Pulliam v. Thrash

*639 Bobbitt, J. The arguments presented deal largely with whether the court’s finding that Polansky is “in the position of a bona fide purchaser for value without notice more than two years after the death of Mrs. Dorsett,” is supported by evidence; and if so, whether Polansky is protected by the provisions of G.S. 28-83. In our view, other factors control decision. We are not concerned with whether, as between the State of North Carolina and Polansky, the additional inheritance tax assessment was a lien on his interest in the Buncombe County lands until paid. G.S. 105-20, G.S. 105-31. The tax has been paid. The question here is whether, as between him and the three devisees, Polansky is obligated for the payment of any part thereof. Our statutes impose inheritance taxes upon transfers of property by will, by intestate laws or in contemplation of death. G.S. 105-2. The amount of the tax is determined on the basis of the value of the property so transferred to each beneficiary. G.S. 105-4, et seq. The obligation of a devisee to pay the tax assessed on the property transferred to him by will is primary. G.S. 105-15, G.S. 105-18, G.S. 105-20. No provision is made for the assessment of inheritance taxes on a different basis because, pursuant to a contract made by the devisees after the testator’s death, the ultimate disposition differs in whole or in part from that prescribed by the will. In 36 A.L.R. 2d 917, the subject annotated is this: “Succession, estate, or inheritance tax as affected by compromise of will contest.” There is a conflict of authority, due in part to diversity in statutory provisions. The annotator states: “The majority view appears to be that in this situation the succession tax is computable in accordance with the terms of the will, unaffected by the compromise agreement.” Fidelity & C. Trust Co. v. Commonwealth, 241 Ky. 656, 44 S.W. 2d 603, 78 A.L.R. 710, is one of the cases cited as authority for the majority view. The Commissioner of Revenue assessed the inheritance taxes involved here in accordance with that view. So far as the record shows, neither the executor nor the devisees contested the assessment. The will having been established by verdict and judgment, it must be regarded as valid ab initio. In Bailey v. McLain, 215 N.C. 150, 1 S.E. 2d 372, 120 A.L.R. 1487, this Court, in opinion by Seawell, J., quotes with approval these two excerpts from Fidelity & C. Trust Co. v. Commonwealth, supra: “Whilst the legatees could not receive the property under the will until it was duly established, neither could the heirs inherit the property unless the will was set aside.” Again, speaking of the caveator: “While his right to maintain the contest of the will is derived from his relationship to the testator, his title to the money came from the contract with the legatees.” *640 Liability, if any, of Mrs. Wolfe or of Polansky to pay any part of the devisees’ primary obligation in respect of inheritance taxes must be based on contract, express or implied. See Bailey v. McLain, supra. Whether Mrs. Wolfe, by her contract with the devisees, became obligated to pay one-fourth of the amount of the inheritance taxes, is not presented for decision. She has no interest in the proceeds derived from the sale of the Buncombe County real estate. It is clear that Polansky made no agreement, express or implied, with the devisees or with Mrs. Wolfe, to pay any part of the inheritance taxes. Indeed, as indicated above, Mrs. Wolfe’s covenant with Polan-sky was to the effect that he acquired her interest in the Buncombe County real estate free from any obligations of the estate of Carolyn Thrash Dor sett. The order of the court below is Affirmed.