Estate of Merrifield v. People

Mr. Justice Hand delivered the opinion of the court: It is provided by section 1 of the Inheritance Tax act, (Hurd’s Stat. 1903, chap. 120, par. 366,) that all property, real, personal and mixed, or any interest therein or income therefrom, which shall be transferred by “deed, grant, sale or gift, made in contemplation of the death of the grantor or bargainor, or intended to take effect in possession or enjoyment after” the death of the grantor or bargainor, shall be subject to a tax, etc. In construing this act in Kochersperger v. Drake, 167 Ill. 122, it was held the inheritance tax was not the imposition of a burden upon the property itself, but upon the right of succession thereto. From the admitted facts in this case it is clear no consideration was paid Leonard B. Merrifield by Mary C. Merrifield, Louis W. Merrifield or Lilla M. Wood for the conveyances and transfers made to them, respectively, of said property, but that the same was conveyed and transferred to them to place the title thereto in them prior to the death of Leonard B. Merrifield. It is therefore clear the transfers to each of them by him were gifts, and we think it equally clear said transfers were made by Leonard B. Merrifield in contemplation of death. The statute provides in case of gifts, an inheritance tax shall be collected if (1) the gift was made in contemplation of the death of the donor, or (2) was intended to take effect in possession or enjoyment after the death of the donor. It will be observed, however, the statute does not provide the donee of property shall be liable for an inheritance tax, but only provides he.shall be liable for an inheritance tax when the transfer is made in contemplation of the death of the donor. It is urged that the stipulation found in the record to the effect that the transfers to Mrs. Merrifield and to Louis W. Merrifield and Lilla M. Wood were absolute, that they were accepted by them, that they entered into the possession and ownership of the property transferred to them, respectively, and that after said transfers were executed Leonard B. Merrifield had no interest in the property, shows that the transfers were gifts inter vivos and not gifts causa mortis, and that the title to the property vested in said donees during the life of Leonard B. Merrifield, and that the donees are not liable to pay an inheritance tax by reason of the transfers of said property to them. We think the stipulation may be given full force and effect, and that it may be conceded that the transfers were absolute, and that after the execution and delivery thereof the title vested in the donees thereof absolutely as against Leonard B. Merrifield, and still the person receiving said property be held liable to pay an inheritance tax by reason of such transfers. The stipulation does not state the transfers were not made by Leonard B. Merrifield in contemplation of death. In the eye of the law the transfers may have been absolute and yet have been made by Leonard B. Merrifield in contemplation of death, and if so made the donees are liable to an inheritance tax. In other words, a gift inter vivos, if made in contemplation of the death of the donor, will subject the donee, under the statute, to the payment of an inheritance tax, while if made not in contemplation of death it would not. It is said, however, by appellants, that a transfer of property made without consideration, in contemplation of death, is a gift causa mortis, and that the stipulation is that the gift was absolute, hence it could not be a gift causa mortis, as a gift causa mortis is conditioned upon the death of the donor. A gift causa mortis, strictly speaking, applies only to personal property, and -the gift is defeated if the donor recover. In this case the subject matter of the transfers was both real and personal property, and the transfers were absolute, and not upon the condition that they should be revocable in case of the recovery of the donor. They were, however, made in contemplation of his death. They fall, therefore, more nearly within the description gifts inter vivos made in contemplation of death, than within the designation gifts catisa mortis. While no witness testified, and it was not stipulated, that the transfers were made in contemplation of the death of Leonard B. Merrifield, the county court properly reached the conclusion from the admitted facts that the transfers were made by Leonard B. Merrifield in contemplation of death. This is a new question in this court. We have examined the authorities cited and relied upon by the appellants from other States, and are of the opinion nothing is found therein incon-' sistent with the views herein expressed when applied to a case like this. If, however, it is held therein that the donee of property is not liable to pay an inheritance tax by reason of the fact, alone, that the transfer to him was absolute, although made in contemplation of the death of the donor, we are not disposed to be governed by them in giving a construction to our own statute, as we think it clear the statute in force in this State will not bear such construction. -The judgment of the county court will be affirmed. Judgment affirmed.