Particulars) 5. Affiant claims that the (Name of Bank) has under its control property of the decedent which stands in the name of ... . ,. and consists of . . and which said affiant requests the immediate transfer thereof to (Legal Relation of Creditor of Decedent) 8. Affiant further states that he is the same person described as . , , in Clause One of this affidavit. Eesiding at ., . .,. . Business or residence telephone. Subscribed and sworn to before me this day of , A. D Notary Public, The foregoing affidavit is served as notice of the transfer of property described and claimed therein, at place of business of the undersigned, in. (City) on the day of. ....,.., pursuant to the provisions of Section Nine of an Act to Tax Gifts, Legacies, Inheritances, Transfers, etc.. Laws of 1909. (Name of Bank) By (Name of Officer and Title) 321 483, Bank Deposits — Deceased a Nonresident of Illinois — Administration or No Adminis- tration. When a banking institution has in its possession or under its control a money deposit or deposits owned by or standing in tlie name of a decedent who died a non-resident of this state, or owned by or standing in the joint names of such a decedent and one or more per- sons, no transfer can be made of said deposit or deposits or any part thereof (under the procedure of tax office) until consent issues. When application is made for the transfer of said deposit or any part thereof, a notice should be served upon said Inheritance Tax Attorney. Said notice is described as Form ^*SS'' hereinbefore set forth on page 313. On receipt of the notice, the Tax Office acts as is here- inafter set forth in case of non-residents. 484. 4tli. Money, Securities, Depositis or Other Assets (Other Than Bank Deposits, but Including Collateral) Under Control or in Possession of a Bank, Trust Company, Cor^- poration, Institution or Person — Decedent a Resident or Nonresident of Illinois-- Ad- ministraton or no Admnistration. When a bank, trust company, corporation (other than a safe deposit company) institution or person has un- der control or is in possession of securities, deposits (except bank deposits) or other assets of small or large amount, including collateral, owned by or standing in the name of a decedent, who was a resident or non-resident of Illinois at death, or owned by or standing in the joint names of such a decedent and one or more persons, de- fiires a consent to transfer or deliver the same, a form 322 ''SS'' notice should be served by mail or messenger, on said Tax Attorney, who thereupon acts as follows. 485. a. Residence in Illinois— Administration. If the notice discloses the residence of decedent to have been in Illinois at death and administration under security of a bond is pending in this state, the state is generally secure and the consent issues at once, regard- less of the amount of property. If the character or amount of property, or other cir- cumstance, seems to necessitate an examination of the same, an appointment is made with the depositary or bailee, and a representative of the state officers exam- ines the property and reports the character, amount and estimated value. In cases where it appears that the bond of the ex- ecutor or administrator is insufficient to warrant the is- suance of consent without securing the tax, arrange- ments are made for such security as a basis for releas- ing the property. 486. b. Residence in Illinois — ^No Administration. Where no administration is pending an examination is made of the property. If it appears from such that a tax is due, no consent to transfer is issued until security is provided for the tax. If no tax is disclosed consent issues at once. 487. Security. The security demanded as a basis for issuing consents is generally a deposit of money with a bank. 488. Reports of Examiners. Eeports of examiners are not disclosed to the public. 323 Property of a living person, com mi ngled with a de- cedent's, may be described on such report, and other information may be contained therein which should not and is in no case disclosed by the &tate officials. 489. Nonresidents-— When Decedent Is a Nonresi- dent of Illinois and Regardless of Whether There Is or Is Not Administration of the Estate. Action of the Tax Office on Receipt of Form "SS" Notice. Any safe deposit company, trust company, bank, cor- poration, institution or person in possession or control of securities, deposits or other assets (of small or large amount — including collateral) owned by or standing in the name of a decedent who died a non-resident of this state, or owned by or standing in the joint names of such a decedent and one or more persons, cannot transfer or deliver such property within the practice of the tax de- partment until a consent therefor is issued. When said safe deposit company, trust company, bank, corporation, institution or person is in possession or control of prop- erty so owned or held and an application is made by the administrator, executor or rightful claimant for the transfer or delivery thereof, said safe deposit company, etc., should serve upon the Tax Attorney Form **SS'' notice. On receipt of said notice a printed list of ques- tions, commonly called Non-Resident questions* is im- mediately mailed to the non-resident executor, adminis- trator, trustee, or applicant for transfer, which ques- tions must be answered in detail by affidavit. •Any person, corporation or institution interested in an actual case may obtain these printed questions in blocks of five to twenty-five free of charge, on written request to the Inheritance Tax Attorney. To include these questions in this book would inevitably lead to confu- sion. New questions and interpretations of the law will necessarily compel changes. 324 These questions are designed to fully cover all in- formation legitimately necessary to determine whether a tax has accrued to the State of Illinois by reason of the death of decedent by the ownership, actually or con- structively, of property ** within the state/' They are further designed to cover in one *' transac- tion'' the innumerable points, which, under a scheme or system of determining a tax on each item of stock or property as it arose for consideration, would require everlasting correspondence, delay and supplementary or additional proceedings. On receipt of the affidavit answering said questions, a written consent to transfer is sent to the corporation or depositary, releasing all securities, deposits or other assets, if no tax appears to be owing the state. If there is a tax, no consent is issued until the same is paid or a deposit of money made with a bank to se- cure the State Treasurer and Attorney General for as- suming the responsibility of releasing the property with- out payment of tax. In case a tax is shown by the affidavit the tax attorney secures the appointment of an appraiser, who sets the case forbearing at the appraisers' hearing room (located at the Inheritance Tax Office), and proceeds to dispose of the case. After the case is heard as provided by Sec- tion 11 (more particularly outlined hereinafter under **Sec. 11"), the executor, trustee, administrator, heirs, beneficiaries and their respective counsel, receive from the County Judge having jurisdiction of the case, a no- tice of the amount of tax. Consents are issued on pay- ment of said tax and interest. If a tax is paid within six months from the death of decedent, a discount of ^ve per cent, is allowed and no interest is charged. If the tax 325 is not paid within six months from the date of death, no discount is allowed and interest runs from the date of death until payment of tax. 490. Deposit — When Made Consent Issues. A deposit of money may be made with the depositary of the tax office (a national bank) either before or dur- ing the appraisement, and when made, consents are is- sued and mailed at once, before pa3mient of tax. 491. Deposit Returned if No Tax. A deposit is held until the tax is determined by the County Judge and at that time so much thereof as is necessary to pay the tax and interest is ordered paid to the County Treasurer and the balance, or all in case of No Tax, is immediately returned by the bank (deposi- tary) to the depositor. The deposit to secure the tax is in the nature of a written guaranty and provides that the money is payable only to the depositor or a county treasurer to liquidate tax. (See ** Deposit System" post,) 492. Delay in Issuing Consents. The delay in obtaining consents will most frequently occur by the failure of executors, administrators, trus- tees, heirs, etc., to act promptly in returning an affidavit, answering the non-resident questions. 493. 5. Book Transfers of Stock and Registered Bonds — Decedent a Resident or Nonresi- dent — Administration and No Administra- tion. When the corporation or stock association desires to secure a consent to transfer, on the books of the cor- 326 poration or association, its certificates or shares of stock and registered bonds, when the same are owned by or stand in the name of a deceased resident or non-resi- dent of this state, or owned by or stand in the joint names of such a decedent and one or more persons, the proper proceeding is to serve by mail or messenger, a Form '*SS'' notice (outlined in the foregoing pages) upon the Tax Attorney. a. If the decedent died a resident of Illinois and ad- ministration is pending the consents are issued at once, regardless of the amount or value of the securities. The exception to this action is infrequent and occurs when the bond of the legal representative appears insuffi- cient. h. If the decedent died a resident of Illinois and no administration is pending, no consent issues if there ap- pears to be a tax due, until the same is secured or paid, or subsequent administration justifies releasing the prop- erty. If there is no tax due consent issues immediately. c. If decedent died a non-resident of Illinois no con- sent issues until an affidavit is presented to the tax office answering under oath the non-resident questions, re- ferred to in Par. 489'. 494. Nonresident Estates — Affidavit Required. In all non-resident estates, regardless of the nature or character of the transfer, the requirements of the state officials, before passing on the question of tax and consent, is that the non-resident questions, mailed to every executor, administrator, trustee or other appli- cant for transfer, must be answered under oath by affi- davit. On receipt of the affidavit consent issues as here- inbefore stated. 327 495. Safe Deposit Company — Storage Company- Decedent a Resident or Nonresident of Illi- nois—Administration or No Administra- tion. When a safe deposit company, warehouse company or other depositary conducting a storage or safe deposit business, has in its possession or under its control se- curities, deposits (of any character) or other assets, be- longing to or standing in the name of a decedent who was a resident or non-resident of Illinois, or belonging to or standing in the joint names of such a decedent and one or more persons, and application is made for the transfer of such property, the practice is as follows: The depositary arranges, by telephone, messenger or letter, with the Inheritance Tax Office for the examina- tion of the box, safe, securities, deposits or other assets, at a ceri;ain hour of a ceri;ain day, which time is recorded on a calendar kept in the tax office. At the time ap- pointed, a representative properly accredited from said tax office, appears at the office of the depositary {not the office of the attorney or applicant for transfer) and if the claimant of the property is present and is granted access to the box, safe or property, the State's repre- sentative makes an examination of the securities, de- posits and assets affected by Section 9. Neither the ap- pearance or attendance of an examiner nor the exam- ination and release of the property relieves the depos- itary from the legal responsibility of determining who is entitled to the property or contents of the box, or the right of access thereto. 496. When Consent Issues. This examination is reduced to writing and reported 328 to tlie Inheritance Tax Office, upon which report it acts as follows: a. "When decedent died a resident of Illinois and Letters of Administration have been granted by some court of probate in the state, consent issues the same day the report of the examiner is received; unless the lack of a sufficient surety on the bond of the executor or administrator makes it necessary that security for the tax be first provided. Consent is promptly issued in all cases of No Tax. h. When decedent died a resident of Illinois and there is no administration pending. In this class of cases the examiner usually endeavors to secure an affidavit from the claimant of the property, which together with the examiner's report, generally supplies sufficient in- formation for action. Consent in this class of cases is- sues at once when there is no tax. If a tax is shown, consent issues on security given for the payment of the tax, or when the tax is paid in an appraisement pro- ceeding regularly conducted under Section 11. c. When decedent dies a non-resident of Illinois, consents are issued as in other cases of transfers of non-residents' property. The fact of administration is immaterial in cases of non-residents. Ancillary admin- istration does not justify the release of the property. An affidavit giving the information specified in the non- resident questions hereinbefore explained is required. 497. Emergency Examinations. A communication with the tax office two days in ad- vance of the time of examination is usually sufficient to secure an examiner. However, the tax office acts on notice of one day, or even less, when possible, regardless 329 of its right to ten days' notice. The safe course is to arrange for examination in advance. In cases where the claimant of the property is a per- son ** employed '^ in an occupation preventing his or her appearance at the examination without pecuniary loss or jeopardy of employment, the time of examination will be fixed at an hour which will, so far as possible, pre- vent such loss or jeopardy. 498. Deposit System. The deposit system was devised to assist residents and non-residents in securing consents on taxable property before appraisement. When any person or corporation desires the immediate transfer of property which is ap- parently subject to a tax and it is unsafe for the State officials to issue the consent without security, the Tax Office will estimate the amount of tax, and issue a con- sent to transfer on the deposit by the executor, trustee, administrator, person or corporation, of a sum of money sufficient to cover the tax and interest. The amount of the deposit is fixed by the Tax Office, and is intended to be slightly in excess of the actual tax and interest. Both residents and non-residents may use this method of securing immediate consents. When the tax and interest is determined according to law, the amount thereof is paid out of the deposit to the County Treasurer of the county wherein the appraise- ment was had. All moneys in excess of tax and interest is returned at once to the depositor, not to the agent or attorney for the depositor. In case the depositor or legal representative antici- pates a disagreement in the result of the appraisement and intends to prosecute an appeal to review the assess- ment, the tax office will on written request before the 330 close of the appraisement, refrain from ordering the as- sessment paid, and will allow the deposit to stand until the appeal is disposed of. No bond, other than for costs, is required in deposit cases, where an appeal is taken. 499. Recomiuendatian to Nonresidents. One method of getting quick results when the decedent was a non-resident is for non-resident banks, trust com- panies, brokerage houses and corporations to secure from the tax office a supply of * * Non-Eesident Questions'* which point out the requirements of the State officials, and when a client or patron (executor, trustee, admin- istrator, heir, etc.) desires to secure consent to transfer stock or registered bonds of corporations, securities, de- posits or other assets affected by the Illinois Tax Law, have said client or patron answer the questions by affi- davit in the place of business of such bank, corporation, etc., and mail the same to said Tax Attorney, at Chicago. Consents will issue by next mail, if no tax, and if a tax, security may be arranged by letter, wire or telephone. This method saves the time of first writing to Chicago or Springfield for the requirements of state officials, and also the time of transmitting the printed requirements or questions to the non-resident corporation, bank, exec- utor, administrator, etc., by mail. Many foreign brokerage houses and banks have adopt- ed this practice. The tax office will always telegraph (collect) estimate of tax shown by affidavit, so deposit to cover same may be made with as little delay as possible. Deposit may be made by telegraph when depositor con- forms to the terms of deposit contract.* ♦Deposit blanks are furnished free on application. 331 500. A£ELdavit Answering Nonresident Qnestions. The affidavit whicli must be presented to the Tax Of- fice should be carefully prepared and contain the par- ticular information asked for, and be accompanied with the papers required in said questions. 501. Common Mistakes in Preparing Affidavit. The most frequent omission from the affidavit is the certificate numbers evidencing shares of stock and regis- try numbers of bonds, and the failure to state the class of stock, viz., whether preferred, common, first preferred, second preferred or whatever class of stock is intended for transfer. Another frequent omission from the affidavit is the ages, as of the death of decedent, of all annuitants and tenants for years or life. As well as failure to attach copy of will or table of heirship. 502. Belay. The failure to prepare affidavit promptly, or omission to furnish the particular information and papers required will inevitably cause delay in obtaining consents. Affidavits are examined by the Tax Department the same day they are received and where no tax appears to be due, consents are issued immediately. 332 503. Section 11. In General. Duty of Lawyer. Investigation. Appraisement. Evidence. Special Guardian. Appraiser's Report. Order of Tax. Tax Receipt. Appeal to County Court. Appeal to Supreme Court. When an attorney has engaged his services to an ex- ecutor, administrator, trustee, heir, beneficiary or trans- feree, it is as much his duty to properly advise the client of the liabilities and requirements of the tax law, as the administration law and other laws affecting the client. Therefore when property is transferred by death, whether by will or intestate laws ; or by deed or gift made prior to death within Section 1, an important question to be determined by said attorney is the liability and requirements under the inheritance tax law. As stated in the preceding outline, the first contact with the tax law usually occurs by reason of Section 9, when a decedent had property or some interest therein, in the possession or under the control of a safe deposit company, trust company, bank, corporation, institution or person, or when a decedent owned shares of stock or registered bonds, and it is desired by the legal repre- sentative, or survivor or other claimant to have the same transferred on the books of the company. After possession of such property has been secured, or sometimes during its retention by the depositary pending the issuance of consents for its transfer by the state officials, the matter of procedure for determination and payment of tax, or the process of clearing possible inheritance tax liens, arises. It is to be noted that the County Judge, and not the County Court, is given the power by Section 11 to ap- point an appraiser, and ^x the tax. This section has always been considered as providing 333 the method for determining the tax by investing original jurisdiction in the County Judge for that purpose. How- ever, this view is not unanimous. It has been argued that a tax can be determined in an original proceeding before the court under Section 15, Law of 1909, and also by an original proceeding under Section 23, L. 1909. Also that postponed taxes may be assessed by a proceeding under Section 15. The latter question has been raised by a recent suit* in the County Court, wherein the trus- tees of a fund on which the tax was postponed prior to July 1st, 1909, subsequently petitioned the court to as- sess a tax on property vesting at the death of a life ten- ant, on the values fixed in the original appraisement and as of the original testator's death. But beginning with and including the first tax case un- der the law of 1895, and continuing to the present day, taxes have been assessed by the County Judge under Section 11 of the L. of 1895, and Section 11 of the L. of 1909, through the method therein provided, and not by the County Court. {People v. MUls, 247 lU. 147.) (See cases under ** County Judge.'') Section 15 has been heldf to cover only delinquents after assessment under Section 11. 504. Appraisement Under Section 11. Section Eleven provides : In order to fix the value of property of persons whose estates shall be subject to the tax, the County Judge, on application of any interested party, or upon his own motion, shall appoint an ap- praiser, who shall notify by mail all interested parties of the time and place he will appraise the property. At •Estate of William D. Ewart, deceased, County Court No. 28733, ap- pealed to Supreme Court. fOpinion of Attorney General 369. 334 such time the appraiser shall determine the fair market value of the property appraisable. He may, with leave of the County Judge, subpoena witnesses and take evi- dence under oath. All of his proceedings must be re- ported in writing to the County Judge, who shall forth- with assess and fix the then cash value of all estates, etc., and the tax to which same are liable and shall im- mediately give notice by mail to all parties known to be interested therein. 605. Legal Representative, Beneficiary and State "Interested Parties." The safe course for all parties liable to pay the tax either as executor, administrator or beneficiary, is to take action immediately after the death, in order to insure a completion of the appraisement before six months from the death, so that payment may be made within that period, and thereby secure a discount of five per cent, and avoid the payment of interest. (Sec. 3, L. 1909.) As stated in the law, any interested party may peti- tion the County Judge for an appraiser. The inheri- tance tax attorney or Attorney General should be served with notice of this action. The Inheritance Tax Attorney, whenever he is ad- vised a tax is due the State, moves for an Appraiser. Primarily any attorney may present to him an actual case and demand his attitude. If this is desired, it is neces- sary to present the following papers : True copy of ap- plication for letters, copy of will, table of heirship, in- ventory, or complete statement of property, real or per- sonal ; debts due at death, including mortgages. If a tax is shown, the Inheritance Tax Ofiice moves for an ap- praisement. 335 506. Appraiser. The Appraiser is selected and appointed by the County Judge, without recommendation or suggestion. He may appoint on his own motion or on petition. His appoint- ment is made by the entry of a written order, which, to- gether with the oath of the Appraiser, is filed with the Clerk of the County Court. Upon the appointment of the Appraiser, or before, the tax attorney mails to the attorney for estate, a letter requesting those papers which the County Judge requires to be contained in the Appraiser's report. These papers are generally the will, table of heirship, inventory, bill of appraisement and application for let- ters. There is no provision in the law requiring attor- neys, executors or administrators or other persons to furnish them. A fairly well established practice to fur- nish these papers has proved helpful to both the State and estate. Said Appraiser, as soon after appointment as practi- cable, serves notice, by mail, upon all interested parties, which notice declares that a hearing will be held at a cer- tain hour, day and place, for the purpose of valuing all property appraisable by reason of the death of dece- dent. 507. Hearing Rooms — Appraisements Had There- in. In Cook County all hearings are held at the Apprais- er's hearing room in the Inheritance Tax Office at Chi- cago. All cases are set and heard in their turn upon a trial calendar. 336 508. Hearing: Before Appraiser — Nonresident Cases. If tlie decedent died a non-resident of the State the only evidence necessary is the affidavit filed with the tax office in response to and containing the information and papers required in the printed non-resident questions, heretofore explained under Section 9. However, the ex- ecutor or others conversant with the facts, may appear personally and testify. 509. Resident Cases. The Appraiser presides at the hearing and the rules of procedure are similar to those before a master in chancery, except that the appraisement is in the nature of a common law proceeding. The executor or admin- istrator must be present at the first hearing, and when necessary, at adjourned hearings. The presence of heirs or beneficiaries is required in many cases. The State usually proceeds with the examination of the executor, administrator or other person and seeks to develop all material facts which are necessary or sub- ject of inquiry under the law. The rules of evidence are the same as in a common law proceeding. It has been held by the County Court of Cook County that an Ap- praiser may make valuations without evidence and on his own inspection. This latter power is seldom resorted to. Both the State and estate may produce witnesses at the hearing to establish any material fact or facts. Nearly every case presents a different situation. Dif- ferent appraisements develop various conditions and questions. Therefore it is only practicable to state the facts which are uniformly necessary for the record in every estate. They are: 337 1st. Date of death of decedent and age at death. 2nd. Eesidence. 3rd. Testacy or intestacy. 4th. Introduction of a true copy of will and codi- cils, or table of heirship, if no will. 5th. Did decedent leave a husband or wife surviv- ing? Age. 6th. Has surviving husband or widow accepted pro- visions of will? 7th. Is there an ante-nuptial or post-nuptial con- tract or contracts? They must be produced. 8th. Relationship of each and all beneficiaries to decedent, tracing such relationship; and State of incorporation and charter powers of educational, religious and charitable corporations. 9th. Ages, as of death of decedent of all annuitants and tenants for life or years. 10th. Identification of the total real estate in Illi- nois and the total personal or mixed property wheresoever situate. 11th. Determination by witnesses or otherwise of the market value of all property appraisable and of what is appraisable. 12th. No steps are taken as to value, amount or de- scription of property until an inventory is filed in a court of probate. The Si:ate can force exec- utor or administrator to file inventory. 238 111. 203. 13. Gifts and transfers under Section 1. 14th. Legal deductions, which include debts owing by decedent at death, secured by mortgage or otherwise; funeral expense; court costs; attor- ney's fees in administration; estimated executors' or administrators' commission. Deductions must be itemized, and each item must show the consid- eration for the debt and the name of the creditor. The fact that a claim has been allowed by a court of probate is not in itself ground for its allowance in an inheritance appraisement. The principal basis for allowance is that the deduction claimed constituted in law a clear liability of decedent at death. 338 510. Close Corporation Stock. If there are no reliable sales on which the Appraiser may base a value of close corporation or unlisted stock, a statement of assets and liabilities is required, which should show the condition of company at decedent's death, and also the earnings of the company over a pe- riod of years prior to said death. These statements are generally withdrawn from the record on motion. As an appraisement proceeds, many points of law arise. These should not be discussed during the trial, but the evidence necessary to develop the facts on which to base the legal contentions of the respective parties should alone proceed. After the evidence is closed, it is the practice in Cook County to argue all questions of law and value before the appraiser. Whether the ap- praiser, under the Illinois law, can determine questions, other than those of value, is not the subject of judicial determination in this state. 511. Record of Appraisement. The evidence at the hearings of the appraiser is taken by a court reporter furnished by the Inheritance Tax Office. The evidence, when transcribed, together with all exhibits, is delivered to the appraiser at the close of the hearings. A report and draft order of tax is thereupon prepared (see forms) and left with the tax office, for the inspection of attorneys for the different parties. Notice is given to attorneys by mail of the time the report and order is ready for inspection. After the expiration of the time appointed for inspec- tion of the report, the same is presented to the County Judge, who approves same ^'forthwith'' by the entry of an order of tax, and at the same time said County Judge, 339 pursuant to Section 11, mails his notice of tax to all in- terested parties. The form of notice of tax used in Cook County, which is mailed by the County Judge when he determines the tax, shows the date the order of tax was entered, the cash value of the beneficiaries' estate, and the tax assessed thereon. The notice further states that the tax draws interest until paid. This provision cov- ering interest has no effect on taxes paid within six months from the death of decedent. Cash value. The ^'cash value'' of beneficiaries' estate has always been considered as meaning the value of the succession less the statutory exemption. Whether this is a correct interpretation of the meaning of said words, no view is expressed herein. 512. Objections to Appraiser's Report Cannot Be Argrued Before County Judge. If there are objections to any phase, part or finding of the report or order of tax, it is the holding of the County Judge of Cook County that said objections cannot be argued prior to entering the order of tax. (See cases under ** County Judge.") The remedy is by appeal to the County Court, from the County Judge's Order of Tax. (See ** Appeal.") 513. Inventories — Good Practice in Tax Matters. The rules governing the filing of inventories in the Court of Probate and description of property therein is governed by the administration law and rules of said court. The recommendations herein to executors and admin- istrators and their counsel is by way of suggestion to avoid delays and insure prompt action in inheritance tax matters only. 340 614. Description of Property in Inventories. It is suggested to executors and administrators that their inventories provide descriptions of property, in ad- dition to that description required by the administration act, and the rules of the Court of Probate (when not in contravention of said rules), as follows: In describing real estate, give frontage and depth; if improved, state character and stories high ; rental value ; street number, and between what streets. If vacant, frontage and depth; on what street; between what streets. If acres, the number of and whether subdivided ; how many lots. If property customarily measured by the square foot, give number of square feet. 515. Stocks. Certificate number and number of shares of stock rep- resented thereby; the correct corporate name of the cor- poration without abbreviation; par value of shares and class of stock (preferred, first or second preferred, or common, etc.). 516. Bonds. Correct name of corporation; serial number of each bond; class or kind of bond; par value; maturity, date of payment and rate of interest. The foregoing information will, many times, save de- lay in determining the facts and values. 517. Insures Immediate Consent to Transfer. The description of stocks and bonds as above in an inventory on which a tax has been paid, or on which a No Tax Order has been entered will insure an immediate issuance under Section 9 of the consent of the Attorney 341 General and State Treasurer to transfer the same. K the shares of stock and bonds have been described in the inventory without numbers, no consents can issue until an aflfidavit is filed with the tax office identifying the property by certificate or serial numbers, as the same on which the tax has been paid or declared free from lien. 518. Appraiser — Involuntary Appointment — In- vestigation by Tax Office. If no action is taken by the legal representatives or beneficiary of property, either by referring the matter to the Inheritance Tax Attorney or by petitioning the County Judge, the estate or property is investigated by the tax office through its investigation department. The records of the Probate Court, recorder's office and the files in the office of the joint representative of the Attorney General and State Treasurer are examined, as well as other investigations made, and the value of prop- erty discovered is tentatively determined, and if a tax is disclosed the case is referred to the County Judge for disposition. Few investigations are completed within the discount period. Voluntary appraisement and deposit cases are heard first on the appraisers' trial calendar. Involun- tary cases are placed at the foot of the calendar. 519. Life Estates and Remainders— How Value Determined. The Appraiser, after determining, as by law directed, the value of the property, by practice, passes upon, by way of recommendation the deductions presented, the de- volution or distribution of the net property for taxation, the exemptions and rates of tax ; and where life estates.. 342 terms of years, remainders and annuities are created, the Appraiser determines the value as of the death of tes- tator. The value of an estate or annuity for life or years is determined on mortality tables. The Carlisle Table of Mortality, which follows, being the one used, according to practice. (Marshall v. Marshall, 252 111. 568.) 520. Value of an Annuity of One Dollar on a Sln« gle Life According to the Carlisle Table of Mortality. AGE. bfo AGE. 5% AGE. 5%, 1 . . . . 13.995 31 .... . 14.617 61 8.712 2 14.983 32 .... 14.506 62 8.487 3 15.824 33 ... . 14.387 63 8.258 4 16.271 34. . . .14.260 64 8.016 5 . . . . 16.590 35 14.127 65 7.765 6. . . . 16.735 36 13.987 66 7.503 7 . . . . 16.790 37 ... . 13.843 67 .... . 7.227 8 . . . . 16.786 38 .... 13.695 68 6.941 9. . . .16.742 39. . . ,13.542 69 6.643 10 16.669 40. . . .13.390 70 6.336 11 ... . 16.581 41 ... . 13.245 71 6.015 12 16.494 42 ... . 13.101 72 5.711 13 ... . 16.406 43 ... . 12.957 73 5.435 14 ... . 16.316 44 12.806 74 5.190 15. . . .16.227 45. . . .12.648 75 4.989 16 ... . 16.144 46 ... . 12.480 76 4.792 17 ... . 16.066 47 ... . 12.301 77 4.609 18 15.987 48 ... . 12.107 78 4.422 19 ... . 15.904 49 ... . 11.892 79 4.210 20 ... . 15.817 50 ... . 11.661 80 4.015 21 ... . 15.726 51 ... . 11.410 81 3.799 22. . . .15.628 52 11.154 82 3.606 23 .... 15.525 53 10.892 83 3.406 24 15.417 54. . . .10.624 84. . . . .3.211 25 ... . 15.303 55 .... 10.347 85 3.009 26 15.187 56 ... . 10.063 86 2.830 27.... 15.065 57.... 9.771 87 2.685 28.... 14.942 58.... 9.478 88 2.597 29 14.827 59.... 9.199 89 2.495 30. . . .14.723 60. . . . 8.940 90 2.339 343 AGB. 5% 91.... 2.321 92. . . . 2.412 93. . . . 2.518 94.... 2.569 95. . . . 2.596 96. . . . 2.555 97. . . . 2.428 98. . . . 2.278 99.... 100. . . . , 1.624 521. Hoxir to Ascertain Present Value of Annuity or Estate for Life — And Remainder. If A, age fifty years, i& given a life estate in property of the value of $10,000.00, remainder to B, the method of valuation of the life estate and remainder is as follows : First is determined the income for one year at five per cent, which equals $500.00. By reference to the mortal- ity table, it is seen that the present value of One Dollar for the entire expectancy of life of a person fifty years of age (A*s age) is $11.66. It follows that if the present value of $1.00 for A's expectancy is $11.66, the present value of $500.00 per year for A's expectancy is. 5iOOX $11.66, or $5,830.00. $5,830.00 is therefore the present taxable value of A's life estate in property of the value of $10,000.00. The present value of B 's remainder as of the death of testator is the difference between A's life estate and the value of the trust fund ($10,000— $5,830=44,170.00). $4,170.00 is the taxable value of B's remainder. (See People V. Nelms, 241 HI. 571.) The rate of five per cent, is provided by Sec. 2, L. 1909, as the percentage basis for determining the value of ex- pectancies or annuities. . 344 522. Valuation of Annuity for a Fixed Period of Years. When an annuity is created for a fixed period of years, for instance — annuity of $500 to for ten years, the mor- tality tables are of no assistance and cannot be used. The Appraiser mnst then use a fixed annuity table. To determine the value of a fixed annuity for a period of years stated, it is necessary only to find the present value of money for a certain period without regard to mortality. The fixed annuity will not cease with C's death, but the life es.tate would. The fixed annuity table used in determining an annuity as last described is as follows : IiiLusTEATioN : Annuity of $500.00 to C for ten years. Present value of $1.00 per year for ten years is found by referring to the following table to be $7.7217. Multiply the total annuity ($500.00) by the present value of $1.00 (7.7217) and the result is the present value of $500.00 for ten years, viz : 5O0x$7.7217=$3,608.5O. 523. Fixed Annuity Table. Yrs. 5 per cent. Yrs. 5 per cent. 1 .9524 16 10.8378 2 1.8594 17 11.2741 3 2.7232 18 11.6896 4 3.5460 19 12.0853 5 4.3295 20 12.4622 6 5.0757 21 12.8212 7 5.7864 22 13.1630 8 6.4632 23 13.4886 9 7.1078 24 13.7986 10 7.7217 25 14.0939 11 8.3064 26 14.3752 12 8i.8633 27 14.6430 13 9.3936 28 14.8981 14 9.8986 29 15.1411 15 10.3797 30 15.3725 345 Yrs. 5 per cent. Yrs. 5 per cent. 31 15.5928 56 18.6985 32 15.8027 57 18.7605 33 16.0025 58 18.8195 34 16.1929 59 18.8758 35 16.3742 60 18.9293 36 16.5469 61 18.9803 37 16.7113 62 19.0288 38 16.8679 63 19.0751 39 17.0170 64 19.1191 40 17.1591 65 19.1611 41 17.2944 66 19.2010 42 17.4232 07 19.2391 43 17.5459 68 19.2753 44 17.6628 69 19.3098 45 17.7741 70 19.3427 46 17.8801 71 19.3740 47 17.9810 72 19.4038 48 18.0772 73 19.4322 49 18.1687 74 19.4592 50 18.2559 75 19.4850 51 18.3390 76 19.5095 52 18.4181 77 19.5329 53 18.4934 78 19.5551 54 18.5651 79 19.5763 55 18.6335 80 19.5965 524. Appeal to County Court. ''Any person or persons dissatisfied \;rith the appraisement or assessment may appeal there- from to the County Court of the proper county Tirithin sixty days after the making and filing of such appraisement or assessment on paying or giving security satisfactory to the County Judge to pay all costs, together with whatever taxes shall be fixed by said Court." **The making of such assessment*' is accomplished by the entry of the County Judge's order of tax approv- ing the Appraiser's report and fixing the tax. The prac- tice is for the party appealing to present a petition (see 346 forms) to the County Judge, setting up the objections to the appraisement and County Judge's order, upon which petition the court allows the appeal if pertinent objections are alleged. At the same time a bond (see forms) in twice the sum of the tax is presented for approval, unless the tax has been paid to the County Treasurer, in which case the bond is usually in the sum of $250.00 to cover costs. Sureties should be brought into court for examination at the time of presenting bond. The County Court of Cook County has held that the date of entry of the County Judge's order of tax is the time the sixty day limitation for appeal begins and also that the bond must be approved within this period. An appeal case in the County Court is a common law action. Exceptions must be preserved and the proced- ure is the same as law actions. The trial ia de novo {People V. Mills, 24:1 111. 620). 525. Appraisers' Report Used as Evidence. In the average appeal, the Appraiser's report sets forth all the material facts, and the same, or a certified copy, is offered as the only evidence. A copy of the report should be used whenever the case goes to the Supreme Court. The original report is not recorded and should be kept in the clerk's office, as it may contain information for a future appraisement of property passing by a power or otherwise, which might be indispensable to the State. Although the law allows withdrawing the Supreme Court record contain- ing this report, it is better available in the office of the Clerk of the County Court. Either side may produce witnesses to prove material facts not contained in the Appraiser's report, or, if a 347 question of value is in dispute, the report may be offered and the objectionable parts either excluded or received subject to objection. Where the report can be used as covering all the for- mal proof, it is a great saving of time to the Court to receive same or a copy thereof and mark the objection- able or disputed parts as received under objection. Where the report is to be used as evidence, appellant in opening the appeal case, begins his record by offering the report, or so much as is necessary, with leave to withdraw on substitution of an authenticated, examined or certified copy. If the regularity of Appraiser's, ap- pointment is questioned the order of appointment and oath of Appraiser may be material. The order of tax appealed from is a matter of record. Opinions differ on the necessity of offering the same as evidence. The bet- ter opinion seems to be that it is primarily a part of the record. The trial proceeds as in other suits at law. 526. Appeals to Supreme Court. An appeal from the judgment of the County Court in an Inheritance Tax case goes direct to the Supreme Court. (Re Sholem, 238 111. 203.) The rules and pro- cedure governing such appeals, are the same as in suits at law. 348 527. When any person interested in any property in this state, ivhich shall have been trans- ferred within the meaning of this act shall deem the same not subject to any tax under this act, he may file his petition in the County Court of the proper county to de- termine whether said property is subject to the tax herein provided, in which peti- tion the County Treasurer and all persons know^n to have or claim any interest in said property shall be made parties. The Coun- ty Court may hear the said cause upon the relation of the parties and the testimony of w^itnesses, and evidence produced in open court, and, if the court shall find said property is not subject to any tax, as here- in provided, the court shall, by order, so determine: but if it shall appear that said property, or any part thereof, is subject to any such tax, the same shall be appraised and taxed as in other cases. An adjudica- tion by the County Court, as herein pro- vided, shall be conclusive as to the lien of the tax herein provided upon said prop- erty, subject to appeal to the Supreme Court of the state by the County Treasurer, or Attorney General of the state, in behalf of the people, or by any party having an interest in said property. The fees and costs in all cases arising under this section shall be the same as are now or may hereafter be allow^ed by law in cases at law in the County Court. 528. Proceeding to Quiet Question of Taxability— In General. It is frequently uncertain or disputable whether a tax is due or has accrued to the State. This uncertainty should be eliminated at once, so that the property trans- ferred may be commercially or merchantably clear, either 349 T>y determining the amount of the tax, if any, and the payment of same, or, by an adjudication finding that there is no tax. This uncertainty is caused by manifold questions, both of law and fact, nearly all of which grow out of the ques- tion whether the value of the property is less or more than the statutory exemptions, of the beneficiaries. To settle this basic proposition, it is necessary, among other things — 1st. To construe the will, interpret a deed or trust or other transfer, determine the heirship, etc., ascer- tain who are the beneficiaries and what amounts or proportions they legally receive, and if there are contingent interests created, whether Section 25 operates to make an arbitrary distribution for taxa- tion at the highest rate, or whether by the creation of a power of appointment, it may be necessary to postpone the determination of a tax. 2nd. It is not always clear whether the statutory ex- emption is allowable — as in the case of a claim that decedent stood in the acknowledged relation of par- ent to the benficiary. 3rd. Eesidence; date of death; and the meaning of * ^ Property in this State ' ' are material. 4th. Determination of the fair market value of the real or personal property presents problems for so- lution. The many situations that may arise cannot be antici- pated. There are apparently two methods offered by the Inher- itance Tax Law to quiet the question of tax liability and liens — ^^Section 23 and Section 11. A letter from a State or County oiB&cer giving an opin- ion that no tax is due is of no legal effect. The only determination of the question is by order of the County Judge or Court. 350 In 1901 there was added to the Law of 1895 what is known as Section 21^ which was without substantial change incorporated in the Law of 1909 as Section 23. It provides in part, as follows: *'When any person interested in any property in this, State which shall have been transferred within the meaning of this Act shall deem the same is not subject to any tax, he may file a petition in the County Court of the proper County and such Court shall determine whether there is or is not a tax. ' ' The County Treasurer shall be made a party and the Attorney General, who is not expressly made a party, may appeal from the judgment of the Court; in case there is no tax the Court may so decree. The apparent intent of this Section is, among other things, to foreclose the State, by the entry of a *^no tax'' judgment from forever raising the question of taxabil- ity of the property and subject matter adjudicated. The County Treasurer, under this Section, is intended to be designated as the representative of the State. A large number of cases have been commenced under this section, in which no tax orders have been entered, and the practice, procedure, form petition and decree of No Tax are hereinafter given. 529. The Other Section Providing Remedy to Quiet Question of Taxability. There is another section which affords the remedy con- templated in Section 23; that is Section 11* wherein the ♦It is the author's personal view that Section 11 offers a much safer and more certain remedy to secure the foreclosure of the State on the question of taxability and lien than Section 23. Although a proceeding under Section 11 may be more expensive, by reason of the County Judge refusing to act where a tax is not apparently due, be- cause the appraiser's services are payable only out of the tax collected in the particular appraisement, yet the object of the moving party is to secure an irrefragable clearance of tax liens or liabilities, and an additional but inconsiderable expense on account of costs might be wisely incurred. 351 County Judge, by a legal procedure wHch has the pres- tige of judicial interpretation, appoints an appraiser, on whose report, the said County Judge determines whether there is or is not a tax. 530. Procedure for Determining Taxability Un- der Section 11. The procedure for determination of taxability, and se- curing a no tax order, under Section 11 is the same as the procedure for assessing a tax, with the exception that a guaranty is required of the moving party to pay the costs of the proceeding. Costs must be guaranteed where it is not clear that there is a tax, in order to insure payment of the appraiser and his. necessary disburse- ments. 531. Section 23. Property "in This State.'» This covers all property of whatsoever kind, construc- tively or tangibly within this state (see cases under Sec- tion 1 for decisions), whether owned by a resident or non-resident of this state. Property that is compre- hended within the meaning of Section 1 would be within Section 23, as well as property covered by Section 9. 532. Transferred Within the Meaning of This Act. The meaning of the phrase *^ property in this state'' or *^ within this state'' is interpreted in People v. Griffith, 245 111. 532 (decision under Law of 1895), as follows:, *^The succession to the ownership of property being by permission of the state, the state can im- pose conditions in granting such privilege or per- 'mission. The Courts therefore have upheld the im- position of an Inheritance Tax whenever the state has jurisdiction of the beneficiary or the subject matter, regardless of the actual location of the per- 352 sonal property or the domicile of the decedent. * * • The liability of property to an inheritance tax does not depend upon the location, but upon whether the beneficiary came into its possession through the ex- ercise of a privilege conferred by the State'*. In National Safe Deposit Company v. Stead, Attorney General, 250 lU. 584*, the Court said: *^It is clear, therefore, that the State has an in- terest in every estate that is subject to the payment of an inheritance tax, and in all such proceedings the Attorney General or some other designated offi- cer, is the representative of the State. {People v. Sholem, 238 111. 203). We think, therefore, that the conclusion, from what has been said, logically and necessarily follows that where a lessee of the appel- lant dies leaving property in one of the safety de- posit boxes or safes of the appellant, the State, by its proper representative, has the right to be ad- vised whether or not it shall ultimately be estab- lished that it has an interest in such property and of the time when the property will be surrendered and delivered by the appellant to the personal represent- ative, heir or devisee of the decedent, for the pur- pose of being informed as to whether the succession to such property is subject to an inheritance tax. If such were not held to be the law, all moneys, se- curities or other valuables held by appellant in its safety deposit boxes or safes for its lessees, upon the death of a lessee might be transferred to parties other than the State or its representatives and im- mediately removed to a foreign state or country or concealed or otherwise disposed of, and the true owner of the property — in part, that is, the State — be deprived of all right to enjoy the use and posses- sion of such property''. 533. Interested Party. An interested party may be the administrator, exec- utor, trustee, heir, beneficiary, transferee, donee, pur- chaser, Attorney General or Inheritance Tax Attorney. ♦Writ of Error to United States Supreme Court. 353 534. Petition — Form — ^Allegations — Proof Under Section 23. The requirements of the County Court are that all facts material of proof in a no tax proceeding under Section 23 shall be alleged or negatived in a petition, the prayer of which is for a judgment of no tax. The allegations must be set forth in systematic order. A form petition showing general allegations, and the order in which they occur, is hereinafter set forth for the use of parties electing to proceed under said section. 535. Description of Property in Copy of Inventory Made a Part of Petition. All real estate should be described (in addition to the legal description) by street numbers, if any — and the frontage and depth of lot, improvements and income must be shown. If not contained in the inventory, a state- ment referring to the inventory item giving such infor- mation must be attached to the petition. Shares of stock and bonds must be described by cer- tificate and serial numbers. 354 536. Form Petition for No Tax. State of Illinois ^ County of Cook f ^^ In the County Court of Cook County. To THE Term of Said Court. In the Matter of the Estate of John Doe, deceased. No Petition for no Tax. To the Honorable John E. Owens,* Judge of the County Court of Cook County. Your petitioners, George Doe and Charles Brown, as executors, by John Smith, their attorney, respect- fully show unto your Honor that said John Doe de- parted this life testate on the 10th day of May, A. D. 1909, a resident of the City of Chicago, County of Cook and State of Illinois ; that the will and codicils of said decedent have been, without objection, (or if objection has been made to probate or otherwise, state the facts), duly admitted to probate in the Probate Court of Cook County, Illinois, and that your petitioners qualified thereunder as executors and are now acting as such. A true copy of said last will and codicils are hereto attached, marked Ex- hibit ^^A'* and made a part of this petition. Your petitioner further shows unto your Honor that the decedent died possessed of personal prop- erty and rights and interests therein tangibly situate in the States of Illinois, New York, Pennsylvania, California, Iowa and Floroda, all of said personal property is specifically described in amount and kind in an inventory filed by executor in the Probate Court of Cook County, Illinois ; a copy of which is herewith attached to this petition as Exhibit **B'^ and made a part thereof; that said decedent died ♦Judge of the County Court of Cook County — elected November. 1910. 355 seized of real estate situate in tlie states of Wis- consin and Illinois; a description of the real estate situate in the State of Illinois is specifically set forth in said inventory heretofore referred to. Your Petitioner deposes that Exhibit **B'' contains a complete list and description of all real estate locat- ed in the State of Illinois of which decedent was seized at the time of death, and that it further con- tains a complete list and description of all personal property, rights and interests therein and evi- dences thereof, wherever located, of which decedent died possessed. Your Petitioner further represents that the total value of the real estate in Illinois does not exceed $74,000.00 ; and that the total gross value of all per- sonal property, interests and rights and credits does not exceed $6,000.00, making a total gross estate of $80,000.00. That the real estate in Illinois was chargeable at the time of death of decedent with a total mortgage indebtedness of $3,000.00, distributed upon the prop- erty as set forth in said Exhibit ^^B'\ That the other indebtedness of decedent owing at death is as follows : $2,000.00 borrowed by decedent from the Central National Bank of Chicago, and evi- denced by decedent ^s note for that amount. The foregoing indebtedness is admitted to be due by ex- ecutors and will be paid. There will also be incurred the general charge of administration fees and costs, together with execu- tors' and attorney's fees, which your Petitioner has not estimated but prays may be computed if your Honor deems it necessary to arrive at a more cor-^ rect amount of the net distribution of the estate. (Funeral expense is deductible as well as household bills, etc., unpaid at death — but must be itemized if claimed as a deduction). Your petitioner further represents that the debts above described should be deducted as follows: $2,000.00 from the gross personal estate, leaving $4,000.00 for distribution; $3,000.00 from the gross value of real estate, leaving $71,000.00 for distribu- tion or a total of $75,000.00 net assets. 356 Your petitioner further shows that said decedent left him surviving as his only heirs at law and next of kin, Mary Doe, his widow, who was thirty-five years of age at the date of decedent's death; George Doe twenty-two years of age, and Margaret Doe, fourteen years of age, children of said decedent, which facts are further shown by proof of heirship made in the Probate Court of Cook County, a copy of the Table of Heirship being hereto attached and marked Exhibit ^^C and made a part of this pe- tition. (If decedent adopted any child or children, so state and attach copy of decree of adoption). That said widow (who has accepted the will) and children are now living and take as beneficiaries un- der the will and codicils in the amounts as herein- after stated. (If children of an adopted child of decedent take property, trace their relationship by referring to the adoption of beneficiary's parents). Your petitioner further represents that the cash legacies exceed the net personal property, but that by the terms of the codicil said legacies are charge- able to the real estate. Your petitioner further shows that all the surviv- ing beneficiaries named in the will and codicils suc- ceeding to the property hereinabove referred to, together with their respective legal relationships to decedent and the value of their respective succes- sions are as follows: (The relationship must be carefully traced when beneficiary is further removed than father, mother, brother, sister, widow, husband and children. 357 Value of Statutory Succession. Exemption. Tax. Maey Doe, widow of decedent, age 35. By third clause of will, life estate in undivided one-third of real estate, present value $12,185.29 Award 1,000.00 Fifth clause of will, one-half of personal property 1,500.00 $14,685.29 $20,000.00 None George Doe, son of decedent, by Sixth clause of will, one-half of personal property $ 1,500.00 One-half of residue 14,707.36 16,207.36 20,000.00 None Maegaeet Doe, daughter of decedent, by residuary clause, one-half of residue. 14,707.35 20,000.00 None Augustus Doe, brother of decedent, by Sixth clause and Second clause of first codicil 10,000.00 20,000.00 None Charles Doe, nephew of decedent, being son of Henry Doe, brother of dece- dent, by Seventh clause and second codicil 2,000.00 2,000.00 None Grace Mohr, grandniece of decedent, be- ing daughter of Alice Mohr, who was the daughter of Katherine Wood, a sister of decedent, by second codicil (In case of intestacy show death of Alice Mohr and Katherine Wood)... 2,000.00 2,000.00 None John Glass, stranger in blood, first co- dicil 400.00 None The Old People's Home, a corporation organized under the laws of Illinois for charitable purposes and without the right to make dividends or dis- tribute profits or assets among its members, trustees or shareholders. By ninth clause of will, as increased by fourth clause of second codicil . . 5,000.00 Exempt under Sec. 2^, L. 1895, if tes- tator died before July 1, 1909, or Sec. 29, if testator died on or after July 1, 1909. Dorothy Doe, administratrix of the es- tate of William Doe, a brother of de- cedent, and beneficiary under the tenth clause of will of decedent. William Doe survived decedent, but died on June 1st, 1909, intestate. Letters having been issued to his widow, Dorothy Doe 10,000.00 20,000.00 None Total $75,000.00 358 Your Petitioner further states that Jacob Doe named in the twelfth paragraph of will died prior to death of decedent. Your Petitioner further states that said decedent was actively engaged in the retail hardware business up to his last illness, which lasted some three months until death; the immediate cause of death being di- agnosed as Brights Disease, from which he had suf- fered intermittently during the last ten years of his Hfe. That within thirty days of his death, while suffer- ing as aforesaid, he made a gift of $10,000.00 to his sister, Amanda Doe, who is not a beneficiary under his will, but other than this gift, said decedent did not during life, and while sick or injured, make any gift or gifts of money or property (real or personal) or any interest therein. (In case decedent made a gift while sick, allege all the facts). (In case decedent made no gifts, negative the fact in the language of this paragraph beginning with the word said *^ decedent'' in the line there- of). Your petitioner further states that said decedent did by warranty deed dated June 1st, 1896, transfer to his brother Michael Doe, a two-story frame cot- tage at 46 Blank Street, worth now $2,500.00, from which decedent received the rents until his death. Michael Doe is not a beneficiary in the will or codi- cils ; but other than this, said decedent did not dur- ing life transfer, assign or part with any money or property (real or personal) or any interest therein, reserving any part thereof or income therefrom un- til death; nor did he indirectly receive any income or rewards from any such transfer. (In case dece- dent made a transfer or transfers in his lifetime, even though he lost all title and ownership in the property transferred, but that he decedent, re- ceived rewards, income or interest from said prop- erty or from the transferee, whether by written agreement or oral arrangement, you are bounden under the rules of the Court to set forth fully the true facts for the Court's consideration). 359 (In case decedent made no transfers, negative the fact in the language used in this paragraph, be- ginning with the words '^said decedent** in the line thereof). (Do not join the gift and transfer paragraphs in one. They are separate subject matters and should be covered in separate paragraphs). Your petitioner therefore prays that Your Honor will enter an order herein finding that the property, real, personal and mixed, passing to the benefici- aries under the will and codicils of the said dece- dent and the transfers and gifts made in his life- time, is and are not liable for any inheritance tax under the laws of the State of Illinois ; and that said order also contains the finding that the respective successions of all the beneficiaries to all property passing by will, codicils, gifts and transfers, are not subject to, or liable for, any inheritance tax under the Law of this State. Your petitioner also prays that your Honor will ap- point a guardian ad litem in this proceeding to act for and represent Margaret Doe, the minor child of said de- cedent, as a party defendant, and that said guardian ad litem s.o appointed make answer to this petition, but not under oath, etc. Your petitioner makes , as County Treasurer of Cook County, , Inherit- ance Tax Attorney for Cook County, parties defendant to this proceeding and shows that he has served said County Treasurer and said Inheritance Tax Attorney with cop- ies of this petition and asks that they and each of them shall make answer hereunto, but not under oath, and in default thereof that the order above prayed may be en- tered instanter. May it please the Court to grant the writ of summons directed to the Sheriff of said Cook County commanding him that he summon the defendants. Inheritance Tax At- 360 torney, (by name), County Treasurer of Cook County, Illinois, (byname), and (other defendants) to appear be- fore this Court on the first day of the Term thereof to be held at the Court House at Chicago, in the County of Cook aforesaid, then and there to answer this petition. ., As Executors, George Doe, being first duly sworn, on oath states that he resides at 1415 Blank street, in the City of Chicago, Illinois.; that he has subscribed the foregoing petition and that the allegations therein contained are true. (Signature) Geoegb Doe. Subscribed and sworn to this day of , A. D. 1911. Notary Public. Charles Brown, being first duly sworn, on oath states that he resides at 1234 Blank street, in the City of Chi- cago, Illinois ; that he has subscribed the foregoing peti- tion and that the allegations therein contained are true. (Signature) Charles Brown. Subscribed and sworn to this , day of , A. D. 1911. Notary Public, 537. Petition for No Tax— Nonresident Decedent. If an affidavit has been filed with the Attorney General or Inheritance Tax Attorney fully covering the informa- tion required in the printed list of non-resident questions, and there appears no tax due, yet it is desired because of the ownership of real estate, or of the nature or charac- ter of the personal property, to have a No Tax order en- 361 tered, it i& not necessary to follow the form of the peti- tion hereinbefore set forth, because the aforesaid affidavit will contain the necessary facts on which to base an order of No Tax. The non-resident questions are in- tended to cover the field of appraisable property under the law of this State. Therefore a short petition by counsel for the moving party, reiterating the date of death, residence of deced- ent, distribution for taxation, and prayer for summons, etc., with an examined copy of the affidavit and exhibits attached, is sufficient. 538. Petition for No Tax— Relation of Parent to Beneficiary. If a claim is. made for the $20,000.00 exemption under Section 1, on the ground that the decedent stood in the acknowledged relation of a parent, or that some other exemption, deduction or claim renders the property trans- ferred not taxable, the facts necessary to establish this relationship or other claim must be alleged and proven. The burden of proof is upon the person or corporation claiming the property free from tax. 539. Order of No Tax. The order of No Tax, under Section 23, is usually in the following form: State of Illinois, ) County of Cook. ) ^^* In the County Court of Cook County. In the Matter of the Estate of ) No John Doe, deceased. j Obder of ^ ^ No Tax. ' ' This, cause coming on to be heard on the petition of George Doe and Charles Brown, as executors of the last will and codicils of John Doe, deceased, praying for an 362 ** Order of No Tax,'* finding all the property appraisable by the death of said decedent not subject to lien or liens, nor liable for inheritance taxes under the Inheritance Tax Laws in force in this state ; and finding the successions, rights and interests of the beneficiaries., donees and trans- ferees not taxable thereunder. And it appearing that , County Treasurer, was duly served with summons (or by appear- ance, as the case may be), and that due notice of the hearing of this cause was regularly served upon said County Treasurer; and it further appearing that said County Treasurer is in Court. And it further appearing that , , In- heritance Tax Attorney, was duly served with summons (or is in Court by appearance as the case may be), who was present in person at all hearings hereof and at the presentation of this order or decree, and that all parties to this proceeding are in Court; And it further appearing that the Court has plenary jurisdiction in the premises, the Court finds: That decedent, John Doe, died testate, domiciled in the City of Chicago, County of Cook and State of Illinois, and that his will and codicils were admitted to probate in said County, without objection — that said petitioners, George Doe and Charles Brown, qualified as executors and are still acting as such. That on due inquiry the total net property appraisable by reason of the death of decedent is : Personal, $4,000.00 ; real, $71,000.00; total, $75,000.00. That the distribution of said property under the will and codicils of decedent for the purpose of appraisement and to disclose the taxability of the successions thereto, together with the statutory exemptions claimed, as al- 363 leged in said executors' petition, is hereby approved and confirmed. That said decedent did not, prior to death, make any gift or gifts in contemplation of death that are taxable under the Inheritance Tax Law in force in this State. That said decedent did not, prior to death, make any transfer or transfers intended to take effect in possession or enjoyment at or after such death, that are taxable un- der the Inheritance Tax Law of this State. It is therefoee ordeked, adjudged and decreed that there is no Inheritance Tax due upon the succession or successions of any or either of the beneficiaries under the will and codicils to the property described in the copy of the inventory made a part of the petition of executors, and that the real, personal and mixed property described therein is free and clear of any and all liens on account of Inheritance Taxes. It is further ordered, adjudged and decreed that de- cedent made no gift or gifts in contemplation of death, and that decedent made no transfer or transfers intended to take effect in possession or enjoyment at or after such death that are taxable under the Inheritance Tax Law of this State. Judge of the Co%mty Court of Cook Cownty, Entered this day of ., A. D Suggestion to Lawyers. All orders of *Uax'' or *^No Tax'* being spread of record in the office of the Clerk of the County Court, it is considered good practice to set forth in orders of No Tax (or tax), by legal description, the real estate involved. This makes a permanent record of the real 364 estate whicli it is desired to relieve of the question of lien. If it is ultimately desired to obtain under Section 9, Inheritance Tax Laws 1909, the consent of state officials for the transfer of specific personal property, or evi- dences thereof, such as shares of stock or bonds, it may be well to describe the same by certificate or serial num- bers. 540. Entry of No Tax Order. The Law provides that the County Treasurer shall be made a party defendant. The rules of the County Court of Cook County require that the Inheritance Tax Attor- ney and County Treasurer shall be served with notice of the hearing on the petition, and if the order is entered without a hearing that the order shall be 0' K.'d by the Inheritance Tax Attorney and notice of the time of pres- entation given the County Treasurer. There are two methods of disposing of Petitions for No Tax. First, by hearing before the Court, at which witnesses must be produced to establish all the allegations of the petition. Second, by submitting the petition and draft order, to- gether with copies thereof, to the Inheritance Tax Attor- ney, who makes an investigation of the facts, values, de- ductions and other material matters., and if satisfied there is no tax due by reason of decedent's death, usually 0. K.'s the order. The petition and 0. K.*d order are thereupon pre- sented to the County Court on motion of course, notice being given to the County Treasurer of the time of pres- 365 entation, and if the Court considers the order proper and correct, enters the same without a hearing. The order should either be 0. K.'d by the County Treasurer or notice of the time and place of presentation of said order should be served him as well as. on all de- fendants, so that any objection to the entry of such order may be heard. 366 CHAPTER XXIX. Attorney General Opinions. 543. State's Attorney — Fees in General — Deposit to stop Interest. 544. Interest — Euns until Tax is Paid. 545. Deductions — When Expense for Monument cannot be De- ducted. 546. Appraiser Cannot Employ Lawyer and Charge his Services Against State. 547. Tax — When Postponed and When Immediately Collectible. 548. Public Administrator has no General Duty to Enforce In- heritance Tax Law. 549. A Will is not an Asset Within the Meaning of Section Nine of the Inheritance Tax Act, and may be Kemoved for the Purposes of Probate With- out the Consent of the At- torney General and State Treasurer. 550. Widow's Award is Taxable. 551. Eefund of Tax Erroneously Paid. 553. Partnership Assets in Foreign State When Owned by De- ceased Resident of Illinois. 543. State's Attorney — Fees in General — ^Deposit to Stop Interest. In reply to your letter of March 6tli, receipt of which has been heretofore acknowledged, in which you request me to render you an opinion as to your duties as State's Attorney in the matter of the collection of inheritance taxes in your county and your compensation for services performed in relation thereto, will say that your ques- tions hereinafter set out will be answered together, thus avoiding useless repetition. 1. *^If a State's Attorney commences a proceed- ing for the assessment of an inheritance tax by filing a petition in the County Court and within six (6) months after the death of decedent, and in cases where no steps have been taken by the Executor or administrator of the estate for the assessment of the said tax, and the State's Attorney appears for The People and the Court finds an Inheritance Tax due against said estate, under such circumstances is the State's Attorney entitled to a reasonable at- torney fee to be fixed by the Court in such case ? 367 2. **Is it the duty of the State's Attorney to ap- pear for The People in all ca&es of Inheritance Tax matters ? 3. **Can a State's Attorney file a petition in Comity Court immediately after the death of de- cedent for the purpose of the assessment of an in- heritance tax on an estate subject to tax, or must he wait six (6) months to allow the executor or admin- istrator to have the same done voluntarily?" There are two statutory provisions which fix the duty of State's Attorneys in inheritance tax matters. Para- graph 2 of Section 5 of Chapter 14, Hurd's Revised Stat- utes, 1909, provides, among other things, that it shall be the duty of the State 's Attorney in each county * * to pros- ecute actions and proceedings for the recovery * * * Revenues * * * accruing to the State, ' ' and Section 16 of the Inheritance Tax Act provides : **When it appears that any tax is due and unpaid under this Act and the persons, institutions or cor- porations liable for said tax have refused or neg- lected to pay the same, it shall be the duty of the State's Attorney in counties of the first and second class * * * if he have proper cause to believe a tax is due and unpaid, to prosecute the collection of the same in the County Court of the proper county in the manner provided in Section 15 of the Act for the enforcement and collection of such tax. ' ' The quotation from Chapter 14, in my opinion, requires and I consider it the duty of the State's Attorney to appear for and represent the State in all proceedings pertaining to the ascertainment of the amount due and the collection of inheritance taxes. That such proceed- ings involve the revenue and that the State is vitally interested therein is too plain a proposition to require citation of authority. The portion of Section 16 of the Inheritance Tax Act 368 quoted makes it the duty of the State's Attorney to pros- ecute the collection of the tax, when the amount thereof has been ascertained and assessed in the manner pro- vided by statute, but the tax has not been paid. As I construe this section, there is but one contingency when the State's Attorney is required or authorized to act thereunder, and that igi, where the proceedings to assess the tax have culminated in an order fixing the amount thereof and payment has been refused or neglected to be made by the person or corporation whose duty it is to pay the tax; it then becomes the duty of the State's At- torney to enforce the collection of the amount due by the method outlined in Section 15. The County Judge, by Section 11, is given full power to appoint an Appraiser upon his own motion or of any party in interest. Under this section, the State's Attor- ney is authorized to present a petition on behalf of the State, asking for the appointment of an Appraiser, and it is his duty to do so if it appear^ that the administra- tor, executor or person whose duty it is primarily to do so does not intend to comply with the law. Upon ap- pointment, it becomes the duty of the Appraiser to ascer- tain and report to the County Judge the fair market value of the property of the decedent, from which the County Judge fixes the amount of the tax, if no appeal is taken ; and the amount so fixed, or, if appeal is taken, eventually assessed, becomes due and payable. Under the several provisions of the statute designed to prevent the distribution of the estate or the removal of it from the jurisdiction of the assessing officers, liens are cre- ated, and the executors, administrators, trustees., and even banking houses and like institutions are required, in dealing with the property of the decedent, to protect the State against the loss of the tax, or, in the event they 369 do not, are made personally liable for the tax. There- fore, under the provision of Section 5, for instance, after the tax has been assessed, it may appear that the admin- istrator, executor or trustee has, distributed the estate and has not retained the amount due the State as in- heritance tax; in such case, Sections 15 and 16 provide the method of procedure for the collection of the tax from such executor administrator or trustee. I am unable to see any reason for holding that Section 11 does not cover every case where the necessity api)ears for the appointment of an appraiser, either by voluntary or involuntary proceeding, and it seems that the proced- ure provided for by Sections 15 and 16 ia not adapted to the ascertainment of the amount of the tax due and no reason appears for providing a different method of ap- pointing an appraiser under one state of facts than the other. I, therefore, am of the opinion that the method of appointing appraisers as outlined in Section 11 applies to all cases and that Sections 15 and 16 provide the method of collecting the tax where payment is refused or neglected after it has been ascertained by the method and machinery provided by the act for so doing. State's Attorneys have never been allowed compensa- tion for appearing for and representing The People in matters involving the revenue, or, rather, it may be said that the compensation they receive from the State is in- tended to include their services in such matters. No reason appears as to why the rule should be different in proceedings relative to the revenue raised by the inher- itance tax than in other matters involving the revenue unless an exception is made by the statute under consid- eration. The only thing relative to the fees of the State 's Attorney is in Section 16 and is — **in every such case said court shall allow as costs 370 in said case sucli fees to said attorney as the court may deem reasonable/' It is., therefore, my opinion, that in cases brought to recover the amount of the tax, dne and unpaid, after the same has been ascertained and fixed, the court may fix and allow a reasonable attorney fee to be taxed as costs against the defendant, and that in all other procedure for the assessment and collection of the tax, there being no fee provided therefor by statute and the revenue being exempted by express enactment from those matters upon which State's Attorneys are entitled to commission, thes.e services must be considered to be among those for which the amount paid them from the State Treasury is deemed to compensate. Attorney General Illinois Report for 1910, 436.) I have no question of the right of the State's Attor- ney, as the representative of the State, to file a petition for the appointment of an appraiser ; in fact, I consider it his duty to do s.o in proper case. It has been held to be primarily the duty of the administrator or executor, or the person charged with the payment of the tax, to do this, and that the power given the County Judge or State 's Attorney to act in the premises was not intended to relieve the personal representative of this obligation. Frazer v. People, 3 N. Y. Supp. 134. There are two questions, then, involved : First, when, under Section 11, the representative of the State can ap- ply for the appointment of an appraiser to fi^ the value of the property, with a view to having fixed and assessed the amount of the tax. Second, when can the State's At- torney proceed under Sections 15 and 16 to the collec- tion of the tax so ascertained and assessed? The matter of the appraisement is a mere incident to 371 the collection or payment of the tax. It is the method provided by statute for ascertaining the amount due. Under Section 11, in my opinion, any party interest, in- cluding the State, at any time, may apply for the appoint- ment of an appraiser, with a view to ascertaining the ex- tent and value of the estate and having the tax assessed. It is to the second proposition, involving action under Sections 15 and 16, that I shall devote the most of my consideration ; that is, 'whether prior to the six months ' period fixed for discount and rebate, any presumption of refusal or neglect to pay the tax arises so that the par- ties may be subjected to the payment of costs under the provisions of Section 16. Section 3 is as follows : **A11 taxes imposed by this act, unless otherwise herein provided for, shall be due and payable at the death of the decedent, and interest at the rate of six per cent, per annum shall be charged and collected thereon for such time as said taxes are not paid: Provided, that if said tax is. paid within six months from the accruing thereof, interest shall not be charged or collected thereon, but a discount of five per cent, shall be allowed and deducted from said tax.'' This provision makes the tax due and payable at the death of the decedent, and if it was not qualified by the further provision relative to the rebating or interest and allowance of discount if paid within six months, there would be no difficulty in construing it. In my opinion, the purpose of rebating the interest and allowing the discount is to encourage the early and voluntary payment of the tax. There can be no other possible reason for the allowance of this discount. If this be the intention of the Legislature, it seems to me the further intention is clearly implied, that, until the 372 period fixed by it for voluntary payments at discount lias elapsed, no proceeding for the collection of the tax (as distinguished from its assessment) can be instituted. To hold otherwise, and that the State's Attorney could im- mediately after the death of the decedent proceed to en- force the collection of the tax, would be to do away with the reason of the Legislature for allowing the discount. This has been the construction of the New York Courts of a similar statute, which, because of the fact that our statute follows their statute, is entitled to considerable weight upon questions of construction. The Court, in the ease of Frazer v. People, 3 N. Y. Supp. 134; 6 Dem. 174, said: ^^I think that Section 4 of the Act of 1887, read with its other provisions, indicates the intention to be that while tax is. due and payable from the death of the decedent for some purposes — among others, that proceedings may be had to appraise and ascer- tain the value of the estate subject to the tax, and the amount of the tax, and that interest may be charged from the death of the decedent in case the tax is not paid within eighteen months thereafter — yet as the section referred to provides that if the tax is paid within eighteen months no interest shall be charged and collected thereon, it would s.eem that no proceeding can be instituted to enforce the pay- ment of the tax within eighteen months. See the Matter of the Estate of Mrs, Astor (20 Abb. N. C. 405-415). It was intended, I believe, to enable the representative of the decedent, under many conting- encies that may arise in the settlement of the estate, to ascertain the amount of the tax and for that pur- pose time may be necessary, to determine the in- debtedness of the decedent and the like. It is claimed by the district attorney that the cita- tion in this matter is. to show cause ^why the tax should not be ascertained' as well as why it should not be paid. That is so, but I do not think costs may be awarded except * after the refusal or neglect of 373 the persons interested in the property liable to said tax to pay the same.' " Mr. Dos Passes, in di&cussing this proposition, says: ^*The executor, administrator, or any other party interested in the estate liable to the tax, may also Tinder this act institute proceedings to have the prop- erty assessed or valued for the purpose of ascertain- ing the amount of tax due. * * * But it will be observed that this proceeding is of an entirely differ- ent nature from the one directed to be begun by the dis.trict attorney, which is, primarily, to compel pay- ment of the tax from the parties who have re- fused or neglected to pay the same.*' Dos Passes, Inheritance Tax Laws (2d ed.), Sec. 66, p. 397. It is, therefore, in my opinion, the duty of the State's Attorney, generally, as circumstances may require, in the matter of appraisement and ascertainment of the tax, to represent the State, and in these matters he may pro- ceed at any time after the death of the decedent, and for these services he can be allowed no compensation other than that paid him annually from the State Treasury. If, after the expiration of six months, the State's At- torney shall have proper cause to believe" that a tax is due and unpaid, and the same has been assessed, then he may proceed under Section 16, and the Court may fix a reasonable attorney fee to be taxed as costs against the defendant. I am aware that an opinion to the State's Attorney of Madison County, as published at page 611 of the Re- port of the Attorney G-eneral, 1910, states a rule which is in conflict with this opinion. I have, since our interview in this matter and the re- ceipt of your letter, given these questions careful consid- eration and have reached the conclusion that the con- 374 stmction of the statute arrived at in this opinion is the correct one, and the one that should be adopted by this department, and that the law as herein stated is. in har- mony with the decisions of the courts and the intention of the Legislature, and have extended this opinion some- what in order that my reasons for reaching such conclu- sion may clearly appear. Opinion to State's Attorney, April 17th, 1911. 544. Interest— Runs Until Tax Is Paid. The Inheritance Tax Act provides for the payment of interest on inheritance taxes and the right to collect such interest cannot be effected by the failure of the County Judge or other officers to file a statement showing that the estate is taxable. It is claimed that no interest is due upon the amount of the inheritance tax because neither the County Judge nor the Clerk filed a statement in writing with the County Treasurer showing this estate to be probably taxable. This contention is, in my opinion, without merit. The liability to interest on the amount of the tax is not de- pendent upon the act of the County Judge or Clerk in reporting estates probably subject to the tax. On the con- trary, the statute specifically provides that the tax shall be due and payable at the death of the decedent, with in- terest at six per cent., for the time the same remains un- paid, if not paid within six months. When the liability to pay interest has been incurred it is chargeable from the time the tax accrued. Matter of Davis, 149 N. Y. 539. It seems to me that this contention is a plea of ignor- ance of the law. The Inheritance Tax Act places upon the legal representatives of a decedent the duty of pay- ing the tax in the first instance and makes them person- 375 ally liable therefor. They are in a position to know be- fore any other person whether an inheritance tax is due. To say that they did not know any tax was due, because the Judge and Clerk failed to report the probability of it to the Treasurer is nothing more than to say that they were ignorant of the law, which is no excuse to relieve them from the payment of interest. Matter of Piatt, 29 N. Y. S. 396. In my opinion, interest should be collected on the tax in this case if that is the only contention against it. Opinion to Special Assistant, August 27th, 1909. 545. Deductions — 'When Expense for Monument Cannot Be Deducted. An Inheritance Tax Appraiser should determine the fair market value of the estate at the time of decedent's death, and for that purpose should consider claims against the estate which were contracted for by decedent ; moneys expended for monument. You state that there are a number of claims against the estate which the administrator has paid, but which were never filed or passed on by the County Court. You submit the question whether it is proper to allow these payments in making your appraisement for inheritance tax purposes, and also whether it is proper to allow a claim for a monument. In reply will say that it is the duty of the appraiser to fix the fair market value of the estate, as of the time of the decedent's death. Dos Passes, in his work on Inheritance Tax, deduces the principle that where such is the duty of the appraiser, it is within his powers and duty to consider evidence re- lating to the debts of the decedent, which are or may be- come liens upon his estate. Such debts, however, are lim- 376 ited to those which had their inception during the lifetime of the decedent. It is, therefore, my opinion that you, as appraiser, for inheritance tax purposes, should hear the evidence with reference to claims against the estate, and from all the evidence with reference thereto, determine the fair market value of it. However, I do not think that claim for a monument should be allowed or considered by you to affect the value of the estate, unless a contract with reference thereto was made by the decedent during his lifetime. The reason for this is that if the heirs or ad- ministrator, after the decedent's death, contracted for this monument, claim for the same was not a debt due or to become due from the estate and contracted for by the decedent. Opinion to State 's Attorney, January 15th, 1909. 546. Appraiser Cannot Employ "LsLwyer and Charge His Services Against State. An appraiser appointed under the Inheritance Tax Law is not entitled to compensation for fees paid to special counsel. You have called my attention to the provisions of the Inheritance Tax Act, with reference to the requirement that County Treasurers make semi-annual reports. If, upon such reports, it appears that appraisers in inherit- ance tax proceedings have employed special attorneys for their instruction and advice as to such proceeding, and that such attorneys have been paid for services rendered; out of the funds collected as inheritance taxes in particu- lar estates involved, you submit the question whether the Auditor of Public Accounts or the State Treasurer is in- vested with authority to object to the payments so made and to refuse to allow credit for the same to Treasurers so reporting. You also ask to be advised as to whom 377 STicli a matter should be referred for necessary action in the premises. In reply will say that upon the receipt of your com- munication, I instituted an investigation, with the result of finding that in a number of instances appraisers in inheritance tax proceedings have reported among their expense items fees paid to attorneys employed by them in such proceedings. Such reports being approved by the County Judge, who thereupon entered his orders and issued his certificates to put into effect such approval, has resulted in the payment, to the attorneys so em- ployed by the inheritance tax appraiser, of moneys col- lected for inheritance taxes. I am of the opinion that payments to attorneys em- ployed by inheritance tax appraisers, when sought to be charged against inheritance tax funds, is unwarranted and cannot be justified. The duties of the inheritance tax appraiser and his compensation are defined in Section 11 of the Inheritance Tax Act, which provides that apprais- ers shall be appointed, ^^ whose duty it shall be forthwith to give such notice by mail, to all persons known to have or claim an in- terest in such property, and to such persons as the County Judge may by order direct, of the time and place he will appraise such property, and at such time and place to appraise the same at a fair market value, and for that purpose the appraiser is author- ized by leave of the County Judge, to use subpoena* for and to compel the attendance of witnesses before him, and to take the evidence of such witnesses under oath concerning such property and the value thereof, and he shall make a report thereof and of such value in writing, to said County Judge, with the deposi- tions of the witnesses examined and such other facts in relation thereto and to said matters as said County Judge may, by order, require to be filed in the office of the clerk of said County Court, and from this re 378 port the said County Judge shall forthwith assess and fix the then cash value of all estates, annuities and life estates or terms of years growing out of said estate and the tax to which the same is liable, and shall immediately give notice by mail to all parties known to be interested therein. Any person or per- sons dissatisfied with the appraisement or assess- ment may appeal therefrom to the County Court of the proper county within sixty days after the mak- ing and filing of such appraisement or assessment on paying or giving security satisfactory to the County Judge to pay all costs, together with whatever taxes shall be fixed by said Court. The said appraiser shall be paid by the County Treasurer out of any funds he may have in his hands on account of the inheritance tax collected in said appraisement, as by law provided, on the certificate of the County Judge, such compensation as such Judge may deem just for said appraiser's services as such appraiser, not to exceed ten dollars per day for each day actually and necessarily employed in said appraisement, together with his actual and necessary traveling expenses and disbursements, including such witness fees paid by him.'' The rule is that the compensation of an officer of this kind, if he shall have any, must be provided for in the statute, and that only such compensation as the statutes provide for him is he entitled to receive. I am aware of no rule that can operate to extend the compensation of the inheritance tax appraiser, or the matters for which he is entitled to charge compensation, to other items than those specifically mentioned in the statute, which are, **such compensation as such Judge may deem just for said appraiser's services as such appraiser, not to exceed ten dollars per day for each day actually and necessarily employed in said appraisement, to- gether with his actual and necessary traveling ex- penses and disbursements, including such witness fees paid by him." 379 These are the only items payable to the appraiser and the County Judge must issue his certificate in regard to such payment before the County Treasurer is authorized to deduct the amount thereof from the tax collected. The office of appraiser in inheritance tax proceedings, as I view it in the light of the duties to be performed, can present no circumstances in which the appraiser should be under the necessity of seeking his own private counsel as to such proceedings. He gives notice of the time and place where he will attend for the purpose of appraising the property, and may take the evidence of witnesses. Such proceeding is in the nature of a hear- ing in the matter of the appraisement and for that pur- pose the interested parties who are all entitled to be pres- ent may have counsel to represent them and to advise the appraiser. The interests of the public will be represented by the State 's Attorney or the Attorney-General, and so the appraiser ought to expect to be fully advised by such counsel of the parties as to the state of the law upon any proposition likely to arise for his determination. Even in the event that counsel for the parties did not attend before the appraiser, I conceive that the appraiser may call upon the County Judge for advice in the premises. In this view of the matter, the situation is not unlike that pertaining to the Master in Chancery as to whose fees it is the well settled law in a long line of cases that he cannot receive compensation except for those things specifically mentioned in the statute. I therefore come to the conclusion that because the statute fails to provide that the inheritance tax appraiser may have compensation for legal counsel, that if an or- der shall be issued by a County Judge for the payment of the fees of counsel employed by an appraiser in such 380 proceeding, the issuance of such order would be, and is, an error and is, therefore, unlawful. Opinion to State Treasurer, June 10th, 1910. 547. Tax — When Postponed and "WTien Immedi- ately Collectible. 1. Under the Inheritance Tax Act in force prior to July 1st, 1909, contingent estates could not be appraised for inheritance tax purposes until the contingency hap- pened. 2. Under the Inheritance Tax Act of 1909, provision is made for compromising the amount of the inheritance tax in an estate in which the decedent died prior to July 1st, 1909. 3. In a case in which the decedent died subsequent to July 1st, 1909, no postponement of the tax is necessary in case of contingent estates but in such a case a tax is im- mediately imposed at the highest rate possible upon the happening of any of the contingencies depending upon the devise. Under date of the 30th instant you have submitted for my consideration the case of a decedent who died testate, seized of real estate of the value of one hundred and twenty thousand dollars, devising the same to a son in fee simple on the following conditions : 1. Possession of the real estate not to be vested in the devisee until he attains the age of twenty-one, if the father lives to that period, but 2. If the father dies before the devisee attains the age of twenty-one then possession of the real estate to vest immediately in such devisee. 3. If that devisee die before attaining the age of twen- ty-one then the father to take a life estate in the real es- 381 iate with remainder in fee to the heirs of a deceased brother. You say that in proceeding to collect the inheritance tax upon the succession to this estate you have met with difficulty in satisfactorily jfixing the persons to be taxed and the amounts to be paid and ask to be advised as to the state of the law on this subject. In reply will say that the devise to the son of the tes- tator under the terms of the will, will not vest until he becomes twenty-one years of age, or earlier if his father dies before that time. In case the son dies before attain- ing the age of twenty-one the devise shifts to a life estate in the father (brother) with remainder to his collateral heirs, who are strangers of the blood to the testator. Therefore, the devise is contingent and ambulatory. It cannot be determined with legal certainty at what time the devise will operate to vest either of the estates created in the will with reference thereto, because the vesting of title and possession under it is postponed until the happening of one of the contingencies mentioned. It is for this reason that you are unable to determine the persons who are liable to pay the inheritance tax and the amount thereof. If the decedent died prior to July 1st, 1909, as to which you have not stated the time of his decease, it will be one of the class of cases which fall under the rule of People V. McCormick, 208 HI. 437, where the Court holds that to authorize the imposition of an inheritance tax there must be actual ownership and the possession of a title that can be conveyed. Under the authority of this case, prior to July 1st, 1909, such a contingent estate as you have described could not be taxed until the contingency vesting the estate had hap- pened. If, therefore, the case which you put falls within 382 the rule of the McCormick case, the estates created by the devise under consideration cannot be taxed presently but the imposition of the tax must be postponed until the happening of one of the contingencies named whereby title will become actually vested. If the tax accrued under the Act of 1909, then Section 25 provides that there shall be no postponement but that the tax shall be immediately imposed at the highest rate possible upon the happening of any of the contingencies depending upon the devise. In view of the legislative intention that the provision of the law should obviate the postponement of inherit- ance tax proceedings in such a case, it is clear that it is the further intention of the Legislature that a tax should be imposed in this case as if the condition had transpired whereby the fee of the real estate will pass to the heirs of the deceased brother who is mentioned, viz. : as if the son had died before attaining the age of twenty-one. Such a proceeding, in my opinion, is clearly indicated by this statute and may be safely followed in this in- stance. If any other contingency should happen, as mentioned in the will, whereby the title to the real estate will be vested in another person whose succession thereto is tax- able at a lower rate than that of the heirs of the deceased brother, the statute further contemplates that the differ- ence in the amount of the tax that would be paid by such person, and that which was actually paid at the time of the proceedings upon the supposed succession thereto of the heirs of the deceased brother, may be recovered. Opinion to Staters Attorney, March 31st, 1910. 383 548. Public Administrator Has No General Duty to Enforce Inheritance Tax La\xr. Public Administrator Not to Enforce Payment of Inheritance Taxes. Must Pay Tax on Estates in His Hands. I have your favor of the 17th inst., stating that within the past few years persons in Carroll County have died leaving estates subject to the inheritance tax, prescribed by the Statutes of Illinois, but that no effort has been made to collect same, and you ask my opinion whether it is your duty as Public Administrator of the County to take steps toward the collection of these taxes. In reply, permit me to call your attention to Section 11 of the Inheritance Tax Law (Hurd's Revised Statutes, 1908, paragraph 376, chapter 120), which provides that the County Judge, on the application of any interested party, or upon his own motion, shall appoint some com- petent person as appraiser as often as or whenever oc- casion may require, who shall proceed to appraise the property of the deceased. When the tax is not paid as provided it is the duty of the State's Attorney (in counties of the first and second class) to enforce collection. In my opinion it is no part of your official duty as pub- lic administrator to enforce the payment of the inherit- ance tax except as estates subject thereto come into your hands. Opinion to Public Administrator, February 18th, 1909. 384 549. A Will Is Not an Asset Within the Meaning of Section Nine of the Inheritance Tax Act, and May Be Removed for the Purposes of Probate Without the Consent of the Attor- ney General and State Treasurer. Under date of the 27th inst., you suhmit the question whether a will may be taken from a safety deposit box in a bank, standing in the name of a decedent, without giving the notice mentioned in Section 9 of the Inherit- ance Tax Act of 1909. You state : **In reading the law today I see nothing in it that would prohibit us from allowing the heirs or the executor, if we know him, from opening in our pres- ence, the box, if they saw fit, to take from it the will/' In reply, will say that when a safety deposit box stands in the name of a deceased person, it is contemplated by Section 9 of the Inheritance Tax Act of 1909 that control, or partial control at least, of the cache, passes to the person or institution letting the box. That person or institution is prohibited from making a delivery or transfer of securities, deposits or other as- sets of a decedent, so under its possession or control, un- less the State Treasurer and Attorney-General consent thereto in writing ; and these State officers are authorized to examine the contents of such a box. This amounts to prohibiting that person or institution from permitting such securities, deposits or other assets to pass out of such control, as he or it shall have in the premises, with- out the notice or consent. A will is, of course, not an asset in any sense to be re- garded as included in the ^ * securities, deposits or other assets" with which this section of the act deals. It is a testamentary instrument bearing the evidence of the tes- tator's disposal of his property. 385 It is provided in paragraph 12 of chapter 148, Hurd's Revised Statutes, 1908, that any person or persons who have in possession a last will or testament of another for safe keeping or otherwise, shall immediately upon the death of the deceased deliver up the will to the County Court, under penalty for withholding the same. Paragraph 2, chapter 3, of the same revised statutes, makes it the duty of the person named as executor of a last will and testament to cause the will to be proved and recorded or to present the will if refusing to accept the executorship. Section 9 of the Inheritance Tax Act in no way inter- feres with a discharge of these duties when a will is en- closed in a safety deposit box standing in the name of ihe testator at his death. The will may be withdrawn from the box and its delivery and transfer to the Court of Probate, to be proved and recorded, is in no manner af- fected by Section 9. That section relates to the delivery or transfer of se- curities, deposits or other assets, and the burden is upon the person or institution which has control or possession in any way of that property, to see that the provisions of the Inheritance Tax Act are carried out. While the will may be, indeed must be, delivered with- out any notice or consent, as I view the law, yet no se- curities, deposits or other assets mentioned in the act may be delivered or transferred without such notice or con- sent. Opinion, January 28th, 1910. 550. "Widow's Award Is Taxable. If the widow's award, taken in connection with other property received in an estate, amounts to more than $20,000.00 all in excess of $20,000.00 is subject to a tax. 386 **Is the widow's award exempt from taxation un- der the Inheritance Tax Law ? ' ' While the Supreme Court of this State has never dis- cussed this precise question, it has impliedly approved the practice of taxing the widow's award. In the case of Billings v. People, 189 111. 422, the widow renounced the provisions made for her in the will and elected to take her dower and legal share under the stat- ute. The County Court appointed an appraiser, fixing the fair market value of the estate for the purpose of as- sessing an inheritance tax. Among other things, the widow's dower and award were assessed and a tax fixed upon the assessment. While the Supreme Court does not discuss the question of the right to levy an inheritance tax on the widow's award, it nevertheless approves the finding of the County Court and affirms the order fixing the tax. In view of this decision it is, therefore, the holding of this department that the widow's award is subject to the provisions of the Inheritance Tax Law and liable to an inheritance tax. Replying to yours of the 29th ultimo., will say that as a general proposition is is the holding of this department that the widow's award is subject to the inheritance tax. It is, therefore, my opinion that the award of five thou- sand dollars, to which you have referred, is to be con- sidered a part of the inheritance which the widow re- ceived in the estate you have referred to and that if the widow's award, together with the remainder of the de- cedent 's estate coming to the hands of the widow amounts to more than twenty thousand dollars, then, the excess so received by the widow over that amount must be taxed. Opinion to State's Attorney, September 2d, 1910. 387 551. Refund of Tax Erroneously Paid. Wliere inheritance tax has been paid and covered into the State Treasury, the Auditor of Public Accounts is not justified in drawing a warrant for such excess in the absence of an appropriation for that purpose. I acknowledge receipt of your favor of the 17th inst., enclosing a letter from the County Treasurer of Cook County, together with a certified copy of an order of the County Court of Cook County directing the County Treas- urer of said county to refund the sum of $31.59 to Clotilde Hotz and the sum of $31.59 to Maximilian Schmidt, er- roneously paid by said Clotilde Hotz and said Maximil- ian Schmidt on account of the inheritance tax. It appears from the correspondence and from the order that an inheritance tax was levied and assessed in the matter of the estate of Leonard Schmidt, deceased. It further appears that the tax, as levied and assessed by the County Court of Cook County was paid to the County Treasurer and was, by the County Treasurer, paid to the State Treasurer. After the payment of the tax to the State Treasurer it was discovered that certain real es- tate was erroneously appraised and assessed as the prop- erty of said decedent at the time of his death, while, as a matter of fact, said property was not subject to taxa- tion under the Inheritance Tax Law. On account of such erroneous appraisement and as- sessment, Clotilde Hotz and Maximilian Schmidt each paid the sum of $31.59. The question presented by the correspondence is, so far as it affects any official act to be performed by the Auditor of Public Accounts, as to whether or not you have any authority to draw a warrant on the State Treasurer for the restitution to the two claimants named 388 in the correspondence of the sum so found to have been paid erroneously by said claimants on account of the in- heritance tax. It may be conceded that the tax was erroneously levied and assessed. It may further be conceded that the tax was erroneously paid to the County Treasurer, and by him erroneously paid to the State Treasurer. In other words, it may be conceded that said claimants have a right to the refund of the amount so erroneously paid by them by reason of paragraph 375 of chapter 120, Kurd's Revised Statutes, 1909, the same being section 10 of the inheritance tax act of 1909, which provides : ^^When any amount of said tax shall have been paid erroneously to the State Treasurer, it shall be lawful for him, on satisfactory proof rendered to him by said County Treasurer of said erroneous pay- ments to refund and pay to the executor, adminis- trator or trustee, person or persons who have paid any such tax in error, the amount of such tax so paid, provided that all applications for the repay- ment of said tax shall be made within two years from the date of said payment. ' ' The money so paid by said claimants has been cov- ered into the State Treasury. It is a provision of our fundamental law that: **No money shall be drawn from the treasury ex- cept in pursuance of an appropriation made by law, and on presentation of a warrant issued by the Audi- tor thereon.'' (Section 17, Article IV of the Consti- tution.) It cannot be maintained, I think, that section 10 of the inheritance tax act of 1909, above quoted, makes any appropriation to pay amounts erroneously paid into the State treasury on account of inheritance tax act. The most that can be claimed under said section is, that the amounts so erroneously paid constitute valid 389 claims against the State, which may be paid on the war- rant of the Auditor of Public Accounts when the Legis- lature shall have made an appropriation for such pay- ment. The question then is, as to whether or not the Legis- lature in 1909 made an appropriation to pay the amount of taxes levied and assessed under the inheritance tax act of 1909 and erroneously paid into the State treasury. The only clause in any appropriation act which might be said in any way to bear upon this proposition is Clause 30 of Section 1 of the act to provide for the ordinary and contingent expenses of the State government, approved June 6, 1909, in force July 1, 1909 (Session Laws, 1909) (page 83), which reads as follows: ^^T'o the State Treasurer, such sums as may be necessary to refund the taxes on real estate sold or paid on error and for overpayment of collector's account under laws governing such cases, to be paid out of the proper funds. '* Upon a consideration of this clause of the appropria- tion act, it is my opinion that it does not relate to erro- neous payments made under the inheritance tax act but relates to payments made under the general revenue act. It is my opinion, therefore, that under the law as it now stands, you have no authority to issue a warrant on the State Treasurer for the payment of the two claims mentioned in the correspondence submitted by you. Said claims have, I think, a valid claim against the State, but such claim cannot be paid until the Legislature shall have made provision for their payment by the en- actment of an appropriation act. Opinion to State Auditor, May 20, 1910. 390 552. Partnership Assets in Foreign State When Oixrned by Deceased Resident of Illinois. The interest of a resident decedent in a partnership estate in a foreign estate should be taxed in this State under the inheritance tax law for its fair cash value at the time of death. *^A person died a resident of Illinois, who was a partner in a cattle ranch in another state ; is his in- terest in the cattle on such ranch subject to the in- heritance tax of Illinois ' ' ? Eeplying thereto, I would state that under Section 1 of the Inheritance Tax Act, all property which shall pass by will or by the intestate laws of this State from any person who may die seized or possessed of the same while a resident of this State at the time of his death shall be subject to an inheritance tax at the rates prescribed in the statute. I assume that the decedent died intestate. Under the law, the death of said decedent dissolved the partnership. The surviving partner or partners will proceed to wind up the partnership and will pay and discharge the part- nership by liabilities. After all the partnership liabilities are discharged, the assets will be divided among the sur- viving partners in proportion to their respective shares as fixed by the partnership agreement. If the partner- ship assets are personal property, then such personal property would pass, after discharging the debts and lia- bilities against it, in the foreign jurisdiction under the laws of the State of Illinois. That being the case, the interest of the decedent in the partnership estate should be taxed in this State under the Inheritance Tax Law for its fair cash value at the time of the death of the de- ceased partner. Opinion to Staters Attorney, March 26th, 1909. 391 CHAPTER XXX. Forms — Tax Law of 1895 as Amended in 1901 — Court of Claims' Decision on Eefund of Tax. 553. Form Composition Agreement. 553a. Petition for Appeal from County Judge's Order of Tax. 553b. Order Allowing Appeal from County Judge's Order to County Court. 554. Bond — Appeal to County Court. 555. Order of County Judge Ap- pointing Appraiser. 556. Oath of Appraiser. 557. Appraiser's Notice of Hear- ing. 558. Appraiser's Eeport. 559. Appraiser's Eeport — Schedule One. 560. Appraiser's Report — Schedule Two. 561. Appraiser's Report — Schedule Three. 562. Appraiser's Report — Schedule Four. Report — Sum- Report — Schedule 563. Appraiser's mary. 564. Appraiser's Five. 565. Appraiser's Report — Exhibit *' A. "—Certificate of Serv- ice — Process. 566. Appraiser's Report — Close of Report. 567. Order of Tax. 568. Order Fixing Tax — Distribu- tion. 569. Close of Order. 570. County Judge's Notice of Tax. 571. County Judge's Certificate of Mailing Notice to Person Taxed. 572. Inheritance Tax Law of 1895, as amended 1901. 573. Opinion of Court of Claims in Griffith ex. vs. State of Illi- nois. 553. Form Composition Agreement. State of Illinois, | CoTJifTY OF Cook. J ^®* In the Matter of the Estate J Composition Agreement under Section OF f 26 of the Inheritance Tax Law of JOHN JONES, Deceased. * Illinois, in force July 1st, A. D. 1909. Whereas, the said decedent, John Jones, died testate on September 15tli, A. D. 1907, a legal resident of the City of Chicago, County of Cook and State of Illinois, leaving him surviving, as his only heirs at law and next of kin, Mary Jones, his widow, and Margaret Smith, also known as Margaret Louise Smith, his granddaughter, the legal rela- tionship stated being evidenced by proof of heirship made by the Pro- bate Court of Cook County: that said Mary Jones was born on the day of , A. D , and is now living; that said Margaret Smith was born on the day of , A. D , and is now living; that there is no reasonable ground for a belief that either or both of them will decease prior to that expectancy stated in recognized tables of mortality to be their respective period of life; And whereas, said decedent left a last will and testament (no co- 392 docils), which was duly admitted to probate in the Probate Court of Cook County, Illinois, and Letters Testamentary thereon issued by said Court to Richard Green and Joseph Green, both of said City of Chicago, as Executors, who have since been discharged from further duty as Executors; And whereas, said Richard Green of Chicago, James Baldwin of Philadelphia, Pennsylvania, and Edward Webster of New York City, New York, were by said last will nominated Trustees of the residuary estate therein mentioned, and have accepted the trust so created by said will and are now acting as trustees thereunder; And whereas, Mary Jones, widow, has accepted the provisions of the will; and no legal contest has been instituted questioning or at- tacking the validity of said will; And whereas, inheritance tax proceedings in the matter of dece- dent's estate were regularly instituted by the County Judge of Cook County, Illinois, on, to-wit, the 15th day of November, A. D. 1907, by the appointment of an appraiser under the act to Tax Gifts, Legacies and Inheritances, etc., in force July 1st, A. D. 1895, and the amend- ments thereto; And whereas, said appraiser proceeded with his appraisement and made written report to said County Judge as by law provided, which said report was filed with the Clerk of the County Court of Cook County, Illinois, in appraisement case No, 88686; that on, to-wit, the 29th day of December, A. D. 1907, said County Judge entered an Order approving said report and fixing the tax chargeable to the trans- fers and successions then ascertainable, and further fixed the net value of all property appraisable by reason of the death of said John Jones, and of all property owned by decedent at death, in the sum of One Million Dollars ($1,000,000). That the findings and order of said County Judge were and are so far as material in this proceeding, as follows: Total net property owned by decedent at death, or appraisable by reason of his death. One Million Dollars ($1,000,000.00). (Net personal, $250,000.00, and Net Real Estate, $750,000.00.) Distribution for Taxation. Value of Succession. Exemption. Rate. Tax. Albert Brown, stranger in blood by paragraph c, article 2 of will.$25,000.00 None 5% $1,250.00 Susan Moore, niece by paragraph d, article 2 of will 36,000.00 $2,000.00 2% 680.00 Maurice Black, husband of a daughter of decedent, by arti- cle 8 of will 15,000.00 20,000.00 1% None Margaret Smith, age . . years, also known as Margaret Louise Smith, granddaughter. Life use of one-third of residuary estate which is limited by the fourth article of the will — present value 195,000.00 20,000.00 1% 1,750.00 Mary Jones, widow, age . . years ; life use of two-thirds of resid- uary estate as limited by the fourth article of the will — present value 245,000.00 20,000.00 1% 2,250.00 393 And whereas, said order of tax so entered by said County Judge further found, as follows: "That the residue of the estate of decedent after distribution of legacies, equals the sum of $924,000.00, to which is chargeable the life estates of the widow and granddaughter. That the remainder and re- mainders in said residuary estate are transferred contingently and con- ditionally and are not indefeasibly vested. It is therefore ordered that the tax on the succession to said residue, subject to the life estates thereinbefore described, and the remainder and remainders herein be and the same is hereby postponed, and it is ordered that the tax on said residue be imposed in the future according to law." And whereas, the fourth article (residuary clause) of said will is in words and figures as follows: (Set out provisions of will disclosing character of the limitation.) And whereas, said Trustees, Richard Green, James Baldwin and Edward Webster, trustees, above described, are all and each of them now desirous of settling the remaining claims of the People of the State of Illinois upon or in respect to the transfer of or succession to all the property described and referred to in article four of said will, to-wit, all the rest, residue, remainder and remainders in said estate, not taxed in the appraisement aforesaid, and are desirous of settling the remaining claims of said The People, etc., to any tax thereon, which is now chargeable and hereafter payable under the laws of the State of Illinois, by settling and compounding all such taxes upon terms which are just and equitable; and it is desired by said trustees, that the property constituting said trust estate, together with the right to receive, take and hold said property under and by the terms of said will, and the laws of the State of Illinois, be granted full and complete discharge on account of all liability for inheritance taxes by and upon the payment of a sum of money hereinafter fixed in this composition agreement in pursuance of the law in such case made and provided: Whereas, all life tenants are living at the time of the execution of this instrument, and Whereas, no estates or interests unappraised or untaxed in the appraisement proceeding have since indefeasibly vested nor have the beneficiaries become known or can they be identified. Now, therefore, in consideration of the foregoing, and by virtue of the powers and authority granted by the provisions of Section 26 of the Inheritance Tax Law in force July 1st, 1909: It is hereby agreed and settled upon, that all inheritance tax and taxes and interest thereon, on the succession or successions to, right to receive, take and hold all and every part and parcel of the property on which the tax was postponed by the County Judge's Order of Tax entered on said 29th day of December, A. D. 1907, be and the same is hereby determined, compounded, settled and adjusted at the total sum of Nine Thousand Six Hundred Eighty Dollars ($9,680.00). This composition and settlement being determined by subtracting the total present value of the life estates charged to the residuary es- tate, from the total value of the residuary estate, the difference or remainder (constituting the untaxed property) being assumed to be the subject of a transfer, by the exercise of the power created in the widow, to one ultimate taker in the lineal line of descent from her and taxing such succession at 2 per cent, without exemption, or dis- count for immediate payment. Which said sum of $9,680.00 it is mutually agreed shall be, and is 394 hereby, determined a just and equitable sum of money to be received by the State of Illinois, its oflScers and agents, in full payment, settle- ment and discharge of all inheritance or succession taxes and interest thereon, which are payable or which, but for this agreement, might at any time hereafter become due and payable to the State of Illinois, or its officers or agents in its behalf, under and by virtue of the laws thereof, upon or in respect to the inheritance or successions to the property or estate of the above named decedent, and upon the right to receive, take and hold any of said property under the terms and pro- visions of the will of said decedent, and under the powers of appoint- ment in said will created, which is hereinabove referred to as compro- mised, and which said successions and taxes and interest thereon have become fully settled and compounded and adjusted by the execution of this compromise agreement upon the payment of the said sum of $9,- 680.00 to the County Treasurer of Cook County, Illinois, as provided by Section 26 of the Act to Tax Gifts, Legacies, Inheritances, Transfers, Appointments and Interests in Certain Cases, etc., in force July 1st, A. D. 1909; And the said State Treasurer of Illinois, by and with the consent of the said Attorney General of said State, expressed in writing, hereby grants full and complete discharge to said trustees upon the payment by them to the County Treasurer of Cook County, Illinois, of the amount of $9,680.00. In witness whereof, the said Richard Green, James Baldwin and Edward Webster, acting as and in their capacity of trustees under the will of John Jones, deceased, and the Hon , as State Treasurer of Illinois, by and with the consent of the Hon. , as Attorney General of the State of Illinois, who evidences his consent hereto in writing by joining in the execution hereof, have signed and acknowledged the execution of these presents in triplicate, this day of , A. D. 1912. (L.S.) (L. s.) (L.S.) (L.8.) As State Treasurer of Illinois. Approved this day of A. D. 1911. Attorney General of the State of Illinois. Recommended by Inheritance Tax Attorney of Cook County, Illinois. 395 553a. Petition for Appeal from County Judge's Order of Tax. In the County Cotjet of County. State of Illinois, County of ^^* 1 In the Mattee of the Estate OF ^ No. JOHN JONES, Deceased. PETITION PRAYING APPEAL: AND ORDER. To the Honorable , Judge of the County Court of County. Your petitioners, John Doe and Richard Roe, executors of the last will and testament of John Jones, deceased, respectfully represent that Your Honor did, as County Judge, on December , A. D , enter an order of tax and approve the Appraiser's report in the ap- praisement of the estate of said decedent, John Jones (appraisement No. 7537), which said order identified and determined the relationships of the beneficiaries taking by the will and codicils of said decedent, and of all persons, corporations and transferees taking property or interests appraisable by reason of the death of said decedent; and determined the values of the successions of and transfers and gifts to, said bene- ficiaries and persons, corporations and transferees, and the tax on the respective successions, transfers and gifts thereof, and that said order was entered on the recommendation of said Appraiser. Your petitioners further represent that they are dissatisfied with the recommendations of the Appraiser, and are dissatisfied with all and each of the findings contained in said Order of Tax, above referred to. Your petitioners insist that Your Hoonr, as County Judge, erred in said Order of Tax, in determining the relationships of the various bene- ficiaries and persons. And erred in determining the value of the successions, transfers and gifts of each and all of the beneficiaries and persons. And erred in determining the statutory exemption of each and all beneficiaries and persons. And erred in fixing the amount of tax on each succession, transfer and gift and the rate of tax thereon. And further, that Your Honor, as County Judge, erred in approving the report of the Appraiser; and erred in approving the values of the property appraisable by reason of the death of John Jones, as recom- mended by the Appraiser. (Set forth in general terms the principal objections.) Your petitioner states that the tax fixed in the order appealed from has been paid (or not paid, as the case may be). Your petitioners, therefore, pray that an appeal be allowed to the County Court of County, from said Order of Tax, pursuant to the statute in such case made and provided. Executors of the last will and testament of John Jones, Deceased. (Or individual, as the case may be.) 396 553b. Order Allowing Appeal from County Judge's Order to County Court. In the County Coubt of County. State of Illinois, i County of I ^^' In the Matter of the Estate ] OF > No JOHN JONES, Deceased. ' ORDER. On the petition of John Doe and Richard Roe, executors of the estate of said decedent, John Jones, an appeal is hereby allowed to the County Court of County, Illinois, from the County Judge's Order of Tax entered December , A. D , in appraisement No , on filing with the Clerk of this Court on or before the day of , a good and sufficient bond in the sum of dollars, to be approved by the Court on or before the date last above named. Judge of the County Court of County. Entered (Date.) 554. Bond — Appeal to County Court. State of Illinois, "■} County of Cook. ^ ' In the County Court of Cook County, Illinois. In the Matter of the Estate OF JOHN DOE, Deceased. Know all men by these presents, that of Chicago, Illinois, Executor of the Last Will and Testament of John Doe, deceased, as principal, and of New York, a surety company duly authorized to do business in Illi- nois, and execute, sustain, assume and pay liabilities or penalties as a bonding or surety company, with an officer and representative at Chi- cago, Illinois, as surety, are held and firmly bound to the People of the State of Illinois, in the penal sum of Twenty Thousand Dollars, for the payment of which, well and truly to be made, we and each of us do bind ourselves, our heirs, executors, administrators, successors and assigns, jointly, severally and firmly by these presents. Signed, sealed and delivered this day of , A. D The condition of this obligation is such that whereas the Honorable John E. Owens, as County Judge of said Cook County, did, on the day of , A. D , enter an order on the report of his Inheritance Tax Appraiser in the above named estate approving the report of said Appraiser in all its findings (or except as 397 otherwise provided in said order), and fixing the amount, value, dis- tribution and tax in said estate. And whereas the tax so fixed and determined by said County Judge's order has been paid to the County Treasurer of County. (Or — And whereas the tax so fixed and determined 'by said County Judge's order has not been paid.) And whereas the said executor (or beneficiary, etc.) has prayed for and obtained an appeal from the appraisement and the order fixing tax aforesaid to the County Court of Cook County, Illinois. Now, THEREFORE, if the Said principal shall prosecute this appeal with effect, and moreover pay any and all taxes (if any) determined to be due. The People of the State of Illinois by reason of the death of said John Doe, deceased, on the parties, rights, interests, successions and transfers appraisable by reason of the death of said decedent (or if beneficiary appeals — pay all taxes deter- mined to be chargeable against him), and pay the amount of the costs that may be rendered against him in this appeal, then this obligation to be void; otherwise to remain in full force and virtue. (seal.) Executor of the Last Will and Testament of John Doe, Deceased. Surety Company, By C. Bratjne, (seal.) Resident Vice-President. O. R. Braune, (seal.) Resident Assistant Secretary. Approved this day of , A. D County Judge. 555. Order Appointing Appraiser. State of Illinois, )■ Cook County ''*® Before the Hon. John E. Owens, County Judge of Cook County. In the Matter of the Estate . Inheritance Tax of > Appraisement. , Deceased. ' No It appearing that, by reason of the death of said deceased, there is property appraisable under the provisions of the statutes of this State relating to the taxation of gifts, legacies, inheritances, transfers, appointments and interests in certain cases; now, in pursuance of said statutes in such case made and provided: It is hereby ordered, That of the of , in said county, be and he is hereby appointed appraiser herein for the purpose of fixing the fair market value of the property appraisable by reason of the death of said , alleged to have died a resident of the County of , State of and that said appraiser, before entering upon the duties of his ofllce, take and 398 file on oath with the clerk of said court to faithfully and fairly perform the duties of such appraiser according to law. It is fuethee oedeeed, That said appraiser give ten days' notice in writing, by mail postpaid, to the County Treasurer of Cook County, Illinois, the Inheritance Tax Attorney for said Cook County and all other parties in interest, and that said appraiser make such investiga- tion as is proper and necessary in the premises. It is fuethee oedeeed, That said appraiser make a just and true report of his proceedings, and return same to the County Judge of said Cook County; together with the evidence, documentary and oral, re- ceived by him; and statements taken germane to the subject-matter of said appraisement; and that he include in his said report, in addi- tion to his findings of value, such recommendations relative to deduce tions, distribution for taxation or exemption, and such other facts and suggestions as are, in his judgment, material in the premises. It is fuethee oedeeed, That said appraiser prepare and present to said County Judge at the time of the return of his said report, a draft order fixing tax based upon his report, showing the clear cash value of all estates, annuities, life estates, estates for term of years, re- mainders, transfers, gifts, appointments and other interests taxable or exempt, and at what rate the same appear to be taxable under the law of this State, and the tax assessable. And it is fuethee oedeeed, That, for the purpose of such appraisal, said appraiser is hereby authorized to issue subpoenas for and to compel the attendance of witnesses before him, and to take the evidence of such witnesses under oath concerning all matters germane to said appraisement. And it is fuethee oedeeed, That said appraiser file with his said re- port a statement, under oath, showing the number of days actually and necessarily spent in making such appraisal, and his actual and necessary traveling expenses, together with the fees of said witnesses. County Judge. 556. Oath of Appraiser. State of Illinois, County of Cook. [ss. Before the Hon. John E. Owens, County Judge of Cook County. In the Mattee of the Estate OF ]■ Docket No. , Deceased. :i I , appointed appraiser by the order of the County Judge of the County of Cook, do hereby swear that I will faithfully and fairly perform the duties of such appraiser accord- ing to law, and make a just and true report of my proceedings accord- ing to the best of my understanding. Subscribed and sworn to before me, this day of 191.... 399 557. Appraiser's Notice of Hearing. I If THE MATTEB of the ESTATE (Docket No. To all persons interested in said estate — Having been appointed Appraiser in the above entitled matter, by the County Judge of the County of Cook, State of Illinois, I hereby notify you that on the day of , 190 , at o'clock in the noon of that day, at in the City of Chicago, 111., I will proceed to appraise and fix the value of all property appraisable by reason of the death of the decedent, under and pursuant to the Inheritance Tax Laws of Illinois. Dated this day of , 19 Appraiser. 558. Appraiser's Report. [S, ] [ss. State of Illinois, County of Cook Before the Hon ., County Judge of Cook County. In the Matter of the Estate ^ Inheeitance Tax of I Appraisement. Deceased. ) No To the HonoraMe , County Judge. I, the undersigned, who was on the day of , 19.,.., appointed appraiser to conduct an appraisement under and pursuant to "an Act to tax gifts, legacies, inheritances, transfers, ap- pointments and interests in certain cases," etc., approved June 14, 1909, in force July 1, 1909, and to fix the fair market value of the property appraisable by reason of the death of said decedent, respect- fully report as follows: First. Forthwith after said appointment I proceeded to investi- gate all property appraisable as aforesaid, and gave notice by mail to all parties in interest in said appraisement of the time and place at which I would conduct said proceedings. Service of said notice is evidenced by an affidavit marked Exhibit "A" hereto attached and made a part hereof. Second. At the time and place in said notice stated, to-wit, at in the City of Chicago, Illinois, at the hour of m. on the day of , 19 , and thereafter from time to time, pursuant to adjournments regularly had, I proceeded to the appraise- ment of said property, and to take evidence in writing under oath of all witnesses produced concerning the subject-matter of said appraise- ment, which depositions are hereto attached and made a part of this report, together with all documentary evidence produced; and together with a statement of all independent investigations made by me; and 400 all general information germane to the subject-matter of said appraise- ment: all hereto attached. And from said evidence and investigation I find that the fair market value of said property appraisable as aforesaid to be as hereinafter stated. I also report, as shown by the documentary and other evidence herein contained, the various successions, estates, annuities, gifts, transfers, appointments, interests, etc., subject to taxation or exemp- tion under the laws of this State in such case made and provided, and recommend their taxation and exemption according to the distribu- tion and assessment hereinafter made. 559. Appraiser's Report — Schedule I. Estate of , Deceased. Date of decedent's death Residence of decedent Testate Intestate Record of will, Book Page Date of Letters Names, titles and addresses of legal representatives, etc. Names of persons appearing at appraisement in behalf of estate Names of persons appearing in behalf of State of Illinois 560. Appraiser's Report — Schedule II. INVENTORY. PROPERTY PASSING BY WILL OR INTESTATE LAWS. Property. Items. Fair Market Value. 401 561. Appraiser's Report — Schedule III. TRANSFERS, GIFTS, APPOINTMENTS, ETC. Property. Fair Market Value. 562. Appraiser's Report— Schedule IV. Estates, Beneficiaries, Appraised Fair Taxable and Relationship Market Cash Tax Rec- Description of Property. Value. Exemption. Value. Rate, ommended. 563. Appraiser's Report — Summary. Pebsonal Pboperty. Real Estate. Schedule II, Page 1. Schedule II, Page 1. Schedule II, Page 2. ... Schedule II, Page 2. Schedule II, Page 3. Schedule II, Page 3. Schedule II, Page 4. ... Schedule II, Page 4. Schedule II, Page 5. Schedule II, Page 5. Schedule II, Page 6. Schedule II, Page 6. Schedule III, Page . ... Schedule III Total Personal Property . . Total Real Estate $ . Total Personal Property , Deductions — Debts not secured on Real Estate Court Costs , Executor's or Administrator's Fees Attorney's Fees Total Costs of Administration . , Total Deductions from Personal Property Excess of Debts over Personalty . Net Personal Property Total Real Estate Incumbrances on Real Estate . . . Excess of Debts over Personalty. Total Deductions from Real Es- tate Net Value of Real Estate Clear Fair Market Value of Prop- erty found appraisable by reason of Decedent's Death 402 564. Appraiser's Report — Schedule V. SPECIAL FINDINGS AND CONCLUSIONS. 565. Exhibit "A." Certificate of Service of Process. State of Illinois, 1 County of Cook. J ' Before the Hon , County Judge of CooJc County. In the Mattes of the Estate ^ Inhebitance Tax OF V Appraisement. , Deceased. ) No being duly sworn, doth depose and say that he is the same person who was heretofore appointed appraiser in the above entitled estate by the County Judge of Cook County, Illinois; that on the day of , 19 , he duly gave notice by mail, postpaid, to the Treasurer of said Cook County, to the Inheritance Tax Attorney for said Cook County, and to the following named persons, viz.: the same being the only parties in interest in said appraisement, that he would, as such appraiser, on the day of 19 , at o'clock in the noon of that day, at in the City of Chicago, Illinois, proceed to conduct an appraisement in said estate, under and pursuant to the statutes of the State of Illinois relating to the taxation of gifts, legacies, inheritances, trans- fers, appointments and interests in certain cases. Appraiser. Subscribed and sworn to before me this , day of , A. D. 19 Notary Pu'blic in and for Cook County, Illinois. 566. Appraiser's Report. The foregoing, including the several schedules herein, together with Exhibits "A" and "B" hereto attached, constitutes a full and correct report of said appraisement as made by me pursuant to said order of appraisement. Respectfully submitted this day of , A. D. 19 Appraiser. (Must be sworn to before Clerk or Notary.) State of Illinois, Cook County. 403 [ss. being duly sworn, says that the foregoing report by him subscribed is a true and correct report of the appraisement made by him in the matter of said estate, and that he has faithfully and fairly performed the duties of such appraiser, according to the best of his understanding. Subscribed and sworn to before me this day of , A. D. 19 Notary Pul)Uc in and for Cook County, Illinois. 567. State of Illinois,! County of Cook, y^' Before the Hon , County Judge of Cook County. County Judge's Order of Tax. In the Matter of the Estate ) of f ORDER. , Deceased. ' It appearing from the report of , the Appraiser heretofore duly appointed to conduct an appraisement of all property appraisable by reason of the death of said decedent, under and pursuant to the statutes of this State relating to the taxation of gifts, legacies, inheritances, transfers, appointments and interests, this day presented and read : that said decedent died on the day of , and that due notice of the time and place of said appraisement was duly given to all parties in interest in said appraisement; and it further appearing that the said Appraiser has appraised, at its fair market value, all property exhibited or made known to the Appraiser. It is, therefobe, ordered, That the said report of appraisement, together with the recommendations for taxation and exemption made by said Appraiser, be and the same is hereby approved, and that the said report, together with the depositions of witnesses, exhibits, doc- umentary evidence, statements and findings of said Appraiser, be forthwith filed in the office of the Clerk of the County Court of Cook County, and It is further ordered, Upon said report that the cash value of the several successions, estates, annuities, gifts, transfers, appointments. Interests, etc., subject to taxation or exemption by reason of the death of said decedent under the laws of this State and the tax to which the same are severally liable, be and the same are hereby assessed and fixed as follows: 568. Order of Tax— Gont. Estates, Beneficiaries, Appraised Taxable Relationship and Fair Market Statutory Cash Tax Description of Property. Value. Exemption. Value. Rate. Fixed. 404 569. Order of Tax—Gont. It is fubther ordered, That the appraisement returned by the Ap- praiser in his said report, together with the cash value of the several successions, estates, annuities, gifts, transfers, appointments, interests, etc., subject to taxation or exemption by reason of the death of said decedent, and the tax thereon as assessed and fixed herein be entered in the public inheritance tax records of this county. County Judge. 570. County Judge's Notice of Tax. [8,1 fss. State of Illinois County of Cook Before the County Judge. In the Matter of the Estate ^ of [• No , Deceased. ) You are hereby notified that I have, by order, made the day of , 19 , assessed and fixed the cash value of such successions, interests, estates, legacies, transfers, gifts and prop- erty as you and each of you are entitled to receive by reason of the death of said decedent and the amount of tax to which the same is liable, pursuant to order of tax entered herein under an act to tax gifts, legacies, inheritances, transfers and interests in certain cases, and to provide for the collection of the same, approved June 14, 1909, in force July 1, 1909, as follows, viz.: Beneficiary. Cash Value. Tax. You will please take notice that interest is also charged on this tax from date of death of decedent. County Judge. To 405 571. County Judge's Certificate of Mailing Notice to Persons Taxed. State of Illinois, County of Cook is,l ^ss. \ No. In the Matteb of the Estate f Certificate of Mailing ) Notice of Tax Fixed. I, Judge of the County of Cook, in the State of Illinois, do hereby certify that on the day of , A. D. 191. . . ., I sent by mail a notice, a copy of which is hereto attached, to the following persons, being all the parties known to be interested in all estates, annuities and life estates, or terms of years growing out of said estate, and addressed as follows: One copy to One copy to One copy to One copy to One copy to One copy to One copy to One copy to One copy to One copy to One copy to One copy to One copy to One copy to County Judge. 572. Inheritance Law of 1895 as Amended 1901. Tax on Gifts, Legacies and Inheritances. 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, All property real, personal and mixed, which shall pass by will or by the intestate laws of this State from any person who may die seized or possessed of the same while a resident of this State, or, if decedent was not a resident of this State at the time of his death, which property or any part thereof shall be within this State or any interest therein or income therefrom, which shall be transferred by deed, grant, sale or gift made in contemplation of the 406 death of the grantor or bargainor or intended to take effect, in possession or enjoyment after such death, to any person or persons or to any body politic or corporate in trust or otherwise, or by reason whereof any person or body politic or corporate shall become beneficially en- titled in possession or expectation to any property or in- come thereof, shall be and is subject to a tax at the rate hereinafter specified to be paid to the treasurer of the proper county, for the use of the State; and all heirs, legatees and devisees, administrators, executors and trus- tees shall be liable for any and all such taxes until the same shall have been paid as hereinafter directed. When the beneficial interests to any property or income there- from shall pass to or for the use of any father, mother, husband, wife, child, brother, sister, wife or widow of the son or the husband of the daughter or any child or chil- dren adopted as such in conformity with the laws of the State of Illinois or to any person to whom the deceased, for not less than ten years prior to death, stood in the acknowledged relation of a parent, or to any lineal de- scendant born in lawful wedlock; in every such case the rate of tax shall be one dollar on every hundred dollars of the clear market value of such property received by each person and at and after the same rate for every less amount, provided that any estate which may be val- ued at a less sum than twenty thousand dollars shall not be subject to any such duty or taxes; and the tax is to be levied in above cases only upon the excess of twenty thousand dollars received by each person. When the beneficial interests to any property or income there- from shall pass to or for the use of any uncle, aunt, niece, nephew or any lineal descendant of the same, in every such case the rate of such tax shall be two dollars on every one hundred dollars of the clear mar- 407 ket value of sucli property received by each per- son on the excess of two thousand dollars so received by each person. In all other cases the rate shall be as fol- lows: On each and every hundred dollars of the clear market value of all property and at the same rate for any less amount; on all estates of ten thousand dollars and less, three dollars; on all estates of over ten thousand dollars and not exceeding twenty thousand dollars, four dollars, on all estates over twenty thousand dollars and not exceeding fifty thousand dollars, five dollars; and on all estates over fifty thousand dollars, six dollars: Provided That an estate in the above case which may be valued at a less sum than five hundred dollars shall not be subject to any duty or tax. 2. When any person shall bequeath or devise any property or interest therein or income therefrom to mother, father, husband, wife, brother and sister, the widow of the son or a lineal descendant during the life or for a term of years or remainder to the collateral heir of the decedent, or to the stranger in blood or to the body politic or corporate at their decease, or on the ex- piration of such term, the said life estate or estates for a term of years shall not be subject to any tax and the property so passing shall be appraised immediately after the death at what was the fair market value thereof at the time of the death of the decedent in the manner here- inafter provided, and after deducting therefrom the value of said life estate, or term of years, the tax transcribed by this act on the remainder shall be immediately due and payable to the treasurer of the proper county, and, together with the interests thereon, shall be and remain a lien on said property until the same is paid : Provided, that the person or persons or body politic or corporate 408 beneficially interested in the property chargeable with said tax elect not to pay the same until they shall come in the actual possession or enjoyment of such property, or, in that case said person or persons or body politic or corporate shall give a bond to the People of the State of Illinois in the penalty three times the amount of the tax arising upon such estate with such sureties as the County Judge may approve, conditioned for the pay- ment of the said tax and interest thereon at such time or period as they or their representatives may come into the actual possession or enjoyment of said property; which bond shall be filed in the office of the County Clerk of the proper county: Provided further, that such per- son shall make a full, verified return of said property to said County Judge, and file the same in his office within one year from the death of the decedent, and within that period enter into such securities and renew the same for ^Ye years. 2|. When the beneficial interests of any property or income therefrom shall pass to or for the use of any hos- pital, religious, educational, bible, missionary, tract, sci- entific, benevolent or charitable purpose, or to any trus- tee, bishop or minister of any church or religious denomi- nation, held and used exclusively for the religious, edu- cational or charitable uses and purposes of such church or religious denomination, institution or corporation, by grant, gift, bequest or otherwise, the same shall not be subject to any such duty or tax, but this provision shall not apply to any corporation which has the right to make dividends or distribute profits or assets among its mem- bers. (By Amendment 1901.) 3. All taxes imposed by this act, unless otherwise herein provided for, shall be due and payable at the death 409 of the decedent and interest at the rate of six per cent, per annum shall be charged and collected thereon for such time as said taxes is not paid: Provided, that if said tax is paid within six months from the accruing thereof, interest shall not be charged or collected there- on, but a discount of five per cent, shall be allowed and deducted from said tax, and in all cases where the ex- ecutors, administrators, or trustees do not pay such tax within one year from the death of the decedent, they shall be required to give a bond in the form and to the effect prescribed in Section 2 of this act for the payment of said tax, together with interest. 4. Any administrator, executor or trustee having any charge or trust in legacies or property for distribution subject to the said tax shall deduct the tax therefrom, or if the legacy or property be not money he shall collect a tax thereon upon the appraised value thereof from the legatee or person entitled to such property, and he shall not deliver or be compelled to deliver any specific legacy or property subject to tax to any person until he shall have collected the tax thereon; and whenever any such legacy shall be charged upon or payable out of real estate the heir or devisee before paying the same shall deduct said tax therefrom, and pay the same to the ex- ecutor, administrator or trustee^ and the same shall re- main a charge on such real estate until paid, and the pay- ment thereof shall be enforced by the excutor, adminis- trator or trustee in the same manner that the said pay- ment of said legacies might be enforced, if, however, such legacy be given in money to any person for a limited period, he shall retain the tax upon the whole amount, but if it be not in money he shall make application to the court having jurisdiction of his accounts, to make an ap- 410 portionment if the case requires it of the sum to be paid into his hands by such legatees, and for such further order relative thereof as the case may require. 5. All executors, administrators and trustees shall have full power to sell so much of the property of the decedent as will enable them to pay said tax, in the same manner as they may be enabled to do by law for the pay- ment of duties of their testators and intestates, and the amount of said tax shall be paid as hereinafter directed. 6. Every sum of money retained by any executor, ad- ministrator or trustee, or paid into his hands for any tax on any property, shall be paid by him within thirty days thereafter to the treasurer of the proper county, and the said treasurer or treasurers shall give, and every executor, administrator or trustee shall take, duplicate receipts from him of said payments, one of which re- ceipts he shall immediately send to the State Treasurer, whose duty it shall be to charge the treasurer so receiv- ing the tax with the amount thereof, and shall seal said receipt with the seal of his office and countersign the same and return it to the executor, administrator or trustee, whereupon it shall be a proper voucher in the settlement of his accounts; but the executor, adminis- trator or trustee shall not be entitled to credit in his ac- counts or be discharged from liability for such tax un- less he shall purchase a receipt so sealed and counter- signed by the treasurer and a copy thereof certified by him. 7. Whenever any of the real estate of which any deced- ent may die seized shall pass to any body politic or cor- porate, or to any person or persons, or in trust for them, or some of them, it shall be the duty of the executor, ad- ministrator or trustee of such decedent to give informa- tion thereof in writing to the treasurer of the county 411 where said real estate is situated, within six months after they undertake the execution of their expected duties, or if the fact be not known to them within that period, then within one month after the same shall have come to their knowledge. 8. Whenever debts shall be proved against the estate of the decedent after distribution of legacies from which the inheritant (inheritance) tax has been deducted in compliance with this act, and the legatee is required to refund any portion of the legacy, a proportion of the said tax shall be repaid to him by the executor or adminis- trator if the said tax has not been paid into the state or county treasury, or by the county treasurer if it has been so paid. 9. Whenever any foreign executor or administrator shall assign or transfer any stocks or loans in this State standing in the name of decedent or in trust for a de- cedent, which shall be liable to the said tax, such tax shall be paid to the treasury or treasurer of the proper county on the transfer thereof, otherwise the corpora- tion forming such transfer shall become liable to pay such taxes, provided that such corporation has knowl- edge before such transfer that said stocks or loans are liable to such taxes. 10. When any amount of said tax shall have been paid erroneously to the State treasury, it shall be lawful for him on satisfactory proof rendered to him by said county treasurer of said erroneous payments to refund and pay to the executor, administrator or trustee person or persons who have paid any such tax in error the amount of such tax so paid, provided that all applications for the repayment of said tax shall be made within two years from the date of said payment. 11. In order to fix the value of property of persons 412 whose estate shall be subject to the payment of said tax, the County Judge, on application of any interested party, or upon his own motion, shall appoint some competent person as appraiser as often as or whenever occasion may require, whose duty it shall be forthwith to give such notice by mail, to all persons known to have or claim an interest in such property, and to such persons as the County Judge may, by order direct, of the time and place he will appraise such property, and at such time and place to appraise the same at a fair market value, and for that purpose the appraiser is authorized, by leave of the County Judge, to use subpoenas for and to compel the attendance of witnesses before him, and to take the evi- dence of such witnesses under oath concerning such prop- erty and the value thereof, and he shall make a report thereof and of such value in writing, to said County Judge, with the depositions of the witnesses examined and such other facts in relation thereto and to said mat- ters as said County Judge may, by order, require to be filed in the office of the clerk of said county court, and from this report the said County Judge shall forthwith assess and ^ the then cash value of all estates, annuities and life estates or terms of years growing out of said estate, and the tax to which the same is liable, and shall immediately give notice by mail to all parties known to be interested therein. Any person or persons dissatisfied with the appraisement or assessment may appeal there- from to the County Court of the proper county within sixty days after the making and filing of such appraise- ment or assessment on paying or giving security satis- factory to the County Judge to pay all costs, together with whatever taxes shall be fixed by said court. The said Appraiser shall be paid by the county treasurer out of any funds he may have in his hands on account of the 413 inheritance tax, as by law provided on the certificate of the County Judge, such compensation as such judge may deem just for said appraiser's services as such appraiser, not to exceed ten dollars per day for each day actually and necessarily employed in said appraisement, together with his actual and necessary traveling expenses and dis- bursements, including such witness fees paid by him. 11|^. The fees of the clerk of the comity court in in- heritance tax matters in the respective counties of this state, as classified in the act concerning fees and salaries, shall be as follows : In counties of the first and second class, for services in all proceedings in each estate before the county judge, the clerk shall receive a fee of five dollars. In all such proceedings in counties of the third class, the clerk shall receive a fee of ten dollars. Such fees shall be paid by the county treasurer, on the certificate of the county judge, out of any money in his hands, on account of said tax. In counties of the third class, the Attorney General of (the) State may appoint an attorney, who shall be known as the ^inheritance tax attorney'', and whose salary shall be not to exceed three thousand dollars per year, paya- ble monthly out of the state treasury upon warrants drawn by the auditor of public accounts, on vouchers ap- proved by the Attorney General. In Counties of the third class, the clerk of the county court may appoint a clerk in the office of the clerk of said court, to be known as the * inheritance tax clerk", whose compensation shall be fixed by the County Judge, not to exceed fifteen hun- dred dollars per year, and not to exceed the fee earned in said office in inheritance tax matters, the surplus of such fees over said compensation so fixed to be turned 414 into the county treasury. In addition to the above, the clerk of the county court shall be entitled, in all suits brought for the collection of delinquent inheritance tax, and all contested inheritance tax cases appealed from the county judge to the county court, and in all appeals from the county court to the supreme court, the same fees as are now, or which may hereafter be, allowed by law in suits at law, or in the matter of appeals at law, to or from the county court, which fees shall be taxed as costs and paid as in other cases at law; and in all cases arising under this act, including certified copies of documents or records in his office, for which no specific fees are provided, the clerk of the county court shall charge against and collect, from the person applying for, or entitled to such services, or certified copies, the same fees as are now, or which may hereafter be, allowed for similar services or certified copies in other cases in said court, and for recording inheritance tax receipts required to be recorded in his office, he shall receive the same fees which now are, or hereafter may be allowed by law to the recorder of deeds for recording similar instruments. (By Amendment 1901.) 12. Any Appraiser appointed by this act who shall take any fee or reward from any executor, administrator, trustee, legatee, next of kin or heir of any decedent, or from any other person liable to pay said tax or any por- tion thereof, shall be guilty of a misdemeanor, and upon conviction in any court having jurisdiction of misde- meanors he shall be fined not less than two hundred and fifty dollars nor more than ^ve hundred dollars and im- prisoned not exceeding ninety days; and in addition thereto the County Judge shall dismiss him from such service. 415 13. The County Court in the county in which the real property is situated of the decedent who was not a resi- dent of the State or in the county of which the deceased was a resident at the time of his death, shall have juris- diction to hear and determine all questions in relation to the tax arising under the provisions of this act, and the county court first acquiring jurisdiction hereunder shall retain the same to the exclusion of every other. 14. If it shall appear to the county court that any tax accruing under this act has not been paid according to law, it shall issue a summons summoning the persons in- terested in the property liable to the tax to appear before the court on a day certain not more than three months after the date of such summons, to show cause why said tax should not be paid. The process practice and plead- ings, and the hearing and determination thereof, and the judgment in said court in such cases shall be the same as those now provided or which may hereafter be pro- vided in probate cases in the county courts in this State and the fees and costs in such cases shall be the same as in probate cases in the county courts of this state. 15. Whenever the treasurer of any county shall have reason to believe that any tax is due and unpaid under this act, after the refusal or neglect of the person inter- ested in the property liable to pay said tax to pay the same, he shall notify the state's attorney of the proper county, in writing, of such refusal to pay said tax and the state 's attorney so notified, if he has proper cause to believe a tax is due and unpaid shall prosecute the pro- ceeding in the county court in the proper county as pro- vided in Section 14 of this Act for the enforcement and collection of such tax, and in such case said court shall allow as costs in the said case such fees to said attorney as he may deem reasonable. 416 16. The County Judge and county clerk of each county shall, every three months, make a statement in writing to the county treasurer of the county of the property from which or the party from whom he has reason to be- lieve a tax under this act is due and unpaid. 17. Whenever the County Judge of any county shall certify that there was probable cause for issuing a sum- mons and taking the proceedings specified in section fourteen of this act the State Treasurer shall pay or al- low to the treasury of any county all expenses incurred for service of summons and his other lawful disburse- ments that has not otherwise been paid. 18. The Treasurer of the State shall furnish to each county judge a book in which he shall enter the returns made by appraisers, the cash value of annuities, life es- tates and terms of years and other property fixed by him, and the tax assessed thereon and the amounts of any receipts for payments thereof filed with him, which books shall be kept in the ofiice of the county judge as a public record. 19. The Treasurer of each county shall collect and pay the State Treasurer all taxes that may be due and payable under this act, who shall give him a receipt therefor, of which collection and payment he shall make a report under oath to the Auditor of Public Accounts on the first Monday in March and September of each year, stating for what estate paid and in such form and con- taining such particulars as the Auditor may prescribe; and for all such taxes collected by him and not paid to the State Treasurer by the first day of October and April of each year, he shall pay interest at the rate of ten per cent per annum. 20. The treasurer of each county shall be allowed to retain two per cent on all taxes paid and accounted for 417 by him under this act in full for his services in collecting and paying the same in addition to his salary or fees now allowed by law. 21. Any person or body politic or corporate shall, upon the payment of the sum of fifty cents, be entitled to a receipt from the county treasurer of any county or the copy of the receipt at his option that may have been given by said treasurer for the payment of any tax under this act to be sealed with the seal of his office, which re- ceipt shall designate on what real property, if any, of which any deceased may have died seized, said tax has been paid and by whom paid, and whether or not it is in full of said tax and said receipt may be recorded in the clerk's office of said county in which the property may be situated in the book to be kept by said clerk for such purpose. 21^. When any person interested in any property in this state, which shall pass by will or the intestate laws of this state, shall deem the same not subject to any tax under this act, he may file his petition in the county court of the proper county to determine whether said property is subject to the tax herein provided, in which petition the county treasurer and all persons known to have or claim any interest in said property shall be made par- ties. The County Court may hear the said cause upon the relation of the parties and the testimony of wit- nesses, and evidence produced in open court, and, if the court shall find said property is not subject to any tax, as herein provided, the court shall, by order, so deter- naine; but if it shall appear that said property, or any part thereof, is subject to any such tax, the same shall be appraised and taxed as in other cases. An adjudi- cation by the county court, as herein provided, shall be vconclusive as to the lien of the tax herein provided upon 418 said property, subject to appeal to the supreme court of the state by the county treasurer, or Attorney General of the State, in behalf of the people, or by any party having an interest in said property. The fees and costs in all cases arising under this section shall be the same as are now, or may hereafter be, allowed by law in cases at law in the county court. (By Amendment 1901.) 22. The lien of the collateral inheritance tax shall con- tinue until the said tax is settled and satisfied : Provided, that said lien shall be limited to the property chargeable therewith: and, provided further, that all inheritance taxes shall be sued for within ^ve years after they are due and legally demandable, otherwise they shall be pre- sumed to be paid and cease to be a lien as against any purchasers of real estate. 23. All laws or parts of laws inconsistent herewith be and the same are hereby repealed. 573. ^^In the Couet or Claims of the State of Illinois. October Term, A. D. 1910. Jennie Sanfoed Geiffith, Executrix of the Estate of Merritt E. Sanford, Deceased, vs. State of Illinois. The evidence in this cause shows that Merritt E. San- ford, a resident of Eome, New York, died in Chicago- October 29, 1906. His will was admitted to probate in Cook County on the petition of his sister, Jennie San- ford Griffith, to whom letters testamentary were issued as executrix, November 27th, 1906. Sanford died seized of real estate in Chicago valued at $20,000. He was also* 419 found to be the possessor of certain securities, which were found in a safe deposit vault in Chicago, where they had been deposited by decedent for safekeeping. These securities and their appraised values were as fol- lows : Certificates of stock of Illinois corporations, $21,- 575; certificates of foreign corporations, $24,962.50; bonds issued by Illinois corporations, $19,484.58; bonds issued by foreign corporations, $38,910; and bonds of a railroad company organized under the law of Illinois and Iowa, of the value of $9,100. He also left cash on de- posit with certain Chicago banks, to the amount of $1,- 194.76, and other personal effects and chattels in Cook County valued at $1,523. The Inheritance Tax Appraiser appointed by the County Court of Cook County includ- ed in his appraisement of property all the property above mentioned. The County Judge of Cook County, upon such report and appraisement, assessed and fixed the In- heritance taxes, to be paid by the beneficiaries under the will, at $1,423.25, and on April 26, 1907, the executrix paid to the County Treasurer of Cook County the sum of $1,352.09, being the taxes so fixed, less five per cent, deducted, in accordance with the statute, on account of payment within six months after testator's death. Pay- ment of this amount was made by check and upon the check the words '^paid under protest were endorsed by the attorneys of the executrix. Subsequently the money so paid was turned over to the State treasury by the County Treasurer of Cook County. From the Order of the County Judge fixing the taxes, an appeal was prayed by the executrix to the County Court of Cook County, where, after a hearing on May 17, 1909, the stocks and bonds of foreign corporations were held by that Court not subject to an Inheritance Tax under the laws of this State. 420 The same Court found that the taxes, on the remainder of the property included in the Appraiser's report should be $900, and ordered that the County Treasurer refund to the executrix the sum of $497.09, being the difference between the amount previously fixed by the County Judge and the amount as finally fixed by the County Court, less the discount in both cases. From this judg- ment of the County Court of Cook County an appeal was taken by the People to the Supreme Court of Illi- nois, which said Court, on June 29, 1910, affirmed the judgment of the County Court as to the amount of In- heritance Tax to be paid by the beneficiaries in this es- tate, but reversed that part of the judgment ordering the repayment by the County Treasurer of the said $497.09. The construction of Section 10 of the Inheritance Tax Act was involved in this case. This section provides that when any amount of the inheritance tax ^ shall have been paid erroneously to the State Treasurer, it shall be lawful for him, on satisfactory proof rendered to him by said County Treasurer of said erroneous payments, to refund and pay to the executor, administrator or trus- tee, person or persons, who have paid any such tax in error, the amount of such tax so paid, provided that all applications for repayment of said tax shall be made within two years from the date of said payment.' In reference to this section, the Supreme Court held that it was not the intention of this section to authorize the County Treasurer to repay taxes erroneously paid to him but that the State Treasurer, upon proper proof, was to refund such amounts. To secure such a refund of the said $497.09, now covered into the State Treasury, is the object of the claimant in filing her claim in this Court. 421 It is a well established principle of law in Illinois that there can be no recovery back of taxes erroneously or illegally paid, unless the same were paid under actual duress or compulsion. Yates v. Insurance Co., 200 111. 202, and cases cited. Upon the check by which payment of the taxes in ques- tion was made, the endorsement of the words *^paid un- der protest, ' ' obviously did not amount to payment under duress or compulsion. Therefore, if recovery can be had in this cause, it must be had under Section 10, above re- ferred to, which Section makes special provision for repayment in case of erroneous payments in the matter of an inheritance tax. The difficulty encountered in this regard, however, is the requirement of said Section 10 that application for repayment must be made within two years from the date of payment. In this case, payment was made to the County Treasurer April 26, 1907, and the two years ' lim- itation therefore had run April 26, 1909. The evidence further shows that neither during that period, nor after- ward, was any application made to the State Treasurer for repayment, either by the County Treasurer of Cook County, or the claimant, and the question therefore arises whether claimant is barred of recovery in this cause by limitation. Section 10, referred to above, is somewhat vague and uncertain as to the manner in which application for re- payment is to be made or as to the person by whom or to whom such application is to be made. As conditions precedent to repayment, two incidents are to concur: First, the County Treasurer is to render to the State Treasurer satisfactory proof of the erroneous payment, and, secondly, an application is to be made for repay- 422 ment, but whether application is to be made by the payer to the County Treasurer, by the payer to the State Treas- urer, or by the payer to the County Treasurer and then by the County Treasurer to the State Treasurer, is not at all evident from the context. It would seem to be the most natural method, however, for the person who had erroneously paid the tax to the County Treasurer to apply for repayment to the very same officer to whom payment in the first instance was made and that the County Treasurer, who is presumed to have paid this erroneous tax to the State Treasurer, would thereupon make proof of the erroneous payment to said State Treasurer and the latter officer then make payment. Again under Section 10 referred to, repayment is to be made by the State Treasurer upon satisfactory proof being made to him by the County Treasurer, of the er- roneous payment. It is unlikely that the County Treas- urer would render such proof unless application were first made to him for repayment by the party erroneous- ly paying the tax, notice of the erroneous payment being thus brought to his attention, and it is not unreasonable to suppose that this is the application which is intended should be made within the two years' period. There is no definite direction in Section 10 as to this matter of application and there is nothing in the sec- tion to indicate that the application is to be accompanied by any formality. In this case, at the time the tax was paid, claimant expressed protest by endorsing the same on the check. This protest was followed by an appeal by the claimant, from the Order of the County Judge, fixing the tax, and by the time the County Court rendered its opinion that part of the tax was illegal, the limitation 423 had run. There was no laches or lack of diligence on the part of the claimant. She was protesting against the pay- ment all the time and was seeking relief from the same by the only legal remedy at hand, following her remedy to the Supreme Court of the State. Her acts and conduct in the matter constituted a con- structive application of the very strongest kind and was of a continuing character. From all the facts in this case, it is the opinion of this Court that not only as a matter of equity and justice is claimant entitled to an award, but such an award is also in conformity with law. Her claim for $497.09 is there- fore hereby allowed. ' ' TABLE OF CASES. TABLE OF CASES. Containing Cases Cited, and Those Referred to in Quoted Opinions. Matter of: Page. Abbett, 29 Misc. Eep. (N. Y.) 567 84 Allen V. National State Bank, 92 Md. 509, 48 Atl. 78, 52 L. R. A. 760, 84 Am. St. Rep. 517 73 Althause, 63 App. Div. (N. Y.) 252. Affd. 168 N. Y. 670 45 Alvany v. Powell, 2 Jones Eq. 51 51 Amherst College v. Ritch, 151 N. Y. 282 186 Anthony, 82 N. Y. S. 789 102 Arnot, 130 N. Y. S. 499 123 Astor, 2 N. Y. S. 630 200 Astor, 17 N. Y. St. Rep. 787 203 Mrs. Astor, 20 Abb. N. C. 405-415 372 Attorney General v. Bouwens, 4 M. & W. 171 51 Attorney General v. HI. Agricultural College, 85 111. 516 228 Attorney General v. Montifiore, 59 Law T. Rep. 534 102 Attorney General v. Rafferty, 95 N. E. (Mass.) 747 151 Ayers v. Title & Trust Co., 187 111. 42 32, 35, 136, 139, 179, 204 Babcock, 37 Misc. Rep. (N. Y.) 445; 75 N. Y. S. 926; 81 App. Div. (N. Y.) 645; 81 N. Y. S. 1117 272 Babcock, 115 N. Y. 450 215 Backhouse, 110 App. Div. (N. Y.) 737 118 Bailie, 38 N. E. Rep. 1007 280 Baker, 83 App. Div. (N. Y.) 530; 82 N. Y. S. 390; Affd. 178 N. Y. 575 40 Balleis, 144 N. Y. 132 283 Barnum, 129 App. Div. (N. Y.) 418 190 Baxter v. Stevens, 95 N. E. 854 17 Beach, 19 App. Div. (N. Y.) 630 128 Beach, 154 N. Y. 242 128 Becker, 26 Misc. Rep. (N. Y.) 633 216 Beers v. Glynn, 211 U. S. 477 233 Bell, 130 N. W. (Iowa) 798 100 BelPs Gap R. R. v. Penna., 134 U. S. 232 11 Benton, 234 111. 366 91, 179 [427] 428 TABLE OF CASES. Matter of: Page. Berry, 23 Misc. Eep. (N. Y.) 230 216 Billings V. People, 189 111. 472 15, 16, 32, 35, 38, 39, 40, 44 53, 136, 137, 144, 179, 199, 247, 255, 408 Bird, 32 St. Eep. (N. Y.) 899 123, 127, 134 Blackstone v. Miller, 188 U. S. 189 56, 74, 75, 76, 80, 83 Blanchard v. Williamson, 70 111. 647 154 Bloomington Tp. v. City of Bloomington, 97 N. E. (111.) 280 172 Board of Education v. People, 203 U. S. 553 408 Bogert, 25 Misc. Eep. (N. Y.) 466 139 Borup, 28 Misc. Eep. (N. Y.) 474 101 Bostwick, 38 App. Div. (N. Y.) 223. AfPd. 160 N. Y. 489 98 Bowen v. People, Cook County Court Case No. 24872 130 Bradley v. Holdsworth, 3 M. & W., p. 424 71 Brandreth, 28 Misc. Eep. (N. Y.) 468 208 Brandreth, 169 N. Y. 437 99 . Brewer, 16 Pittsb. Leg. J. 114 102 Brez, 172 N. Y. 609, reversing 69 App. Div. (N. Y.) 619, 108, 257, 261 Bristol V. Washington Co., 177 U. S. 133 73 Bronson, 150 N. Y. 1 54, 55, 58, 65, 71, 72 Bruce, 59 N. Y. S. 1083 191 Buckout V. City of N. Y., 176 N. Y. 363, 68 N. E. 659 215 Buckingham, 106 App. Div. (N. Y.) 13 32, 114 Bushnell, 73 App. Div. (N. Y.) 325 55, 262 Butler, 65 Sup. Ct. Eep. (N. Y.) 400 126 Byrd v. People, 253 111. 223 262 Caldver v. Bull, 3 Dall. 386 224 Callahan v. Woodbridge, 171 Mass. 595 51, 65 Campbell v. Gonsalus, 25 N. Y. 613 270 Carpenter v. Pennsylvania, 17 How. 456 222 Carroll, 128 N. W. (Iowa) 929 147 Carver, 4 Misc. Eep. (N. Y.) 592 47 Chanler v. Kelsey, 205 U. S. 466 113 Chicago, etc., E. Co. v. Sturm, 174 U. S. 710 77 Citizens' Nat. Bank v. Kentucky, 217 U. S. 445 166 City of N. Y. V. McLean, 170 N. Y. 374-383 194 Clapp V. Mason, 94 U. S. 589 10 Cleveland Trust Co. v. Lander, 184 U. S. Ill 22 Clinch, 180 N. Y. 300 80, 83 Commonwealth 's Appeal, 34 Pa. St. 204 143 Com. V. Kuhn, 2 Pa. Co. Ct. E. 248 102 Commonwealth v. Smith, 20 Pa. St. 100 143 Connell v. Crosby, 210 111. 380. 43, 44, 179, 210, 213 TABLE OF CASES. ~ 429 Matter of: Page. Conwell, 45 Leg. Int. 266 103 Coogan, 27 Misc. Kep. (N. Y.) 563. Affd. 45 App. Div. (N. Y.) 628; 162 N. Y. 613 193, 194 Cooksey, 182 N. Y. 92 115, 118, 119 Cook, 187 N. Y. 253. 18, 122, 127 Cook, 125 App. Div. (N. Y.) 114, 194 N. Y. 400 195 Cooley on Taxation, Vol. 2, 3rd, p. 832 166 Cooley, 186 N. Y. 220 63 Cooper, 127 Pa. 435 35 Cornell, 66 App. Div. (N. Y.) 162, 170 N. Y. 423 100, 221 Crary, 64 N. Y. S. 566 209 Crawford, 126 N. W. (Iowa) 774 286 Crerar v. Williams, 145 111. 625 282, 288 Crerar, 56 App. Div. (N. Y.) 479 190 Cruger, 54 App. Div. (N. Y.) 405 100 CuUen, 142 Pa. 18 248 Cullom, 145 N. Y. 593 284 Culver, 123 N. W. (Iowa) 743 54 Curtice, 111 App. Div. (N. Y.) 230 208 Curtis, 142 N. Y. 219 36 Curtis, 31 Misc. Eep. (N. Y.) 83 216 Daly, 100 App. Div. (N. Y.) 373; 91 N. Y. S. 858. Affd. 182 N. Y. 524 74, 82 Dammert v. Osborn, 141 N. Y. 564 16 Davenport's Appeal, 3 Pa. Sup. Ct. Dig. 236 102 Davis, 98 App. Div. (N. Y.) 546, 184 N. Y. 299 130 Davis, 149 N. Y. 539 144, 199, 204, 272, 374 Delano, 69 Atl. Eep. (N. J.) 482 57 Delano, 176 N. Y. 486 110, 112 Louisa Del Busto, 23 Weekly Notes Cases 111 143 Deutsch, 107 App. Div. (N. Y.) 192 127 Dingman, 66 App. Div. (N. Y.) 228 17 Dixon V. Eussell, 73 Atl. 51 185, 230 Dodge County v. Burns, 131 N. W. (Neb.) 922 84 Dos Passos Collateral Inheritance Tax, 20 10 Dowell's History of Taxation in England, 148 9 Dows, 167 N. Y. 227 106, 112 Dubois Appeal, 121 Pa. St. 368, 15 Atl. 641 102 Dunaway v. Campbell, 59 111. App. 665 154 Duror v. Motteux, 1 Ves. Sr. 320 288 Duryea, 128 App. Div. (N. Y.) 205 126 Earle, 74 App. Div. (N. Y.) 458 270 430' TABLE OF CASES. Matter of: Page. Edson, 38 App. Div. (N. Y.) 19. Affd. 159 N. Y. 568 186 Edwards, 85 Hun 436 101 Eidman v. Martinez 53 Embury, 19 App. Div. (N. Y.) 214-218 58, 149, 233 Ennis v. Smith, 14 How. 400 224 Enston, 113 N. Y. 174, 21 N. E. 87; 3 L. E. A. 464. .5, 15, 48, 52, 56, 71 Expanded Metal Fireproofing Co. v. Boyce, 233 HI. 284 178 Eyre v. Jacob, 14 Grat. 422 10 Fallows on Inheritance Tax and Transfer Law of N. Y. 366, . . . 168 Farley, 15 N. Y. St. Eep. 727 236 Fayerweather, 143 N. Y. 114; 38 N". E. 278 15, 123, 143 Fearing, 200 N. Y. 340 117 Fernandes Case, L. E. 5, Ch. 314 51 First Nat. Bank of Mendota v. Smith, 65 HI. 44-55 65 Fisch, 34 Misc. Eep. (N. Y.) 146 127 Fitch, 160 N. Y. 87; 39 App. Div. (N. Y.) 609 55, 58 Fletcher v. Peck, 6 Cranch 87 224 Forsyth, 10 Misc. Eep. (N. Y.) 477 20 Frazer v. People, 3 N. Y. S. 134; 6 Dem. 174 147, 370, 372 Freund, 128 N. Y. S. 48 215 Frothingham v. Shaw, 175 Mass. 59 16 Fuller, 62 App. Div. (N. Y.) 428 185 Gardiner v. Carter, 69 Atl. (N. H.) 939 55, 64 Gautier v. Ditmar, 129 N. Y. S. 834 144 Gelsthorpe v. Furnell, 51 Pac. Eep. (Mont.) 267 10 Gen. St. 1895, p. 3341, p. 268 56 Gibb's Estate, 83 N. Y. S. 53 53 Gibbes, 84 App. Div. (N. Y.) 510 68 Gibbon's Eoman Empire, Vol. 1, Ch. 6, pp. 158-9 2 Gibbon 's Decline and Fall of the Eoman Empire, Vol. 1, pp. 163- 164 9 Gihon, 169 N. Y. 443, modifying 64 App. Div. (N. Y.) 504.147, 214, 216 Gilman, 6 Dem. Sur. 358 235 Giozza V. Tierman, 148 U. S. 657 12 Glendenning, 68 App. Div. (N. Y.) 125 79 Goelet's Estate, 78 N. Y. S. 47 270, 272 Gordon, 186 N. Y. 471 83, 219 Gould, 48 N. Y. S. 872 276 Gould, 19 App. Div. (N. Y.) 352 207 Gould, 46 N. Y. S. 506 206, 214 Gould, 156 N. Y. 423 31, 32, 33 TABLE OF CASES. 431 Matter of: Page. Graves, 242 lU. 212... 14, 15, 17, 32, 121, 138, 141, 199, 204, 210, 247 Graves, 242 111. 24 282 Green 's Law of Taxable Transfers, 2d Ed 65 Green v. Craft, 2 H. Bl. 30 9 Green's Estate, 129 N. Y. S. 54 19, 38 Greene, 153 N. Y. 223 17, 99 Greves v. Shaw, 173 Mass. 205 65 Griffith Ex. v. State of Illinois, Court of Claims, 418-419. .171, 172 Gulf, Colo. & Santa Fe By. v. Ellis, 165 17. S. 150 13 Grosvenor, 124 App. Div. (N. Y.) 331 83, 219 Hacket, 14 Misc. Rep. (N. Y.) 282; 35 N. Y. S. 1051 149, 154, 221, 236 Haggerty, 128 App. Div. (N. Y.) 479 119 Haight V. Pittsburgh, Ft. Wayne & Chicago R. E. Co., 73 U. S. 15 166 Hamilton, 148 N. Y. 310 287 Harbeck, 161 N. Y. 211; 55 N. E. 850 15 Harder, 108 N. Y. S. 154 130 Hellman, 174 N. Y. 254, reversing 77 App. Div. (N. Y.) 355 293 Henavie v. N. Y. C. & H. R. R. R. Co., 154 N. Y. 281 292 Herron, Treasurer v. Keeran, 59 Ind. 472, 476 49 Hess, 110 App. Div. (N. Y.) 476. Affd. 187 N. Y. 554 100 Heuser v. Harris, 42 111. 425 288 Hill V. Atkinson, 2 Merivale 45 9 Hite, 113 Pac. (Cal.) 1072 202, 204 Hoeffer v. Clogan, 171 111. 462 287 Hoffman, 143 N. Y. 334 35 Holden Estate, Appraisement No. 2173 39 Houdayer, 150 N. Y. 37 50, 76, 83 House V. Loekwood, 137 N. Y. 259 270 Howard, 5 Dem. 483 47 Howe, 86 App. Div. (N. Y.) 286. Affd. 176 N. Y. 570 32, 109 Howe, 112 N. Y. 100 134 Hoyt, 76 N. Y. S. 504 263 Hoyt, 37 Misc. Rep. (N. Y.) 720 142 Hubbard, 21 Misc. Rep. (N. Y.) 566 150, 233 Huber, 86 App. Div. (N. Y.) 458 34 Hughes V. Golden, 44 Misc. Rep. (N. Y.) 128 147 Hull, 109 App. Div. (N. Y.) 248 194 Hull, 111 App. Div. (N. Y.) 322 112 Humphrey v. State, 70 N. E. 957 280 432 TABLE OF CASES. Matter of: Page. Hunt, 86 Hun 232 128 Hunt, 33 K Y. S. 256 128 Irish, 28 Misc. Eep. (N. Y.) 647 216 Jackson v. Phillips, 14 Allen 539 288 James, 144 N. Y. 6 62, 53, 55, 66, 68, 71, 147 Jenison v. Hapgood, 10 Pick 77 16 Jermain v. L. S. & M. S. E. E. Co., 91 N. Y. 492 71 Johnson, 19 N. Y. Supp. 963 102 Jones, 5 Dem. Eep. 30 154 Jones, 59 N. Y. S. 983, 28 Misc. Eep. (N. Y.) 356. . .139, 140, 202, 209 Jones, 54 Misc. Eep. (N. Y.) 202 276 Jones, 172 N. Y. 575; 65 N. E. 570 46 Kantzler v. Bensinger, 214 111. 589 178 Kavanaugh, 6 N. Y. 669 122 Keenan, 5 N. Y. S. 200 231, 245 Keeney, 194 N. Y. 281 200 Keeley, 29 Misc. Eep. (N. Y.) 169 202 Kelly V. Ehoads, 188 U. S. 1 ante 359; 23 Sup. Ct. Eep. 259 74 Kelsey v. Church, 112 App. Div. (N. Y.) 408 184 Keeney, 194 N. Y. 281 138 Kennedy, 113 App. Div. (N. Y.) 4 187, 201 Kidd, 188 N. Y. 274 41 King, 30 Misc. Eep. (N. Y.) 575 79 Kingman, 220 111. 563 139, 179, 255 Kingsbury v. Chapin, 82 N. E. (Mass.) 700 63, 84 Kinney v. Stevens, 93 N. E. 586 74 Knoedler, 140 N. Y. 377; 35 N. E. 601 19, 46 Knowlton v. Moore, 178 U. S. 41 122 Kocherspercer v. Drake, 167 111. 122 6, 15, 121, 179 Langdon, 153 N. Y. 6 117 Lange, 55 N. Y. S. (89 St. Eep.) 750 139 Lansing, 182 N. Y. 238 112, 120 Lansing, 64 N. Y. S. 1125 187, 188 Lansing, 31 Misc. Eep. (N. Y.) 148 203 Large v. McLain, 7 Atl. Eep. 101 152 Lawrence, 96 App. Div. (N. Y.) 29 189 Lines (1893), 155 Pa. St. 378, 26 Atl. 728 102 Liss, 78 N. Y. S. 969 215, 216 Livingston, 1 App. Div. (N. Y.) 568 216 Lockwood V. Johnson, 106 111. 334 166 Lord, 111 App. Div. (N. Y.) 152 81, 116 TABLE OF CASES. 433 Matter of: Page. Lowndes, 60 Misc. Eep. (N. Y.) 506 115, 203 Lowry, 89 App. Div. (N. Y.) 226 190, 192 Ludlow, 4 Misc. Eep. (N. Y.) 594 203 Mager v. Grima, 8 How. 490 47 Magoun v. Illinois Trust and Savings Bank, 170 U. S. 283 . . 9, 15, 105 Manning, 169 N. Y. 449 34 Maris Estate, 50 Leg. Int. 458; 14 Pa. Co. Ct. Eep. 171; 3 Pa. Dist. E. 33 101 Marshall v. Marshall, 252 111. 568 342 Mason, 120 App. Div. (N. Y.) 738 271 Masury, 28 App. Div. (N. Y.) 580, aff'd without opinion 159 N. Y. 532 97 Mayor v. Tunis (N. J.), 78 Atl. 1066 207 MeCarvey, 6 Dem. 145 126 McCormick v. SuUivant, 10 Wheat. 202 11 McCulloch V. Maryland, 4 Wheat. (U. S.) 316, 429 76 McCurdy v. McCurdy, 197 Mass. 248; 83 N. E. 881; 16 L. E. A. (N. S.) 329 32, 43, 45, 50, 73 McDowell V. Adams et al., 45 Pa. 430 132 McKnight v. Glynn, 106 N. Y. S. 956 195 McLean v. Jephson, 123 N. Y. 142 194 McPherson, 104 N. Y. 306 5 Mergentime, 129 App. Div. (N. Y.) 367, aff*d 195 N. Y 287 Merriam's Estate, 141 N. Y. 479 10, 284 Merriam, 147 Mich. 630; 111 N. W. 196; 9 L. E. A. 1104; 118 Am. St. Eep 561 73, 77 Merrifield Estate v. People, 212 111. 400 89, 92, 179 Meyer, 83 App. Div. (N. Y.) 381 268 Micklewait, 11 Exch. 452 102 Miller, 45 Hun 244 123 Miller, 110 N. Y. 216 194, 292 Miller^s Estate, 182 Pa. 157 143 Miller v. Tracy, 86 N. Y. S. 1024; 93 App. Div. (N. Y.) 27 266 Miller v. Wolfe, 115 Tenn. 234 252 Mills, 67 N. Y. S. 956; 32 Misc. Eep. (N. Y.) 493 44 Milne, 76 Hun 328 144 Minnesota v. Central Trust Co. 94 Fed. Eep. 244; 36 C. C. A. 214. . 248 Minot V. Philadelphia W. & B. E. E. Co., 85 Pa. 230 166 Minot V. Winthrop, 162 Mass. 113 10 Moffitt V. Kelly, 31 Supt. Ct. Eep. 79 42 Moody V. Shaw, 173 Mass. 375 59 434 TABLE OF CASES. Matter of: Page. Moore, 90 Hun 162; 35 N. Y. S. 782 15, 123, 127, 129, 144 Moore, 97 Sup. Ct. (N. Y.) 162 123 Morgan, 150 N. Y. 35 50, 68 Morgan, 36 Misc. Eep. (N. Y.) 753j 74 N. Y. S. 478 213 Moses, 123 N. Y. S. 443 290 Myers Estate, 129 N. Y. S. 194 42, 75 National Bank v. Commonwealth, 76 U. S. 353 166 National Safe Deposit Co. v. Stead, 250 111. 584 14, 15, 32, 141, 159, 195, 299, 352 Neilson v. Eussell, 71 Atl. (N. J.) 286 57 N. Y. Act of 1885 (Laws 1885, p. 820, c. 483, Sec. 1) 56 Nichols, 98 Sup. Ct. Eep. (N. Y.) 134 129 Nielson v. Eussell, 69 Atl. (N. J.) 476 56 Nieman, 131 Pa. 346 35 Niven, 61 N. Y. S. 956 188 O'Donohue, 44 App. Div. (N. Y.) 186 182 Offerman, 25 App. Div. (N. Y.) 94 216 Orcutt's Appeal, 97 Pa. St. 179, 186 51 Orr V. Gilman, 183 U. S. 278 224 Ottawa Glass Co. v. McCaleb, 81 111. 556 166 Palmer, 183 N. Y. 238 59 Pell, 60 App. Div. (N. Y.) 286 22 Pell, 171 N. Y. 48 22 Pelton, ION. Y. S. 643 236 People V. Burkhalter, 247 111. 600 '. 96 People V. Cameron, 124 N. Y. S. 949 123, 290 People V. Coleman, 107 N. Y. 544 206 People V. Estate of Marshall Field, 248 111. 147 40, 218 People V. Gould, No. 24150 County Court Cook County, 111 148 People V. Griffith, 245 111. 532 19, 53, 66, 170, 171, 172, 351 People V. Kelley, 218 111. 509 92, 94, 179 People's Loan & Homestead Ass'n v. Keith, 153 111. 609 166 People V. McCormick, 208 111. 437 35, 144, 179, 255, 381 People V. Mills, 247 111. 620 177, 220, 231, 333, 346 People V. Moir, 207 111. 180 93, 179, 220, 231 People V. Nelms, 241 111. 571 138, 139, 204, 343 People V. Pierce, 6 111. 553 228 People V. Eaymond, 188 111. 454 241, 243 People V. Eice, 40 Col. 508; 91 Pac. 33 143, 144 People V. Sholem, 238 111. 203 177, 180, 197, 198, 299, 352 People V. Western Seaman's Friend Society, 87 111. 246. .279, 286, 290 TABLE OF CASES. 435 Matter of: Page. Peoria Gas Lt. Co. v. Peoria Terminal Ey. Co., 146 111. 372 205 Peters, N. Y. Law Journal, Mar. 25, 1909 102 Peters, 74 N. Y. S. 1028 186 Phipps, 77 Hun 325. Affd. 143 N. Y. 641 80, 81 Piatt, 29 N. Y. S. 396 143 Plummer, 30 Misc. Eep. (N. Y.) 19. Affd. Plummer v. Coler, 178 U. S. 115 47 Porter, 124 K Y. S. 676 81, 219, 233 Post, 5 App. Div. (N. Y.) 113 276 Preston, 78 N. Y. S. 91 72 Prime, 136 N. Y. 347 123, 285, 289, 294 Prout, 3 N. Y. S. 831 143, 150, 236 Provart v. Harris, 150 HI. 40 178 Provident Hospital v. People, 198 HI. 495 142, 179, 184, 278 Pullman, 46 App. Div. (N. Y.) 574 54, 218 Purdy, 24 Misc. Eep. (N. Y.) 301 219 Eathbone v. Bank of Metropolis, N. Y. Law Journal, June 15, 1904 168 Bay, S35 N. Y. S. 481 126 Eamsdill, 190 N. Y. 492 85 Eeish V. Com., 42 Leg. Int. 102. Affd. 106 Pa. St. 521 102 Eeview of Eeviews, Feb., 1893 10 Eiemann, 87 N. Y. S. 731 38 Eice, 29 Misc. Eep. (N. Y.) 404 202, 217 Eobinson v. Martin, 200 N. Y. 159 259 Eogers, 149 Mich. 305; 112 N. W. 931; 11 L. E. A. (N. S.) 1134; 119 Am. St. Eep. 677 73, 74, 77, 78 Eogers, 75 N. Y. S. 835 120 Eomaine, 127 N. Y. 80 5, 49, 52, 168 Eoosevelt, 143 N. Y. 120 35 Eosenthal v. People, 211 111. 306 88, 92, 179 Eothchild, 71 N. J. Eq. 210 285 Eussell V. Madden, 95 111. 485 16 Sandberg v. State, 113 Wis. 578 228 Sanford, 123 N. Y. S. 284 218 Sanf ord, 133 N. W. 870 (Neb.) 17, 38, 142, 143 Savings & Loan Society v. Multoomah County, 169 U. S. 421; 18 Sup. Ct. 392 73 Schermerhorn, 57 N. Y. S. 26 193 Sehermerhorn, 50 Misc. Eep. (N. Y.) 233 68 Schermerhorn, 38 App. Div. (N. Y.) 350 190 Scholey v. Eew, 23 Wall. 331 10 436 TABLE OF CASES. Matter of: Page. Schoolfield v. Lynchburg, 78 Va. 366 10 Scott V. People, 310 111. 594 166 Scrimgeour, 80 App. Div. (N. Y.) 389 194 Seaman, 147 N. Y. 69; 87 Hun 619 37, 97, 101, 122 Seibert's Appeal, 110 Pa. St. 329; 1 Atl. 346 102 Seaver, 63 App. Div. (N. Y.) 283 107, 115, 232 Seaver, 71 N. Y. S. 544 120 Seymour, 128 N. Y. S. 775 221 Sharer, 73 N. Y. S. 1057 102 Shelton v. Campbell, 109 Tenn. 690 143 Sherman, 153 K Y. 1 46, 105 Sherman, 15 App. Div. (N. Y.) 628 46 Sherwell, 125 N. Y. 376 134 Shields, 124 N. Y. S. 1003 38 Sholem, 238 111. 203 195, 220, 231, 347 Sloane, 154 N. Y. 109 15, 32, 139, 189, 199, 207, 256, 272 Smith, 71 App. Div. (K Y.) 605 208, 209 Spangler, 127 N. W. (Iowa) 625 286 Speed, 216 111. 23-28. Affd. 203 U. S. 553 179, 282, 408 Springer v. Bien, 128 N. Y. 99 270 Stanton, 142 Mich. 491 77, 78 Stanford, 126 Cal. 112 14 Stanley v. Schwalby, 162 U. S. 255 228 Stanley v. Supervisors of Albany, 121 U. S. 535 194 Starbuck, 137 App. Div. (N. Y.) 866 19, 38 State V. Alston, 94 Tenn. 674 9, 10 State V. Dalrymple, 70 Md. 294; 3 L. R. A. 372; 17 Atl. 82 10, 51, 57, 67 State V. Hamlin, 86 Maine 495 10 State Street Trust Co. v. Stevens, 95 N. E. (Mass.) 851 101 Stauffer, 119 La. 66 79 Stebbins, 103 N. Y. S. 563 130 Stewart, 131 N. Y. 274; 30 N. E. 184 15, 143 Stewart, 147 Pa. 383 248 Stilwell, 34 N. Y. S. 1123 128 Stokes V. Foote, 172 N. Y. 327 270 Strang, 102 N. Y. S. 1062 149 Strang, 117 App. Div. (N. Y.) 796-99 149, 251 Street R. E. v. Morrow, 87 Tenn. 406-427 65 Strode v. Commonwealth, 52 Penn. St. 181 10, 47 Stuyvesant, 131 N. Y. S. 197 33 TABLE OF CASES. 437 Matter of: Page. Sutton, 3 App. Div. (N. Y.) 208. Affd. 149 N. Y. 618.. 43, 105, 216 Swift, 137 N. Y. 77; 32 N. E. 1096; 18 L. E. A. 709 16, 36, 43, 44, 45, 105, 216 Tappan v. Merchants Nat. Bank, 19 Wall. 490-500 65 Thayer, 193 N. Y. 430, Aff'g Thayer, 126 App. Div. (N. Y.) 951 63 Thomas, 3 Misc. Eep. (N. Y.) 388 80 Thomson, 5 Wkly. Notes Cas. 19 102 Thomson v. Advocate General, 12 CI. & F. 1 51 Thome, 44 App. Div. (N. Y.) 8 201 Thorne, 60 N. Y. S. 419 100 Thrall, 30 App. Div. (N. Y.) 271 217 Thrall, 157 N. Y. 46 217 Tiffany, 128 N. Y. S. 106 72 Tracy, 179 N. Y. 501-09 262, 263 Tucker, 59 N. Y. S. 699 120 Tulane, 51 Hun 213 48 Twigg, 15 N. Y. S. 548 47 Ullman, 137 N. Y. 403 186 U. S. V. Baltimore & Ohio E. E. Co., 84 U. S. 322 166 U. S. V. Banks, 17 Fed. Eep. 322 41 U. S. V. Fox, 94 U. S. 315-320 10 U. S. V. Hart, 4 Fed. Eep. 292 96 U. S. V. Perkins, 163 U. S. 625-629 10, 47, 76 U. S. V. Eingold, 8 Peters 150 228 U. S. V. Barker, 2 Wheat. 395 228 Vanderbilt, 172 N. Y. 69; 64 N. E. 782.108, 142, 257, 261, 263, 264, 265 Vanderbilt, 163 N. Y. 597; 50 App. Div. (N. Y.) 246 105, 109 Vanderbilt, 10 N. Y. S. 239 150, 188, 196, 200, 236 Vassar, 127 N. Y. 1; 27 N. E. 394 15, 199 Walker Estate, Cook County Court (HI.) Appraisement No. 3355 131 Walker v. People, 192 HI. 106 179, 206 Wallace, 28 Misc. Eep. (N. Y.) 603 192 Wallace v. Attorney General, L. E. 1, Ch. 1 51 Wallace v. Meyers, 38 Fed. Eep. 184 5, 47 Wallace, 71 App. Div. (N. Y.) 284 187, 232 Walton V. Westwood, 73 HI. 125 166 Walworth, 72 N. Y. S. 984 120 Walworth, 66 App. Div. (N. Y.) 171 107 Warren v. Cook, 116 HI. 199 166 Waugh 's Appeal, 78 Pa. St. 436 102 438 TABLE OF CASES. Matter of: Page. Weston V. Goodrich, 93 Sup. Ct. Eep. (N. Y.) 194; 86 Hud 194 185, 187 Westurn, 152 N. Y. 93 181, 200, 213, 214, 217, 221 Weeks v. Corwell, 104 N. Y. 325 259 Whiting, 2 App. Div. (N. Y.) 590 47 Whiting, 150 N. Y. 27; 44 N. E. 715; 34 L. E. A. 232; 5 Am. St. Eep. 640 68, 72 Wheeler, 100 N. Y. S. 1044 131 Wieting v. Morrow, 132 N. W. (Iowa) 193 85, 173, 219 Wilkens, 129 N. Y. S. 600 201 Wilmerding, 117 Cal. 281 10 Winters, 21 Misc. Eep. (N. Y.) 552 196 Wolfe, 137 N. Y. 205 150, 184, 197, 231 Woods, 123 N. Y. S. 574 220 Woolsey, 19 Abbott 's N. C. 232 126 Wormser, 73 N. Y. S. 748; 51 App. Div. (N. Y.) 441; modifying 28 Misc. Eep. (N. Y.) 608 200, 213 Wright's Appeal, 38 Pa. St. 507 102 Wyman v. Halstead, 109 U. S. 654 77 Yates V. Insurance Co., 200 111. 202 171, 421 Young V. Wittenmyre, 123 111. 303 16 Zefita, 167 N. Y. 280-284 80, 81, 149 GENERAL INDEX. GENERAL INDEX. A ACKNOWLEDGED RELATION: Page. burden of proof is upon the claimant of exemption 127 covers beneficiary not adopted as child 128, 129 children of person to whom decedent stood in relation of parent taxable 129 parents of beneficiary claiming exemption must be dead 130 step-child cannot claim exemption 130, 131 testator may stand in relation to married adult 128 ADMINISTRATION : ancillary administration necessary to tax at home of corpora- tion, owner non-resident 64 ADMINISTRATORS AND EXECUTORS: (Also see Trustees.) executors cannot make arbitrary distribution to reduce tax. . , .85, 86 duty is to pay tax 147 must withhold tax from share of beneficiary 147 executor must move for appraisement 147 executor and administrator are subrogated in advancing tax... 147 executors and administrators charged with collection and pay- ment of tax 147 executor of non-resident testator may apportion property for taxation 147 executor is personally liable for the tax 148, 149. 150 executor of non-resident decedent liable for payment of tax. . . . 150 when executor not liable 150 not relieved by discharge in the Probate Court without payment 151 subrogation when covenant in deed transferring land subject to tax 151, 152 not discharged by order of the Probate Court 153, 154 Probate Court may demand voucher showing payment of tax by administrator 154 executor may appeal 221 may be committed for failure to pay tax. 235, 236 [441] 442 INDEX. ADMINISTRATORS AND EXECUTORS— Continued : Page. cannot object to correctment of assessment, when 236 liability cannot be settled v.nder Section 16 (N. Y.) 236 liability not determinable on motion 236 administrators, executors, trustees, beneficiaries not relieved by statute of limitations 249, 250 ADOPTED CHILD: child of is not "lineal descendant of decedent*^ 123 widow of adopted son is * ' widow of a son " 126 adoption effected in foreign state entitles beneficiary to exemp- tion 126 children of are ^ ' lineal descendants of decedent " 126 child of adopted child taxable 127 ADVANCEMENTS: taxable under Federal Law 41 AMENDATORY ACT: does not relieve previously vested interests 292 when amounts to revision and continuation of act super- seded 292, 293 ANNUITIES: (See Practice and Procedure — Life Estates — Mortality Ta- bles — Contingent Transfers) : payable out of what property 258-272 tax payable out of 258-272 ANNUITY TABLES (See Mortality Tables — ^Practice and Procedure): ANTE-NUPTIAL CONTRACT: when taxable 39 legal effect is to measure dower and rights of succession 39 when not taxable 40 to make a will — property transferred by will 40 APPEAL (See Practice and Procedure): first appeal lies from the County Judge's order of tax to the County Court 178, 220 trial in the County Court on appeal is de novo 177, 178, 179, 220 appeal lies from the County Court to the Supreme Court 177, 178, 179, 220 Attorney General may appeal from County Judge to the County Court 178, 179, 180 Attorney General may appeal from the County Court to the Supreme Court 178, 179, 180 INDEX. 443 APPEAL — Continued: Page. State is an interested party and can appeal 178, 179, 180 excessive valuation cannot be relieved on petition, appeal neces- sary 189, 190 cannot be taken in piece-meal 195 must appeal by petition 220 appeal perfected — how 220 amount of bond 220 bill of exceptions 220 is common law proceeding 220 notice of appeal 221 attorney cannot waive service 221 additional allegations to petition may be filed 221 necessary to review correctness of assessment 221 executor may appeal 221 APPEAISER AND APPRAISEMENT (See County Judge— Market Value — Bemainders — Life Estates — Practice and Procedure): proceeding is one at law 177 proceeding is governed by rules in law action 177 appraiser is public official 195 his appointment is evidenced by written order 195 takes oath of office 195 duties are of a quasi judicial character 195 must serve notice on all persons in interest 195 The People, etc., an interested party 195 Attorney General representative of The People in appraise- ments and appeals 195 fees of appraiser limited to $10.00 per day 196 fees of appraiser payable out of inheritance tax moneys col- lected in the particular appraisements 196 if no tax in the particular appraisement, the appraiser cannot be paid 196 is entitled to reimbursement for moneys necessarily expended for witness fees and reasonable disbursements 196 cannot engage counsel and charge the expense to his serv- ices 196-376 appraisement must proceed under Section 11 of the Illinois law 197 value of property fixed as of date of death 198, 199 practice and procedure governed by law in force at the time of appraisement 199 contingent estates appraisable 199 444 INDEX. APPRAISER AND APPRAISEMENT— Continued : Page. cannot determine questions of law 200 has power to value property 200 may hear evidence on deductions 200 Keport returned for additional proof 202 second appraisement not permissible to increase value 202 title of appraisement case 202 property omitted from first appraisement 203 appraiser in doubt reports property taxable 203 appraiser's duty ended with report 203 may use own knowledge about property in fixing value 204, 206 another appraisement cannot be had to increase value because of defeated claims 217 misconduct of 229 shall be fined and discharged 229 real estate in several counties. 231 value of life estate in first appraisement does not diminish property in second appraisement 268, 269, 270 effect of prior valuation on second appraisement of property postponed for taxation 271 appraisement on or after July 1st, 1909 (111.) 273 misappropriation by executor APPRECIATION IN VALUE AFTER DEATH. (See Increase.) ASSESSMENT. (See County Judge.) Erroneous payment of tax does not preclude subsequent tax- ation 113, 114 ASSOCIATION. (See Section Nine— Joint Stock Association.) AUDITOR. (See Refund of Tax— County Treasurer.) AUNT. (See Exemption.) AWARD: taxable by decisions of County Court of Cook County 39 referred to in Billings v. People, 189 111. 472 38 attitude of State Department of Justice on taxability 385, 386 B BAILEE. (See Section Nine.) BANK. (See Section Nine.) BENEFICIAL INTEREST. (See Tax.) INDEX. 445 BENEVOLENT. (See Exemption.) Page. BENEVOLENT USE. (See Exemption.) BOND. (See Security for Tax.) BONDS AND NOTES: (See Transfer.) United States bonds not taxable 46, 68 of United States — when taxable 47, 50 bonds of Illinois corporation owned by non-resident taxable... 51 of foreign corporation owned by non-resident not taxable in Illinois (L. 1895) 51 of domestic corporation held in taxing state 53 when held as collateral may not be taxable 54 of foreign corporation taxable in state located 66 foreign and domestic taxable in state of location of bonds.. 67, 68 without taxing state not taxable in state of incorporation 69 secured by mortgage on land in New York owned by non-resi- dent, not taxable 71, 72 notes secured by mortgage in safety deposit box in New York .... 72 notes of non-resident at owner's domicile secured on land in Massachusetts not taxable 72, 73, 74 notes of non-resident at owner's domicile secured on land in Michigan taxable 76, 77 BBOTHEB. (See Exemption.) BURDEN OF PBOOF: (Also see Evidence.) burden is on claimant to show exemption 15, 122, 127, 130 evidence must show income reserved to make property trans- ferred taxable 201 O CAPITAL INVESTED. (See Property.) CHARITABLE. (See Exemption.) CHILD. (See Exemption.) CLERK OF COUNTY COURT: collects $5.00 for each case in first and second-class counties. . . . 226 entitled to costs out of any inheritance tax collections 226 entitled to fees in all cases 226 of County Court of Cook County 227 entitled to $10.00 for each case 227 may appoint tax clerk 227 446 INDEX. CLKRK OF COUNTY COURT— Continued: Page. salary fixed by judge 227 excess fees to County Treasurer 227 when People institute suit, fees 227, 228 COLLATERAL FOR DEBT: (See Bonds, and Stocks.) Bonds held as collateral may not be taxable 54 COLLECTION OF TAX.. (See Delinquent Tax— Lien of Tax.) COMMUNITY PROPERTY: California statute taxing same constitutional 42 COMPOSITION. (See Compromise of Tax.) COMPROMISE OF TAX: (Also see Forms.) State Treasurer, with the written consent of Attorney General, may compromise tax 274 effected by agreement signed in triplicate. 274 one copy retained by State Treasurer 274 one copy retained by executor or trustee 274 one copy filed in the office of the Clerk of County Court 274 clerical error in law 275 compromise of litigation 17 CONSENT TO TRANSFER. (See Section Nine and Practice and Pro- cedure.) CONSTITUTIONAL: law of 1895 constitutional 4, 6, 7 law of 1895 held constitutional by U. S. Supreme Court 9 law of 1895 makes reasonable classification for taxation. .. .8, 9, 10 Illinois Act of 1895 imposing tax on transfer in contemplation of death is constitutional 90, 91 Surrogate Court will assume statute is constitutional 233 amendment of 1901 (111.) exempting charitable and religious be- quests constitutional 278, 279 law of 1895 tax gift in contemplation of death. (See Transfer.) Section 9 is 159 CONSTITUTIONAL POWERS: Legislature may tax property transferred by will and gift. .31, 90-91 Legislature may create taxable transfer by exercise of power.112, 113 discrimination between lineals and collaterals 137 discrimination between beneficiaries not unreasonable 137, 138 INDEX. 447 CONSTRUCTION OF STATUTES: Page. when in favor of tax payer 15 when against tax payer 15 exemption will not be presumed — construction against claimant. 123 CONTEMPT PROCEEDING FOR NON-PAYMENT OF TAX. (See De- linquent Tax.) CONTINGENT ESTATES. (See Contingent Transfer.) CONTINGENT INTERESTS: (See Contingent Transfers.) appraisable, even though not presently taxable 199 CONTINGENT TRANSFERS: when not taxable 254, 255, 272 origin of Section 25 256 are presently taxable 256, 257 shall be assessed at highest rate 258, 259, 260 when payment at highest rate diminishes corpus 263, 264, 265, 266 CONTRACTS: contract on land in Michigan owned by non-resident taxable in Michigan 78 for sale of land in Nebraska, owner of land non-resident 84 CORPORATIONS. (See Stocks and Bonds — Section Nine.) COUNTY COURT: has plenary power to determine all questions relating to tax- ation 185, 186, 230 has power to construe a will for the purpose of fixing tax. .185, 186 construction of will conclusive only as to taxation 186 when State not bound by construction of will 186 may issue commission to take evidence 187, 231 may compel witnesses to testify 187 county in which deceased died resident has jurisdiction 230 county in which property is located 230 merits of cause do not determine 230 fundamental power of court determines 230 COUNTY JUDGE: has sole right to appoint appraiser ? 178 fixes the tax 178, 179 appeal from County Judge *s order 178 who may appeal from County Judge 's order 178 duty is to appoint appraiser 180 448 INDEX. COUNTY JUDGE — Continued: Page. mandamus will lie to compel appointment of appraiser 180 County Judge may appoint on his own motion .180, 181, 182 duty to appoint on his own motion if facts justify 180, 181, 182 duty to appoint appraiser when property application is made.. 183 has original jurisdiction to fix tax 184, 186 is assessing and taxing official 184, 230, 231 fixes the tax * ' as of course " 184 fixes the tax without hearing argument on appraiser's report. 184, 185 order of tax must be entered forthwith 185 objection to order of tax cannot be made previous to entry 185 objections to appraiser's report cannot be argued before the County Judge as such 185 has power to determine all questions relating to taxation. . . .185, 186 is invested with plenary powers in matters of assessment . 184, 185, 186 may appoint appraiser whenever occasion may require 187 may compel witnesses to testify 187 not precluded from taxing property previously escaping tax- ation 187, 188 order of tax is final if not appealed from 188, 189, 190 order of tax cannot be modified, except on appeal 189, 190 cannot review excessive valuation on petition, appeal neces- sary 189, 190 order of tax can only be reviewed on appeal 191, 192 order of tax cannot be amended 192, 193 order of tax not reversible on motion 193 order of tax is a decree of court 193, 194 County Judge acts judicially in entering order of tax 194 County Judge's notice of tax presumed to have been served... 194 must enter order according to direction of court of review 195 may appoint appraiser before claims are ascertained 200 County Judge first taking jurisdiction 231 real estate in several counties 231 County in which donee of power resides 232 when decedent dies non-resident 232, 233 COUNTY TREASURER: is only ofl&cial designated to receive tax (Sec. 6. L. 1909). Treasurer of each county shall collect and pay taxes to State Treasurer 241 County Treasurer receives receipt from State Treasurer 241 reports to Auditor of Public Accounts 241 INDEX. 449 COUNTY TREASURER— Continued: Page. liable in penalty for failure to pay State Treasurer 241 must remit taxes to State Treasurer within reasonable time.. 241 remittance to State Treasurer can be enforced by mandamus. . . . 241 time of report to auditor distinguished from time of remittances of money 241, 242, 243 has no interest in funds collected save commissions 243 COURT OF CLAIMS: decision of court of claims on refund of tax 418 opinion of Griflath v. State of Illinois 418 CREDITS. (See Property.) CUHTESY. (See Dower.) D DECREASE IN VALUE. (See Depreciation.) DEDUCTIONS: extravagant sums for monument and burial expenses not allowed under Roman law 2 money paid to compromise will contest not a deduction 17, 18 money paid to prevent litigation not deductible 17, 18 dower and curtesy valued and deducted from corpus of estate (N. Y.) 37 Ante-nuptial contract creates debt deductible 40 mortgage on land is deduction 49 payment of federal tax not a deduction in state proceeding. ... 82 payment of tax in one state not a deduction in another 82 when property of non-resident equalled by indebtedness 83 in general 210 a debt enforceable against estate a deduction 210 must be proven 210 costs of administration 210 funeral expenses 210 executor or administrator fees 210, 214 attorney 's fees 210 attorney's fees defending will 210, 211, 212 clerk 's costs in probate 210 mortgages and liens 210 interest on indebtedness 210 amount of administration fees 210 agreed fees of administration 211 450 INDEX. DEDUCTIONS— Continued: Page. when no fees 211 claims of non-residents 211, 212 claim for deduction must be presented at appraisement 213, 221 evidence sufficient to support claim 213 commissions of administrator may be estimated 213 real estate taxes 214 general revenue taxes 215 when not deductible 215 trustee 's commissions 215 mortgage not deductible from personalty 216 inheritance tax not deductible 216 federal tax not deductible 216 cost of burial lot 216 claims allowed as deductions subsequently defeated cannot in- crease estate for taxation 217 doubtful claim not deductible 217 unliquidated claim not deductible 217 note in litigation 217 legal services for construction of will 217 expense of litigation between beneficiaries 218 ante-nuptial contract does not create debt 218 when non-resident 's property is appraised 218 prorated in non-resident estate 218 when chargeable to assets at domicile of non-resident 219 apportionment between exempt and taxable property 219 when co-tenant furnishes money for improvements 219 expense of monument cannot be deducted 375 DEFINITIONS: transfer defined 31 the word * * costs' ' defined 238 definition of *' charity" and ''benevolent'' 282 DELINQUENT TAX: County Court shall issue summons to show cause 234 State 's Attorney shall prosecute collection 234 Inheritance Tax Attorney shall prosecute collection 234 proceeding for collection same as in Probate Court 234 Surrogate may force payment 235, 236 may force payment by committal for contempt 235, 236 objection to assessment cannot be raised in delinquent proceed- ing 236 liability of executor not determinable under Section 16 (N. Y.) 236 INDEX. 451 DEPOSIT TO STOP INTEREST ON TAX: Page. deposit can not be made with the County Treasurer to save dis- count 144, 366 deposit cannot be made with County Treasurer to stop inter- est 144, 366 deposit to secure consent to transfer securities and property. (See Section Nine, under Practice and Procedure.) DEPOSITARY. (See Section Nine.) DEPRECIATION IN VALUE (See Increase) : depreciation in value after death does not affect value as of death 202 misappropriation by executor does not void a tax 203 DISCOUNT: (See Deposit to Stop Interest.) taxpayer entitled to 5 per cent, of tax assessed if payment made within six months of death. (See Section 3, Tax Law.) DISTRIBUTION FOR TAXATION. (See Tax.) DOMICILE: Governs the succession of personal property wherever located. .16, 17 governs taxation of chattels without the state 45 personal property without the state taxable 45 DOUBLE TAXATION. (See Tax.) DOWER: right of curtesy does not pass by will or intestate laws and is not taxable (N. Y.) 18, 19 must be valued and subtracted from corpus of property— remain- der only taxable (N. Y.) 37 not taxable under New York law 37 taxable in Illinois 38 dower passes by intestate laws 38 dower is a succession regulated by statute- 38 E EDUCATIONAL. (See Exemptions.) EQUITABLE CONVERSION: does not apply to inheritance tax cases 43 real estate in foreign state directed to be converted into person- alty not taxable *. . . 43 ERRONEOUS. (See Assessment — Refund of Tax.) 452 INDEX. ERRONEOUS PAYMENT. (See Refund of Tax.) Page. EVIDENCE: (Also see Burden of Proof.) proof must identify property alleged to have been transferred by death 200 when deposit in name of husband and wife 201 must show income reserved to make transfer taxable 201 EXCESSIVE VALUATION. (See Valuation— Appeal.) EXECUTORS. (See Administrators.) EXEMPTION: One claiming must point to the law sustaining it 122, 123 relates to share of beneficiary and not to total estate of decedent 122 an exemption will not be presumed 123 not favored 123 construction against claimant 123 husband of daughter who died before testator 125 when husband of deceased daughter is re-married previous to death of testator 126 husband of a daughter who died before testator 125, 126 widow of adopted son is widow of a son 126 child of person to whom decedent stood in relation of parent.. 129 limited by Illinois Act of 1909 130 elements necessary to constitute relation of parent and child. . . . 130 burden of proof is upon person claiming exemption 130 lineal descendant of uncle, aunt, niece or nephew exempt $2,000. 133 five hundred dollars a limitation, not an exemption, under Sec- tion 1 134 no exemptions or exceptions from the law prior to 1901 277, 278 amendment of 1901 not retroactive in favor of charitable insti- tutions 278 Section 28 applies to only domestic corporations 279 Foreign education corporation taxable 278, 279 definition of charity 282 public charity — what constitutes 282 religious corporation when organized under law of foreign state. . 283 United States a foreign corporation 284 Foreign religious corporation holding property in taxing state . . . 284 foreign charity with branch in taxing state 285 foreign charity bequest to local branch 286 conitruction favors exemptions of charitable bequest 286 corporation, educational in part 286 INDEX. 453 EXEMPTION— Continued: Page. municipal corporation not exempt 287 bequest for saying mass (111.) charitable bequest 287 foreign corporation property without taxing state 289, 290 Y. M. C. A. — when exempt 290 when beneficiary of first class receives $100,000 or less 125 when the same receives over $100,000 125 when beneficiary of second class receives $20,000 or less 132 when same receives over $20,000 132 when beneficiary of third class receives less than $500 133, 134 when beneficiary of third class receives $500 and over 133, 134 FATHER. (See Exemption.) FEES AND COSTS: (See Clerk of County Court— Sheriff— State's Attor- ney.) People not chargeable with 227, 228 FOBMS: composition agreement 391 petition for appeal from County Judge 's order 395 order allowing appeal from County Judge ^s order 396 bond in appeal to County Court 396 order appointing appraiser 397 oath of appraiser 398 appraiser 's notice of hearing 399 report of appraiser 399-403 order fixing tax of County Judge 403 County Judge 's notice of tax 404 County Judge 's certificate of mailing notices 405 administration afl&davit, Springfield district 308 no administration affidavit, Springfield district 310 notice for transfer of securities and other property 313 Form "SS" 313 form notice for consent to transfer property 313 Chicago district Form '*A^' administration affidavit 316 Chicago district Form "N'^ no administration affidavit. .. .318, 319 petition for no tax 354, 355, 356, 357, 358, 359 order of no tax 361 454 INDEX. G GENERAL REVENUE LAW: Page, decisions under not parallel in inheritance tax cases 19 GIFTS PRIOR TO DEATH. (See Transfer.) GRANDCHILD. (See Exemption.) GRANDMOTHER: is not lineal descendant 131 GUARDIAN: special guardian, when unnecessary 276 when necessary 276 H HISTORICAL: tax established in Rome 2 Roman tax referred to in Gibbon 's ' ' Roman Empire ' ' 2 Holland 3 England 3 British Colonies 3 United States, evolution of federal inheritance tax law 3 United States, no federal inheritance tax law 3 Magoun v. Illinois Trust, etc., 170 U. S. 283, reviews history of legislation 9, 10 HUSBAND. (See Exemption.) HUSBAND OF DAUGHTER. (See Exemption.) I ILLINOIS: First law in effect July 1st, 1895 4 amendment of 1901 6 Law taken from New York '. 4, 6 held constitutional by Illinois Supreme Court 6 First case on constitutionality 6 amendment of 1901 creates additional exemptions 13 amendment of 1901 added Section 21% to test taxability 13 Act of 1909 in force July 1st, largely taken from New York. ... 14 INCREASE: increase in value of property after death 202 INHERITANCE. (See Succession.) INSTITUTION. (See Section Nine.) INSURANCE. (See Life Insurance.) INDEX. 455 INTEREST: (See Deposit to Stop Interest.) Page, rate is 6 per cent from date of death until paid unless pay- ment within six months of death. (Section 3, Tax Law.) 5 per cent, rate used to value life estate and annuity. (Sec- tion 2, Tax Law.) runs until tax is paid 366, 367, 368, 374 no defense to collection of interest 374 when interest on tax begins to run 141 rate of interest on tax 141 is chargeable from date of death 142, 143 County Court cannot grant release from payment of 142, 143 determined by law in force at death of testator 144 on estates postponed for taxation 144 deposit to save interest and discount not allowable 144 INTESTATE LAWS: meaning of 15 INVENTORY: Attorney General has right to compel executor or adminis- trator to file inventory 197 State is entitled to inspect an inventory 197, 198 J JOINT STOCK ASSOCIATION: share is personal property 45, 202 JURISDICTION. (See Power of Appointment — County Court — County Judge.) property in New York transferred under a power exercised by non-resident donee to non-resident appointee 115, 116 mortgages held outside of New York transferred under a power by a non-resident 116, 117 appraisement of real estate in several counties, one appraiser . . 231 county in which donee of power resides takes 232, 233 LAWYER FOR APPRAISER. (See Appraiser and Appraisement.) LEASEHOLD INTEREST.: is personal property 45 LEGACY: to non-resident when chose in action not taxable 79 456 INDEX. LEGISLATIVE POWERS. (See Constitutional Powers.) Page. LIABILITY. (See Tax — Administrators.) LIEN OF TAX: (See Practice and Procedure.) interested party may file petition to test taxability 246 may be lifted by County Court in special proceeding. (See Practice and Procedure.) when tax is postponed 247 remains until tax is collected 247 prior lien to mortgage 248 when State estopped from collection 248 heir or beneficiary not relieved from liability 248 lifted from real estate only 248 bona fide sale of real estate lifts lien 248 executors, administrators, trustees or beneficiaries not relieved by statute of limitations 250 when statute is bar to assessment and collection 251 LIFE ESTATE: does not diminish value of property previously appraised in a subsequent appraisement 120 taxation of in previous appraisement not deductible in a subse- quent appraisement of the same property 120 when exempt from tax 136 method of valuation 138, 139 to be valued and deducted and not taxed 138, 139 value of when tenant predeceases appraisement 139 5 per cent, rate used to determine value. (Sec, 2, Tax Law.) LIFE INSURANCE: insurance payable to administrator, executor, etc., taxable 46 not taxable at home of corporation when policy owned by a non-resident 83, 84 LINEAL DESCENDANT: means direct descendants of decedent 123 child of adopted child is lineal descendant of decedent 126, 127 when not lineal descendant 127 does not include grandmother 131 lineal descendant of uncle, aunt, niece or nephew exempt $2,000 132 M MARKET VALUE: determined as of date of death 138, 204 excessive valuation not reviewable on petition 189, 190 INDEX. 457 MARKET VALUE — Continued: Page. large block of securities thrown on market 204, 206 sales of small blocks determine value 204 appraiser may consider quotations on exchange 204 private sales material 204 appraiser may use own knowledge 204 public sales material 207 synonymous with true value 207 fixed as of time of transfer 207 when no market, real value taken 208 good will earning capacity and assets of corporation 208 isolated record sales of stock 208 close corporation stock 208 when evidence of sales is not contradicted 208, 209 good will 209 range of market 209 MISAPPROPRIATION BY EXECUTOR. (See Depreciation.) MONEY. (See Property.) MORTALITY TABLES. (See Practice and Procedure.) valuation of life estates, annuities and remainders , . 342, 343, 344, 345 MORTGAGE: mortgage on land is deduction and not taxable 49 MOTHER. (See Exemption.) MUTUALLY ACKNOWLEDGED RELATION. (See Acknowledged Re- lation.) N NEPHEW. (See Exemption.) NEW YORK: Laws of 1885 and 1887 a tax on collaterals 4 amendment of 1891 extended tax to lineals 4, 5 constitutionality of law of 1885 4 Act of 1885 held constitutional by U. S. court 5 Act of 1885 did not cover non-residents' property 5 amendment of 1887 covers non-residents' property 5 Transfer Tax Act of 1892 not retroactive 19 NIECE. (See Exemption.) NON-RESIDENT. (See Power of Appointment — Bonds and Notes — Stocks.) New York Act of 1885 does not tax non-resident's property 5, 48 458 INDEX. NON-EESEDENT— Continued: Page, amendment of 1887, New York, covers non-resident's property.. 5, 48 when non-resident 's property taxable 48 when deceased prior to receipt of legacy property not taxable .... 79 deceased non-resident's interest in resident decedent's estate 80 a beneficiary in unliquidated assets 81 a credit of non-resident within taxing state 81 when non-resident's property equalled by indebtedness 83 owner of policy in New York not taxable 83 distribution of non-residents ' property cannot avoid taxation . . 84, 85 petition for no tax 360 recommendation to non-resident representatives of non-resident estates for facilitating business with Illinois tax authorities. (Practice and Procedure, Sec. 9) 330 NOTES. (See Bonds and Notes.) NOTICE: (See Appraiser and Appraisement.) County Judge's notice of tax presumed to have been served 194 O OBDEB OF TAX. (See County Judge.) P PABTNEBSHIP PBOPEBTY: when not taxable 79 when taxable 79 with the terms of section forbidding corporation or depositary to transfer 163 when assets in foreign state owned by resident of Illinois 390 non-resident partner— assets in Illinois 79 PAYMENT OF TAX: payment of federal tax not a deduction in taxing state 82 payment of tax in one state not a deduction in other taxing state 82 all taxes payable by executors, administrators and trustees 253, 254, 257, 258, 262, 263 when payment at highest rate diminishes corpus 262 payment on annuities out of residuum 262 payment on annuities is returnable by deducting from annuity. . . 262 by whom and from what property payable 263 when payable from income 263 when paid erroneously. (See Befund.) erroneous payment does not preclude subsequent taxation of same property 113, 114 INDEX. 459 Page. PAYMENT TO STOP INTEEEST. (See Deposit to Stop Interest.) cannot be made previous to assessment 144, 145 PETITION FOR APPEAL. (See Appeal.) PETITION FOR NO TAX. (See Proceeding to Quiet Taxability Under Practice and Procedure.) POSTPONED TAX. (See Tax) POWER OF APPOINTMENT: created by will effective prior to tax legislation and exercised after legislation 103, 109, 110, 112, 113 created by will effective prior to legislation, real estate con- verted into personalty before transferred 103, 104, 105 transfer is effected by exercise of the power 106, 107, 108, 110, 111, 112, 113, 114, 115 property not taxable until power exercised 106 Legislature has power to create taxable transfer by exercise of power 106, 107, 108 when situs of property immaterial 110, 111 when erroneous assessment does not preclude tax on transfer by exercise of power 113, 114 real estate in New York appointed by non-resident donee . . 114, 115 donee and appointee non-residents 115, 116 mortgages held outside of New York transferred under a power by non-resident 116, 117 when not exercised 117 when beneficiary takes under will and not under power 117, 118 when exercise of power is mere form, beneficiary takes under will creating power 118, 119 when appointee elects to take by will, instead of power 119 relationship of donee and appointee determines rate of tax 120 rate of tax governed by law in force at the time of the exer- cise of the power 120 title of appraisement 202 county in which donee of power resides has jurisdiction 232 when decedent died non-resident 232 PRACTICE AND PROCEDURE: (See Delinctuent Tax.) law in force at the time of appraisement determines procedure. 124 the general subject 297 first contact with inheritance tax law 297 460 INDEX. PRACTICE AND PROCEDURE— Continued: Section Nine. Page. basis for issuing consent, in general 301 administration of Section Nine 302 two districts for transacting business 302 Springfield district (all counties except Cook) 303 business transacted at Springfield, Illinois 302 Springfield jurisdiction 302, 303 book or record transfer of securities 302 transfer of money, Springfield district 302 transfer of other property, Springfield district 302 Chicago district, Cook County jurisdiction 303, 314 banks, trust companies, safe deposit companies, institutions hav- ing principal office in Cook County 303 corporations and associations having principal office in Cook County 303 depositary in Cook County 303 book or record of transfer of securities 303 inheritance tax attorney 303 collateral 303 corporations or associations having transfer books outside of the State of Illinois 305 railroads and other corporations doing interstate business 304 communication to wrong district 304 consent only lifts liability for tax and penalty 304 notice must be given by corporation or depositary 304 how to obtain consent — Springfield district 305 effect of administration 306 examination of boxes or property — Springfield district 306 emergency cases — Springfield district 306 transfer of securities — Springfield district 306 how to describe securities for consent 306 transfer of securities, deceased a non-resident — Springfield dis- trict 307 administration affidavit required — Springfield district 308 no administration affidavit required in Springfield district 310 form notices for transfer of securities — Chicago and Springfield districts 313^ form "SS" notice (transfer of property in general) 31$ all business transacted at Chicago 314 bank deposits, resident of Illinois 314, 315 bank deposits, non-resident 314 INDEX. 461 PRACTICE AND PROCEDURE (Continued) : Section Nine — Continued: Page. money other than bank deposits 314 transfer of money or property — what constitutes 315 bank deposit, no administration pending 317 immediate transfer before consent 315, 317, 318 bank deposit, non-resident 321 money securities, deposits or other assets excepting bank de- posits 321 effect of administration in Illinois on resident decedent 322 effect of no administration, resident decedent 322 security demanded for issuing consents 322 reports of examiners of property with depositary 322 when decedent is non-resident of Illinois 323, 324, 325 deposit to secure consent 325 deposit returned 325 delay in issuing consents 325 book transfers of stock and registered bonds, resident or non- resident .325, 326 registered bonds, id affidavit required in non-resident estates 326 safe deposit company 327 storage company 327 depositary 327 when consent issues 327, 328 emergency examination of property 328, 329 deposit system 329 non-residents — recommendation to 330 non-resident questions to be answered in non-resident es- tates 322, 330, 331 affidavit required in non-resident estates 331 mistakes in preparing affidavit 331 delay in receiving consents 332 Section Eleven. appraisement and appraiser 332, 335 in general 332 duty of attorney representing estate 332 investigation of estates 332 appraisement 332 evidence at tax hearing 332 special guardian 332 462 INDEX. PRACTICE AND PROCEDURE (Continued). Section Eleven — Continued: Page. appraiser 's report 332 hearing rooms for appraisements 335 hearing before appraiser, non-resident cases 336 hearing before appraiser, resident cases 336 facts uniformly necessary for record 336, 337 valuation of close corporation stock 338 appraiser's record in appraisement 338 evidence taken by court reporter 338 court reporters employed by inhertance tax office 339 cash value 339 when objections to appraiser's report can be argued 339 good practice in preparing inventories for appraisement 339 description of property in inventory 340 certificate number of shares of stock and serial number of bonds required in inventory 340 appraiser involuntary appointment 341 how value of life estates determined 341 how value of remainders determined 341, 342 mortality tables 342, 343 how to ascertain value of annuity or estate for life 343 how to ascertain present value of remainder 343 annuity, value of for fixed period 344 table for valuing annuity 344, 345 Appeals. appeal to County Court 345 trial in County Court de novo 346 appraiser's report as evidence in appeal cases 346, 347 appeals to Supreme Court 347 Proceeding to Quiet Question of Taxability. (Petition for No Tax.) any interested party may proceed in the County Court to the end of clearing question of taxability 248, 349 at least two methods offered for clearing taxability 349, 350 procedure for determining taxability under Section 11 351 meaning of ' ' property in this state " 351 meaning of "property within the meaning of this act" 351 interested party 352 INDEX. 453 PEACTICE AND PROCEDUEE— Continued : Page. proof required in no tax proceeding — general 353 description of property in inventory attached to petition 353 form petition for no tax 354, 355, 356, 357, 358, 359 non-resident decedent — petition for no tax 360 relation of parent to beneficiary 361 form order of no tax 361 suggestions to lawyers 363 entry of no tax order 364 O. K. 'd order of no tax 364 PRESUMPTION: it is presumed that the transfer of property is within the state . . 200 PROBATE COURT: Probate Court cannot discharge liability of legal representa- tive , 153, 154 approval of final account and report without payment of tax does not relieve executor or administrator from liability 154 may demand voucher showing payment of tax 154 PROCEDURE. (See Practice and Procedure.) PROCESS: service on interested parties is had by mailing notice 196 expense for service of summons 238 Sheriff cannot be reimbursed by State Treasurer 238 Attorney GeneraPs opinion on reimbursing Sheriff 238, 239 the word * ' costs ' ' defined 238 PROPERTY: real converted into personalty by testamentary direction 44 when real estate converted by direction is personalty 44 all property, real and personal, at domicile, taxable 44 leasehold interest in land is personal property 45 chattels without taxing state taxable 45 personal property without the state taxable 45 share in joint stock association owning real estate is personalty 45 insurance is property of decedent 46 when non-resident 's property ' ' within taxing state " 48 money of non-resident deposited two months in taxing state 75 money of non-resident in taxing state taxable 75, 76 capital of non-resident invested in New York taxable 78 share of resident in undistributed foreign assets not taxable property 80 464 INDEX. PROPERTY — Continued: Page. a credit of non-resident within taxing state 81 when property in several counties 231 PUBLIC ADMINISTRATOR: has no general duty to enforce tax law 383 must pay tax on succession to property in his hands 383 B BATES OF TAX: in general 27, 28, 29, 30, 31, 32, 123 to 134 inclusive is determined by relationship between donee and appointee of power 120 governed by law in force at time of the exercise of the power. . 120 determined by relationship of decedent to beneficiary 122 determined by law in force at the date of death of decedent 124 one per cent, class 123, 124 two per cent, class 123, 124 three to ten per cent, class 123, 124 rate when beneficiary of first class takes over $100,000. .123, 124, 125 rate when beneficiary of second class takes over $20,000,123, 124, 125 when highest rate assessable 258, 259, 260 REAL ESTATE: is taxable in state where situate 50 in several counties — where taxable 231 situate without Illinois not taxable 43 RE-APPRAISEMENT. (See Appraisement.) RECEIPT FOR TAXES: any person or corporation entitled to receipt 244 duplicate issued on payment of fifty cents to County Treasurer. 244 receipt to be sealed by State Treasurer 244 receipt must designate real estate 244 receipt may be recorded with clerk 244 filing of receipt in several counties 244, 245 RECORD: must disclose all material facts desired to be presented to court of review 200 REFUND OF TAX: County Treasurer cannot refund 170, 171 State Treasurer cannot refund without appropriation 171 INDEX. 455 REFUND OF TAX— Continued: Page. payment must have been made under duress or compulsion 171 court of claims awards refund for erroneous payment. .171, 172, 418 State Auditor cannot draw warrant for erroneous payment .... 172 interest cannot be recovered on refund unless provided by statute 172 interest cannot be recovered on refund in Iowa 172, 173 duty of the state in matter of refunds 173 REFUND OF TAX: on erroneous payment of tax 387 authority of auditor to draw warrant for refund 387 appropriation necessary for refund 388, 389 opinion of court of claims allowing refund 418 RELATIONSHIP: in transfer by power, relationship of donee and appointee de- termines rate 120 grandmother is not lineal descendant 131 RELATION OF PARENT AND CHILD. (See Acknowledged Relation.) RELIGIOUS. (See Exemption.) REMAINDERS: created prior to tax law not taxable 20, 21 vested as of date of death of decedent 32 title to be fixed at time of death of decedent 32 contingent remainder not presently taxable 35 when vested under law of 1895 35 when taxable 35 defeasible estates not taxable until indefeasible 35 created prior to tax legislation not taxable 36 method of determining 138, 139 when vested 254, 255 when contingent 255 when vested under prior enactment not affected by subsequent law taxing at full value 266, 267 value of life estate in previous assessment does not diminish property for valuation in subsequent appraisement 268 effect of prior valuation of postponed property on second ap- praisement 271, 272 REPEAL: amendatory act does not relieve vested interests 292 when repeal amounts to revision 292, 293 new enactment embodying same principles of law repealed. .293, 294 4:66 INDEX. EESIDENCE: Page. appraiser has power to determine 199 RETROACTIVE: transfer tax act of New York of 1893 not retroactive 19 amendment of 1901 (111.) 278 REVISION. (See Repeal.) S SAFE DEPOSIT COlNIPANy. (See Section Nine.) SECTION NINE (Also See Practice and Procedure) : is constitutional 159 litigation in Illinois involving 159 deposit box in possession of safe deposit company 160 corporation organized as safe deposit company 160 deposit company holding property of decedent is bailee 160 depositary must deliver contents to owner 160 state is part owner of contents of box 160, 161 state is part owner of securities, deposits or assets held by de- positary 160 state's interest in deposit of property is effective at the time of decedent 's death 161 state must receive notice 161 state must be advised of contents of box or deposit 161 depositary not deprived of constitutional right by requirement of notice 163 depositary has remedy 163 state has interest equal to beneficiary 163 interested parties are entitled to knowledge of contents of box 163 joint lessees 163* co-partnership property 163 act covering joint lessees constitutional 163 act covering partnership property constitutional 163 section does not impair obligation of charter of depositary... 163 section does not impair obligation of contract with lessees. 164, 165 depositary must not deliver until tax is paid 165 depositary not deprived of property without due process 165 depositary as tax gatherer 165, 166 unreasonable searches and seizures 167 property of safe deposit company not subject to public use without compensation 167 corporation liable for transfer of stock 168 INDEX. 457 SECTION NINE— Continued: Page. notice must be given by the depositary 168 notice must be given by tlie custodian of money or securities. 168 notice must be given by corporation, bank, trust company, insti- tution, association or person 168 penalty for non-compliance with the law 298 failure to serve notice 298 failure to allow examination 298 failure to retam tax 298 failure to secure consent to transfer 298 liability of depositary 299 liability of corporation 299 liability of association 299 estimation of tax 300 retention of property to cover tax 300 last will and codicils not property within the meaning of Sec- tion Nine 168, 169 meaning of transfer of property within the section 169 Attorney General and State Treasurer have right to examine property in possession or control of depositary 163 to 169 CONSENT TO TRANSFER PROPERTY. (See Practice and Procedure.) SECTION TWENTY-FIVE (Also See Contingent Transfers) : origin of 256 is constitutional 258, 259, 260, 261 contingent transfer taxable 258 to 261 SECURITY FOR TAX: Section Two provides bond may be given by beneficiary not in actual enjoyment 140 SERVICE. (See Process.) SHERIFF. (See Process.) SISTER. (See Exemption.) SITUS (See Stocks, Bonds and Notes) : of property transferred by power, when immaterial 110, 111 SPECIAL GUARDIAN. (See Guardian.) STATE: i] ;;;;^;2;^ is interested as beneficiary in all transfers by death, etc 14 state's interest accrues at death of decedent 14, 37 state's interest is a vested interest, equal to beneficiary's.... 14 when not bound by construction of will 186 468 INDEX. STATE'S ATTORNEY: Page, fees in general 366 STATE TREASURER. (See County Treasurer; Refund of Tax.) STATUTE OF LIMITATIONS. (See Lien of Tax.) STEP-CHILD. (See Acknowledged Relation— and Transfer.) STOCK ASSOCIATION. (See Joint Stock Association— and Section Nine.) STOCKS: share in joint stock association is personal property 45 of domestic corporation certificates in Illinois taxable, decedent non-resident 51 of foreign corporation certificates in Illinois owned hy non- resident not taxable 51 of domestic corporation taxable 53 certificates and owner's residence without state 54, 55, 57 non-resident ownership does not relieve from tax 54 share of stock represents property at home of corporation . 53, 54, 55 situs for taxation 55 owner's residence and certificates without New Jersey not tax- able therein 55, 56 owner's residence, certificates and sole administration without taxing state 57 when corporation has property in two states taxable at full value 58 wben corporation is organized in one state, property in several states 59 corporation organized in two states, taxable on proportion 59 proportion of property in two states determined on mileage 63 proportion is determinable by percentage of property 63, 64 place of deposit of certificates of foreign corporation does not determine taxability 65, 66 organized in two states, proportion taxable 64, 63 domestic corporation requires administration at home of corpora- tion 64 of national banks taxable 64, 65 foreign situs of certificate does not determine taxability 65, 66 of foreign corporation taxable at domicile of owner 65, 66 national bank taxable in state of location of bank 66 of foreign corporation not taxable 68 certificates without the state taxable in state of incorporation . . 71 STORAGE WAREHOUSE. (See Section Nine.) INDEX. 469 SUCCESSION (See Stocks, Bonds and Notes — Domicile — Power of Appointment) : tax is on succession and not on property 4, 6, 7, 10, 21 governed by the law of the state 6 laws of descent and right to devise owe their existence to statute law 6 right to inherit and devise dependent on legislation 6, 10, 14 state can tax right to inherit 6, 7 may impose conditions on right of succession 7 governed by law of domicile of decedent 16, 17 tangible property of resident in foreign state 16, 17 cannot be changed by compromise 17 succession accrues at death of testator 37 dower is a succession taxable in Illinois 38 chattels and other personalty without the state taxable at dom- icile 45 SUGGESTIONS TO LAWYERS: ^ in no tax proceeding 363 SUMMONS. (See Process.) SUPREME COURT: when state 's Supreme Court final on matters of taxation 22 of United States, when construction of state court followed 222 T TABLES OF VALUATION. (See Mortality Tables.) TAX (See Contingent Transfers) : is on succession and not on property 6, 7, 9, 10 classification for taxation when reasonable 12, 13 three classifications in Illinois act 13 governed by statute in force at death 15 distinction between inheritance tax and general revenue law. . 19 when postponed 34, 35, 380 contingent interest necessitates postponement of tax 34, 35 contingent remainder not presently taxable 35 tax payable at decedent 's death 35 cannot be assessed on remainder created prior to tax legislation 36 defeasible estates postponed for taxation 35 right of state to tax accrues at death of decedent 37 corporation organized in two states, apportionment for taxation 63 470 INDEX. TAX — Continued: Page, may be collected from successions to same property in two states . 74, 75 double taxation (so-called) constitutional 74, 75 when property pro rated 85, 86 executors cannot reduce tax by arbitrary distribution 85, 86 taxation of life estates does not diminish tax on same property in subsequent appraisement 120 accrues at death of decedent 121, 380 is on beneficial interest 121 does not accrue on rights effective prior to tax legislation 122 when tax accrues 141 when due and owing 141 paid by whom 142 tax proceeding is one at law 177 when due and legally demandable 247 a prior lien to mortgage 248 heir or beneficiary not relieved from liability 248 all taxes presently payable 253, 254, 255, 256, 257, 258, 259, 260, 261 payable by executor 253, 254 is assessed as of date of death of decedent 278 TAX PROCEEDING. (See Practice and Procedure.) TAXATION. (See Tax.) TITLE OF APPRAISEMENT CASE. (See Appraiser and Appraise- ment — ^Power of Appointment.) TRANSFER (Also See Contingent Transfers and Constitutional Power of Appointment and Partnership): transfer by will prior to tax legislation not taxable 20, 21 defined 31 date of determines rights of beneficiaries 31 date of is determined by death of decedent 31 right of determined by date of transfer .' 31 time of fixed by death of decedent effecting transfer 32 title to remainder effected at date of death 32 uncertainty of beneficiary does not affect time of 33 acceptance is necessary 32 motive of transfer immaterial 32 when object is to pay a debt 32, 33 when widow accepts devise in lieu of dower under will 32, 33 INDEX. 471 TRANSFER— Continued: Page. trustees ' fees joined with annuity 33 must be something of value 34 worthless account 34 gift inter vivos when not perfected 42 when in contemplation of death 86, 87, 88, 89, 90 when not in contemplation of death 91, 92 to take effect after death 92, 93, 94 a writing not necessary to evidence retention of income 92 oral arrangement retaining income on transfer prior to death. 92, 93 prior to death, when not taxable 94, 95 prior to death, when taxable f 96 to take effect at or after death 96, 97, 98, 99 retention of income on transfers prior to death 96, 97, 98, 99, 100 reservation of income transferred by oral arrangement 100 prior to death, when not taxable 100 transfer intended to defeat tax does not void transfer 101 taxable as of the date of death of donor or grantor 101 prior to inheritance tax legislation, when taxable 101 miscellaneous cases of transfers prior to death 101, 102 act taxing gift in contemplation of death constitutional 90, 91 to child of adopted child 123 to widow of adopted son 126 to child adopted under law of foreign state 126 to children of adopted child 126, 127 to step-child widow 's award 38, 39 to step-child 130, 131 ante-nuptial contract to make will 40 dower. (See Dower.) of stocks. (See Stocks.) of bonds and notes. (See Bonds and Notes.) of credits. (See Property.) of land contracts. (See Contracts.) to husband of daughter who died before testator 125 to husband of deceased daughter who remarried previous to death of testator 126 to United States 284 to charitable, religious, educational or benevolent use 278, 284, 285, 289 to corporation educational in part 287 for saying masses 287 472 INDEX. TRANSFER— Continued: Page. to Y. M. C. A of foreign real estate 43 to grandmother 131 property in N. Y. transferred under power of non-resident donee to non-resident appointee 115, 116 mortgages held outside of N. Y. transferred under power by non-resident 116, 117 when non-resident beneficiary dies before N. Y. assets are dis- tributed 79 of non-resident's interest in resident decedent's estate 80 of credit in N. Y. owned by non-resident 81 of chattels without domiciliary state 45 of insurance 46 TREASURER. (See County Treasurer.) TRIAL. (See Appeal — Practice and Procedure.) TRUST COMPANY. (See Section Nine.) TRUSTEES: fees of, when coupled with annuity 33 personally liable for the inheritance tax 149 U UNCLE. (See Exemption.) UNITED STATES: foreign corporation and taxable 284 when taking as beneficiary 284 V VALUATION (See Market Value) : cannot be reviewed on motion or petition 189, 190, 221 VALUE. (See Market Value — Depreciation in Value — Increase.) W WAREHOUSE. (See Section Nine.) WIDOW. (See Exemption.) WIDOW OF ADOPTED SON. (See Exemption.) WIFE OF SON. (See Exemption.) WIDOW OF SON. (See Exemption.) INDEX. 473 WILLS (See Section Nine): Page. does not need consent to transfer under Section Nine 384 may be removed without permission of Attorney General and State Treasurer 384 WITNESS. (See County Judge and County Court.) WORTHLESS ACCOUNT: not taxable 34 when insolvent beneficiary not taxable on worthless account owing to decedent 34 INDEX TO SECTIONS OF INHERITANCE TAX LAW. Sections of Law of 1895 Amd. 1901. Section. Page. 1 Succession — Transfer — Exemptions — Bates 405 2 Life Estates Exempt — Eemainders — ^Bond 406 2% Exemptions to Eeligious — Educational — Charitable Uses.... 408 3 Accrual — Discount — Interest 408, 409 4 Administrators — Executors — Trustees . 409 5 Executors — Administrators and Trustees have Power to sell property 410 6 Tax Payment and Eeceipt 410 7 Information to County Treasurer 410 8 Eefund 411 9 Transfer of Property by Foreign Executor or Administrator 411 10 Eefund 411 11 Appraiser — Appraisement — County Judge — Appeal 411, 412 11% Fees of Clerk — Inheritance Tax Clerk 413 12 Misconduct of Appraiser 414 13 Jurisdiction 415 14 Delinquent Tax 415 15 Delinquent Tax 415 16 Information Concerning Property Taxable 416 17 Summons 416 18 Eecords 416 19 Eemittance of Taxes to State Treasurer 416 20 Commissions of County Treasurer 416 21 Duplicate Tax Eeceipt and Filing 417 21% Settling Question of Lien 417 22 Lien of Tax — ^Limitation 418 23 What Eepealed 418 Sections of Law of 1909. 1 Transfers — ^Power of Appointment — Exemptions — ^Eates 27 2 Valuation of Life Estate — Eemainder — Eate — ^Lien 135 3 Accrual — Discount — Interest 141 [475] 476 INDEX TO SECTIONS. Section. Page. 4 Administrators— Executors Trustees to Collect and Pay Tax 146 5 Liability for Tax 148 6 Payment of Tax — Eeceipt 153 7 Information to County Treasurer 155 8 Eefund 156 9 Transfer of Property by Safe Deposit Co., Trust Co., Cor- poration — ^Bank, etc., Notice to State Officers — Reten- tion of Tax — Consent 157 10 Erroneous Payment 170 11 Appraiser — Appraisement — Valuation — County Judge — Ap- peal 176 12 Fees of Clerk — Inheritance Tax Clerk 225 13 Misconduct of Appraiser 229 14 Jurisdiction 230 15 Delinquent Tax Collection 234 16 Delinquent Tax Collection 234 17 Information to County Treasurer 237 18 Summons and Disbursements 238 19 Records 240 20 Remittance of Tax to State Treasurer 241 21 Commissions of County Treasurer 244 22 Duplicate Tax Receipt — ^Filing in Counties where Real Es- tate is situate 244 23 Settling of Question of Lien 246 24 Lien — Statute of Limitation 247 25 Transfers Presently Taxable — Tax Presently Payable 253 26 Compromise of Tax 274 27 Special Guardian 276 28 Exemption of Religious — Educational — Charitable, etc., Transfers 277 29 Transfer 291 30 Certified Copies of Papers 291 31 What Repealed 292 UNIVERSITY OF CALIFORNIA LIBRARY THIS BOOK IS DUE ON THE LAST DATE STAMPED BELOW ^257550