Heller v. Department of Revenue

North, C. J. The Michigan inheritance tax statute in part provides: “Sec. 2. First, (a) Where the person or persons entitled to any beneficial interest in such property shall be the grandfather, grandmother, father, mother, husband, wife, child, brother, sister, wife or widow of a son, or the husband of a daughter * * * such transfer of property of the clear market value of 5,000 dollars shall be' exempt from all taxation-under this act; * * * “Second. In case the clear market value of the property transferred to each individual of the persons included in the classes specified in paragraph 1 hereof exceeds the exemptions specified in para- — 195 — graph. 1, such exemptions shall first he deducted therefrom; when the clear market value of such property shall not exceed 50,000 dollars before deducting such exemptions the transfer of such property in excess of the exemptions herein provided and up to said 50,000 dollars shall be taxed under this act at the rate of 2 per centum of the clear market value thereof.” CL 1948, § 205.202 (Stat Ann 1950 Rev § 7.562). Plaintiff, Charles J. Heller, under facts about to be noted, asserts that incident to fixing the inheritance tax on a bequest to him in the will of Florence Atherton, deceased, he is entitled to the statutory exemption of $5,000 provided in section 2, subd First (a), and to the so-called preferential rate of 2% provided in section 2, subd Second, of the statute. The defendant, Department of Revenue of the State of Michigan, contends that plaintiff is not entitled to the $5,000 exemption or to the preferential rate. If plaintiff’s contention is correct,, the inheritance tax against the property he would take under the will of Florence Atherton would amount to $393.40, but otherwise it would be in excess of $2,500. The circuit court held with plaintiff. Defendant has appealed. Decision herein turns upon whether plaintiff comes within the statutory designation of “husband of a daughter” of testatrix, who died in 1950; or whether, on the contrary, since he became a widower upon the death in 1946 of the daughter, Hazel E. Heller, his former wife, he must be held to be the “husband” of a deceased daughter of testatrix and not within the statutory designation of one who, upon fixing the inheritance tax, is entitled to the statutory $5,000 exemption and the preferential rate of 2%. In determining what is the proper construction of the controverted portion of the statute, we must first look to the context of the statute itself. In doing so — 196 — a persuasive reason for holding in accord with plaintiff’s contention at once appears. In designating what persons are entitled to the exemption and the preferential rate, the statute • reads: “Husband, wife, (and in the next line) * †* * or the husband of a daughter.” Obviously as to an inheritance or bequest to a “husband” or “wife” the statutory provision would be entirely meaningless unless the word “husband” were construed to mean widotoer, and the word “wife” to mean or include widow. Hence, it seems almost inescapable that when in the next' line of the statute the words “husband of a daughter” appear, “husband” as there used should be held to include or be synonymous with widower. Further, originally the Michigan inheritance tax law* was copied in substance from the New York statute† in which there was used in like context the identical words in controversy in the instant case; and prior to the enactment of the Michigan statute it was adjudicated in New York that the phrase “husband of a daughter” was intended to include a widower whose spouse had predeceased the testator. “A legacy to the husband of a daughter of the testator is not subject to taxation under L 1885, c 483, although the daughter died before the testator.” Matter of Woolsey (1887), 19 Abb NO 232 (6 Demarest’s NY Reports 145). In another New York case, which antedated the 1899 Michigan statute, in passing upon an 1892 New York statute pertaining to inheritance taxes, the. holding was: “Laws 1892, c 399, § 2, exempting from the transfer tax a legacy to the ‘husband of a daughter’ of — 197 — testator, includes the husband of a deceased daughter, though he has remarried.” In re Ray’s Estate (NYS syllabus), 13 Misc 480 (35 NYS 481). In the body of the Bay Case the court also said: “The word ‘husband’ or ‘surviving husband’ has become so imbedded in our statutes and in all legal phraseology that it has the same force and meaning and the same legal effect as if he had been described as ‘widower.’ If the legislature had intended not to use the word ‘husband’ in the same sense as it has always been used by the laws of this State and by its courts, it would have made its meaning clear, definite, certain, by saying the ‘husband of a daughter, if she be living.’ By omitting to restrict this exemption to a husband whose wife was living, it seems very clear that the word ‘husband’ is here used in its general and accepted sense, which not only common usage but the statutes of this State make use of, and. as the word is ordinarily used and understood in speaking of a surviving ‘husband.’ ” It is true that the above-noted New York decisions were by surrogate courts, which are not courts of last resort. But no appeal to a reviewing court was taken and for years these decisions seem to have stood as the law of New York, without conflicting decisions so far as we have been able to ascertain, and without any modifying legislation prior to 1930. We are mindful that incident to amending numerous particulars of its inheritance tax statute in 1930, the New York legislature modified the phrase “husband of a daughter” to read as follows •: “The husband or a widower of a daughter.” But that circumstance affords no convincing reason for holding that the prior interpretation of the statutory words was not as intended by the enacting legislature. The amplification of the statutory words may as well have been for clarification as for modification. At least for many years the judicial interpretation seems to have — 198 — been accepted without legislative action to void such interpretation. The court of last resort in each of the States ¿bout to be noted has held in accord with the New York decisions. While these courts make some comment concerning the provisions of the New York inheritance tax law and pertinent earlier decisions of New York courts, other reasons are also assigned in support of the conclusions reached. “In the provision of section 1 of the inheritance tax act of 1909 fixing the rate of tax and the exemption as to near' relatives, the term ‘husband of the daughter’ includes the husband of a deceased daughter of the donor. (Syllabus.) * * * “It is true that, as generally defined, the word ‘husband’ means a man having a wife, and does not include a widower or a man whose wife has died and who has not remarried, but it is also true that the word ‘husband’ is often used as synonymous with ‘widower’ or ‘surviving husband.’ It is so used in the very section of the act under consideration.” People v. Snyder, 353 Ill 184 (187 NE 158; 88 ALR 1012). The supreme court of New Jersey has interpreted •in the same manner a like statutory provision. It held: “The phrase ‘husband of a daughter,’ in Pamph L 1909, p 326, § 1, exempting from inheritance taxation property passing to the husband of a daughter, includes within its meaning the surviving husband of a deceased daughter, even though he subsequently married.” Clay v. Edwards, 84 NJL 221 (86 A 548). In the annotation found in 88 ALR 1016, the writer states: “The decision of the reported case (People v. Snyder (Ill), ante, 1012), that the low rates applicable to the ‘husband of the daughter’ are intended for the — 199 — widower of a daughter, although the latter predeceased the testator, harmonizes with practically all of the direct authority on this point which has been found.” "We are aware that a contrary holding will be found in Ohio and in Maine. See Tax Commission of Ohio v. Hirsch, 31 Ohio App 325 (167 NE 400), and Canal National Bank of Portland v. Bailey, 142 Me 314 (51 A2d 482). However it should be noted that the Ohio decision is not by a court of last resort; and as to the decision by the Maine court, there is some room for noting a distinction because that decision seems to have turned upon the fact that the widower for whom the bequest was made had remarried prior to the death of the testator, and had a wife still living at the time of the testator’s death, and therefore was not the “widower” of the testator’s daughter, within the statute prescribing, rate of inheritance tax on property passing to a widower. Plaintiff in the instant case had not remarried. In any event, to the extent that the decisions just noted are inconsistent with our holding herein, we decline to follow them. In this jurisdiction no court of last resort has passed squarely upon the controverted issue presented in the instant case. In briefs of the respective counsel 2 Michigan decisions are cited: In re Rhead’s Estate, 288 Mich 220, and In re Gay’s Estate, 310 Mich 226. Neither of these decisions is squarely in point or materially helpful in deciding the exact issue involved herein. But as an indirect sidelight, it may be noted that in the Rhead Case 'we: quoted with approval the following: “ ‘The word widow indicates the person, not the state, and is used as synonymous with wife.’ Georgia Railroad & Banking Co. v. Garr, 57 Ga 277 (24 Am Rep 492).” — 200 — However, a reason for sustaining plaintiff’s position in the instant case which may well be considered as more persuasive than any hereinbefore mentioned arises from the following circumstance. In numerous sections of the Michigan statutes of descent and distribution (CL 1948, § 702.80 et seq.; and CL 1948, § 702.93 et seq.) the word “husband” is used in context where it must include widoiver, or be synonymous with widower, otherwise the statutes become wholly meaningless and void.* We have not found in this jurisdiction a case wherein such an incongruous construction as an opposite holding would necessitate has been urged as to any of our statutes governing the descent or distribution of property, and wherein “husband” is designated but obviously meaning ividower. In the Michigan statutes of descent and distribution the word widower is rarely, if ever, used. Like comment might be made of the statutory use of the word “wife” when from the context widow is clearly intended. We conclude that as used in the context of the statute involved in the instant case the phrase, “or the husband of a daughter” includes plaintiff, who is the widower of a deceased daughter of the testatrix. The judgment entered in the circuit court is affirmed, with costs to appellee. Hethmers, Btjtzel, Carr, Btjshnell, and Reid, JJ., concurred with North, C. J. Footnotes [*] PA 1899, No 188, § 2. See, also, PA 1893, No 205, § 2. This latter act was held unconstitutional in Chambe v. Judge of Probate, 100 Mich 112. [†] NYL 1887, ch 713, § 1. See, also, prior statute, NYL 1885, eh 483, § 1. [*] “If the intestate shall leave a husband or widow and no issue, •J of the estate of such intestate shall descend to such husband.” CL 1948, § 702.80, subd Second (Stat Ann 1943 Rev § 27.3178[150]). Soo, also, CL 1948, §§ 702.51; 702.52; 702.82; 702.93, par 5 (Stat Ann 1943 Rev §§ 27.3178 [121], 27.3178 [122], 27.3178 [152], 27.3178 [163]).