The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-07-09
INHERITANCE TAX CASE
The Attorney Generals Brief
Submitted to the Court.
AN IMPORTANT MATTER
The Decision Will Apply to Many Other
Estates Beside the Davis-The
Estate Given Ten
Days.

An important matter relating to the
inheritance tax due from the Davis
estate, and which applies to many other
estates as well, had been set for hear
ing before Judge Lindsay yesterday on
motion to have the court modify an
order made some time ago as to the
amount of tax the estate should paw
out the attorneys agreed to submit the
matter on briefs. The attorney general
claims that the estate should pay about
$4,000 more than it has been ordered
to pay. County Attorney Connolly
yesterday submitted the. attorney gen.
erals brief on the question, which reads
as follows:
THE inheritance tax law provides
that all property which shall pass by
will, or by the intestate laws of this
state, or which shall pass by deed,
grant, sale or gift made in the contem-
plation Of the death. of the grantor,
shall be subject to the tax specified
This inheritance tax law has been con-
sidered by the supreme court of this
state and it's constitutionality upheld
In the case of Gelsthorpe VS.. Furnell a
full discussion of the law was INDUCED
in, and it was held that the tax was
not a tax upon property, but that 1t
was tax upon the right to receive
property rather than the right to dis
pose of it. If the property in question
was disposed of by will the amount paid
would be the correct amount. 1t is true
that the will was admitted to probate,
but no disposition of the property was
made pursuant to the terms of the will.
John A.. Davis was made the sole de-
" hIyt he II n faI
to probate John "A. Davis himself died.
The admission of the will to probate
was consequent upon a stipulation en-
tered into between the parties who
claimed right to share in the distribu-
ton of the estate. A division of the
property did not take place by virtue
of the provisions of the will, but the
property was divided pursuant to the
terms of the stipulation entered into,
and undoubtedly without which stipu
lation the will would not be admitted
to probate. If the will were operative
so that John A. Davis would be vested
with the title to the property, the tax
could only attach to the personal prop
erty passing by the will. In this in
stance, however, the property does not
pass to John A. Davis or to his legal
representatives. The property passes
to the distributes, and passes not by
virtue of the provisions of the will, but
pursuant to the terms of the stipula-
ton entered into. 1t seems to me that
this stipulation governing the distribu-
ton of the property supplants the will,
so that the will may be entirely elimi-
mated from our consideration in deter
mining whether the property belonging
to Mr.. Davis is subject to the provisions
of this inheritance tax law, and to what
extent it is so subject. If the property
passed under the will the title to same
would vest in the representatives of
John A. Davis, deceased and John A.
Davis having died intestate the prop
erty would pass pursuant to the laws
of this state. This. however, is not the
manner of its devolution. The persons
entitled to receive under the will in or
der to share in the distribution of the
property surrendered their rights un-s
der the will and agreed to divide the
property amongst those who, if the will
We're admitted to probate, and its pro-
visions enforced, would not be entitled
to share in the estate at all. AS already
seen, the theory of the tax law is that
1t Is burden imposed upon the right
to receive the property The will in
this instance, although admitted to
probate, is a dead letter. Its probation
could not have occurred if the stipula-
ton was not entered into modifying
and controlling its terms. The stipula-
ton supplants the will, and it is sconso-
nant with reason that the distribution,
as made, pursuant to the stipulation,
is the distribution that will be consid-
cred to determine the amount of the
inheritance tax rather than the provts-.
ions of the will The direct heirs are
designated by the law, and thesauthori-
ties unanimously hold that nephews
and nieces under law such as ours are
collateral heirs, and the distributiSe
shares of the estate passing to such
nephews and neces are properly
chargeable with the S per cent. tax
provided for on personal property
where the amount is in excess of $500"
Mr. Connolly also stated to the court
that the attorneys would agree on a
stipulation as to the relationship of the
distributes to the estate. The attorney
for the estate was granted 10 days in