Tax Commission v. Commerce Guardian Trust & Savings Bank

Richards, J. This case involves the amount of inheritance taxes to be fixed and determined on the estate of Elmer Henry Close, who died testate on August 7, 1924. The net estate subject to inheritance tax is $1,165,343.24. The probate court fixed and determined the amount of inheritance taxes to be assessed, and the judgment of that court was affirmed by the court of common pleas. *333 The Tax Commission of Ohio, not being satisfied therewith, prosecutes error to this court. The testator left a widow, Nell K. Close, a daughter, Suzanne G. Close, aged 18 years, and a son, Joseph K. Close, aged 16 years. He also left surviving him his father, sister, two nephews and a niece. The will names the Commerce Guardian Trust & Savings Bank as executor, and after making disposition of the furniture, pictures, etc., to the wife, and jewelry to the son, devises and bequeaths all the residue of his estate, real and personal, to said bank as trustee, to be held and managed in accordance with the provisions and trusts mentioned in the will. Item 6 of the will directs the trustee, as soon as the property comes into its hands, to cause the same to be appraised and to divide it into three equal parts. Item 7 provides that one of said parts is to be set aside for the benefit of the testator’s wife, one for the benefit of his daughter, and one for the benefit of his son. By item 8 of the will the trustee is directed to pay to the wife monthly, quarterly, or semiannually the entire net income from the part so set aside to her. By item 9 it is provided that upon the death of Mrs. Close the property passing to her should be divided into two equal parts for the -benefit of the children, not, however, to be delivered to them until the son should reach the age of 40 years, but to constitute a part of the trust fund until such age is reached. Item 10 of the will provides in substance that the trustee should pay to the son quarterly the net income from the part of the estate set aside for bim; until he should arrive at the age of 40 years, except *334 that when he arrives at the age of 25 years the trustee shall pay him 10 per cent, of the principal, when he arrives at the age of 30 years, 20 per cent., and when he arrives at the age of 35 years, 30 per sent. This item of the will further provides that when the son arrives at the age of 40 years the trust shall cease and determine and the trustee shall thereupon pay and deliver over to the son all the property then constituting the subject-matter of the trust for his benefit, to be his thereafter absolutely. Similar provisions are made for the benefit of the daughter, except that the disbursements of principal to her are to be governed by the age of the son. The will further provides that in the event of the death of either of the children without issue before the termination of the trust, the part remaining in the trust fund for the benefit of such child shall pass to the survivor, and that if either of the children should die before the termination of the trust, leaving issue, the share of such deceased child should be held in trust for the benefit of his or her children until the youngest arrives at the age of 21 years, and then be paid to them. Most of the controversy in this case arises over the construction of item 14 of the will, which reads as follows: “In the event that both of my children die without issue before the death of my wife and before the termination of the trusts created for the benefit of said children or of the survivor of them, then the property theretofore retained in trust for the benefit of said children or the survivor of them shall be paid and delivered over to such persons as would inherit the same from me under the laws *335 of Ohio relating to the descent and distribution of property of intestates; and if my wife survive both of ¡my children and my children shall have both predeceased my wife, leaving no issue, them or either of them surviving, then upon the death of my wife the property theretofore retained in trust for her benefit shall likewise be paid and delivered over to such persons as would inherit the same from me under the laws of Ohio relating to the descent and distribution of property of intestates.’' No controversy exists with relation to the tax properly chargeable against the bequest to the widow and son of furniture, jewelry, etc., nor is there controversy as to the tax chargeable against the life estate of the widow given in one-third of the fund. The probate court fixed the value of the remainder in two-thirds of the estate conditionally passing to the widow at $176,995.38, and fixed the tax thereon against her at the lowest rate. The judgment in the probate court also found the value of the income for life in one-third of the estate, going to the son conditionally, to be $295,729.31, and assessed the tax thereon at the lowest rate against the son. A similar finding was made as to the daughter. The court also found the value of the remaining one-third after the life estate cf the widow and the estates of- the son and daughter, which would or might pass to the testator’s sister, and fixed the tax thereon. The contention of the plaintiff in error is that, aside from the tax on the small unconditional legacies and the life estate of the widow, the tax must be imposed upon the conditional successions at the highest rate, under a temporary order, pursuant *336 to the provisions of Section 5343, General Code, the material parts of which read: “When, upon any succession, the rights, interests, or estates of the successors 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 such successions at the highest rate which, on the happening of any such contingencies or conditions, would be possible under the provisions of this subdivision of this chapter, and such taxes shall be due and payable forthwith out of the property passing, and the probate court shall enter a temporary order determining the amount of such taxes in accordance with this section * * *.” The statute above quoted uses the word “successions,” and that word is defined in Section 5331, General Code, as meaning the passing of property in possession or enjoyment, present or future. The will of the testator disposes of the property to the trustee in trust and directs its division into three equal parts for the benefit of the widow and children. The will then contains appropriate provisions for divesting the estates on certain contingencies. In other words, the estates given may be “created, defeated, extended or abridged” as provided in the will and as contemplated by the provisions of Section 5343, General Code. A careful examination of the statute leads to the conclusion that the contingencies provided for in the will are precisely of the character contemplated by this section of the statute, and therefore that the estates and interests held on condition must be taxed by a temporary order against the executor, as contemplated by that section. *337 Item 14 of the will provides for certain contingencies which may happen and would require that the property should pass to such persons as would inherit the same under the laws relating to the distribution of property of intestates, and it can easily be seen that these contingencies may occur. The time of distribution contemplated by the testator was clearly not at the death of the testator, but when such events happen. 2 Page on Wills (2d Ed.), Section 941; Stearns v. Brandeberry, 9 Ohio App., 300. In event the sister, nephews, and niece should predecease the beneficiaries named in the will, and the son and daughter should die without issue, then it is apparent that the estate would pass to those more remote than the sister, nephews, and niece, in which event the tax collectible would be at the highest rate provided by statute. Wonderly, Gdn., v. Tax Comm., 112 Ohio St., 233, 147 N. E., 509, is a case in many respects strikingly similar to the one at bar, and the principle there announced, relating to taxation by temporary order, is controlling in this case. While it does not appear in the opinion in that case just what was done with reference to taxing the estate given to the son, Wilbur E. Kingseed, yet we have before us the printed record in the case, from which it appears that the only tax assessed against the beneficiaries was upon the absolute and unconditional bequests to the sisters and brother, and that all the remainder of the estate, which was subject to the contingency of Wilbur E. Kingseed dying before arriving at the age of 25 years, without leaving issue, was taxed, under Section 5343, General Code, *338 by way of temporary order against the executor. That rule should be followed in the case at bar. The remainder subject to tax by temporary order is $946,690.88, to be taxed at the highest rate provided by statute. Of course, if it should develop on the happening of the contingencies that the ultimate succession would be taxable at a lower rate, there should be a refunder pursuant to the provisions of the statute. The judgments of the lower courts will be reversed and the tax fixed and determined in accordance with the principles herein announced. Judgments reversed. Culbert and Williams, JJ., concur.