#### Estate of Carter: State, Appellant, vs. Carter, Administrator, Respondent.

*February 7*

March *5, 1918.*

*Appeal:'Affirmance: Equal division in appellate court: Inheritance tax: “Property or estate partly within and partly without this state."*

A judgment of a circuit court affirming a judgment of a county court — to the effect that sub. 5, sec. 1087 — 11, Stats., did not apply to the estate of a resident of another state who died leaving an estate located partly in that state and partly in Wisconsin, and that the inheritance tax to be paid by those entitled to receive the estate in Wisconsin should be determined precisely as if the decedent’s estate consisted only of the property located here — is affirmed, this court being equally divided on the question.

Appeal from a judgment of tbe circuit court for Winnebago county: Geo. W. BueNEll, Circuit Judge.

*Affirmed.*

Tbe appeal is by tbe *State of Wisconsin*from a judgment of tbe circuit court in all things confirming a judgment of tbe county court determining tbe inheritance taxes due on the transfer of tbe estate of Benjamin F. Carter, deceased, late of Los Angeles, California.

Tbe case involves tbe interpretation of sub. 5, sec. 1087— 11, Stats., wherein provision is made for tbe apportionment of debts, expenses, and exemptions in “an estate which is partly within and partly without this state.”

Tbe county and circuit courts held' that this section of tbe statute did not apply to Mr. Carter’s estate, which was located partly in Wisconsin and partly in tbe state of California, where be resided at tbe time of bis decease. In ascertaining tbe amount of tbe inheritance tax to be paid by those entitled to receive tbe estate in Wisconsin tbe lower courts determined tbe tax precisely as they would have done bad Mr. Carter’s estate consisted only of tbe real and personal property located in Wisconsin. Tbe *State*asked that this tax be *90determined, according to the rule prescribed by sub. 5, sec. 1087 — 11, Stats.,, in cases of transfers of any property or estate partly within and partly without this state.

For the appellant there was a brief by the *Attorney General*and *E. E. Brossard,*assistant attorney general, and oral argument by *Mr. Brossard.*

Eor the respondent there was a brief by *Williams & Williams*of Oshkosh, and oral argument by *George E. Williams.*

SiebecKee, J.

Mr. Justice OweN, by reason of having had charge of this case as attorney general of the state before becoming a member of this court, did not participate in the hearing • and decision of this case. The court, after careful consideration of the question involved, is equally divided. Justices ViNJE, RoseNbebby, and Esci-iweileb are of the opinion that the judgment of the lower courts should be affirmed, and Chief Justice WiNsnow, Justice KebwiN, and the writer are of the opinion that the judgment should be reversed. This situation, under the established rule, necessitates affirmance of the judgment appealed from. *Hagenah v. Milwaukee E. R. & L. Co.*136 Wis. 300, 116 N. W. 843.

*By the Court.-*— The judgment of the circuit court is affirmed. No costs to be taxed in favor of either party. The appellant to pay the clerk’s fees.