In re Estate of McDougall

Holt, J. The probate court held that no inheritance tax should be paid upon the value of the homestead of Alexander McDougall, who died a widower leaving two children to whom he devised and bequeathed all his property, share and share alike, with the exception [394] of $60,000 placed in trust for specific objects. In the course of the administration of the estate and upon application of the children, who were both of age, the homestead was set over to them under the provisions of sections 7307 and 7308, G-. S. 1913. The appraised value thereof was $22,000. This ruling of the probate court is here for review on certiorari. The arguments of the attorney general are so forcible and persuasive thht, were the question one of first appearance, the imposition of a transfer tax upon the value of the homestead might be sustained. But we think our prior decisions on the subject lead to an affirmance of the ruling of the court below. In the Pettit Case, 137 Minn. 238, 163 N. W. 258, L. R. A. 1917F, 436, we held, in substance, that the allowance to which a widow was entitled out of the estate of her deceased husband, in the course of its administration, did not pass to her as a privilege of inheritance by will or the intestate laws and was not subject to the tax. No homestead was involved in that case. However, in the Estate of Murphy, 146 Minn. 418, 178 N. W. 1003, 179 N. W. 728, it was squarely decided that the value of the life estate of - the widow in her husband’s homestead should be set aside to her without the payment of the transfer tax, even though the fee thereto passed to her under her husband’s will. Two legislatures have sat since that decision was rendered, without any legislation indicating a disapproval of this court’s interpretation of the inheritance tax statute excluding from its operation the widow’s life estate in the homestead. In re Estate of Ekstrum, 159 Minn. 231, 198 N. W. 459, the holding of the Murphy case was adhered to and extended so as to include not only the life estate of the widow in the homestead, but the title in fee thereto which passed to her upon her husband’s death, there being no surviving children nor issue of any deceased child, the probate court, in the course of the administration of her husband’s estate, having set aside the homestead to her. The practical reasons for following the Murphy ruling are there well stated. But the attorney general invites the court to make a dis [395] tinction between the statutory right of a widow to have the homestead set apart to her and that of children, in that the former cannot be deprived of her rights by the husband, but that by deed or will he may utterly destroy a child’s claim to this statutory right. We do not think the legislature • intended to rest the burden of paying a transfer tax upon the right to have the homestead set apart to the proper person upon the nice distinctions growing out of the proposition whether the decedent could or could not have destroyed the right. The object of the statutory provisions, permitting certain property of the estate of a spouse or parent by an order of the court to be withdrawn therefrom, in the course of the administration, and set apart to the surviving spouse or children and, when so set apart, to be regarded as no longer a part of the estate for which the administrator or executor is accountable, was, as stated in the Murphy case, “the promotion of the comfort and welfare of the widow and children after the death of the husband and father;” and therefore we think no .distinction should be made between the kind of property allowed. A like reason exists for not burdening the right of the children to the homestead with a transfer tax when the widow, had there been one to receive it, would go free. The decision of the probate court is affirmed.