{ "id": 1561061, "name": "McDaniel, State Treasurer v. Byrkett", "name_abbreviation": "McDaniel v. Byrkett", "decision_date": "1915-10-11", "docket_number": "", "first_page": "295", "last_page": "302", "citations": [ { "type": "official", "cite": "120 Ark. 295" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "21 Idaho, 258", "category": "reporters:state", "reporter": "Idaho", "case_ids": [ 2308104 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/idaho/21/0258-01" ] }, { "cite": "34 L. R. A. (N. S.) 1161", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": -1 }, { "cite": "137 S. W. 924", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "124 N. Y. Supp. 863", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 7665061 ], "opinion_index": -1, "case_paths": [ "/nys/124/0863-01" ] }, { "cite": "122 N. Y. Supp. 584", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 7661791 ], "opinion_index": -1, "case_paths": [ "/nys/122/0584-01" ] }, { "cite": "137 Am. Dec. 866", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": -1 }, { "cite": "79 N. Y. Supp. 382", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 7677221 ], "opinion_index": -1, "case_paths": [ "/nys/79/0382-01" ] }, { "cite": "39 Misc. 220", "category": "reporters:state", "reporter": "Misc.", "case_ids": [ 1813491 ], "opinion_index": -1, "case_paths": [ "/misc/39/0220-01" ] }, { "cite": "34 Pa. 204", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 418038 ], "opinion_index": -1, "case_paths": [ "/pa/34/0204-01" ] }, { "cite": "122 N. Y. Supp. 608", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 7662019 ], "opinion_index": -1, "case_paths": [ "/nys/122/0608-01" ] }, { "cite": "87 N. Y. Supp. 731", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 5825147 ], "opinion_index": -1, "case_paths": [ "/nys/87/0731-01" ] }, { "cite": "42 Misc. 648", "category": "reporters:state", "reporter": "Misc.", "case_ids": [ 1819965 ], "opinion_index": -1, "case_paths": [ "/misc/42/0648-01" ] }, { "cite": "118 La. 212", "category": "reporters:state", "reporter": "La.", "case_ids": [ 2628149 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/la/118/0211-01" ] }, { "cite": "31 Ark. 576", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1879221 ], "opinion_index": -1, "case_paths": [ "/ark/31/0576-01" ] }, { "cite": "19 Ark. 440", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "8 Ark. 9", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726799 ], "opinion_index": -1, "case_paths": [ "/ark/8/0009-01" ] }, { "cite": "100 Ark. 175", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1312216 ], "opinion_index": -1, "case_paths": [ "/ark/100/0175-01" ] }, { "cite": "33 L. R. A. (N. ,S.) 230", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": -1 }, { "cite": "59 L. R. A. 807", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": -1 }, { "cite": "49 Atl. 1050", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "95 Maine 259", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 672908 ], "opinion_index": 0, "case_paths": [ "/me/95/0259-01" ] }, { "cite": "172 S. W. 1032", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "116 Ark. 400", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1532222 ], "opinion_index": 0, "case_paths": [ "/ark/116/0400-01" ] }, { "cite": "1 Coldw. 14", "category": "reporters:state", "reporter": "Cold.", "opinion_index": 0 }, { "cite": "29 L. R. A. (N. S.) 428", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "108 Pac. 280", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "21 Idaho 259", "category": "reporters:state", "reporter": "Idaho", "opinion_index": 0 }, { "cite": "127 Am. St. Rep. 1063", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "153 Cal. 359", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 1982120 ], "opinion_index": 0, "case_paths": [ "/cal/153/0359-01" ] }, { "cite": "20 L. R. A. (N. S.) 207", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "5 Ark. 608", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727791 ], "opinion_index": 0, "case_paths": [ "/ark/5/0608-01" ] }, { "cite": "189 Ill. 472", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5571525 ], "opinion_index": 0, "case_paths": [ "/ill/189/0472-01" ] }, { "cite": "100 Ark. 179", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "79 N. Y. Supp. 382", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 7677221 ], "opinion_index": 0, "case_paths": [ "/nys/79/0382-01" ] }, { "cite": "122 N. Y. Supp. 608", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 7662019 ], "opinion_index": 0, "case_paths": [ "/nys/122/0608-01" ] }, { "cite": "87 N. Y. Supp. 731", "category": "reporters:state", "reporter": "N.Y.S.", "case_ids": [ 5825147 ], "opinion_index": 0, "case_paths": [ "/nys/87/0731-01" ] }, { "cite": "59 L. R. A. 807", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 0 } ], "analysis": { "cardinality": 716, "char_count": 15123, "ocr_confidence": 0.457, "pagerank": { "raw": 3.7001196056546456e-07, "percentile": 0.8928800482190274 }, "sha256": "2d904d662c1fa6b31e9d8ba2e87fb77907b51e00134852b4821d5a026c278077", "simhash": "1:d92774048426fcd9", "word_count": 2752 }, "last_updated": "2023-07-14T19:47:48.789730+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "McDaniel, State Treasurer v. Byrkett." ], "opinions": [ { "text": ".Smith, J.\nThis was ia proceeding begun in the probate court of Lawrence County to collect the inheritance tax alleged to be due upon the dower interest of a widow in the estate of her deceased husband. A demurrer wias sustained to a petition praying that this dower be .appraised and taxed, both in the probate court and in the circuit court, 'and this appeal has been duly prosecuted from the order\u2019 of the court below dismissing the petition.\nThe question presented for our decision is whether dower is .taxable under the Inheritance Tax Act .approved March 31, 1909, the same toeing Act No. 303 of the Acts of 1909.\nAuthority for the collection of this tax is said to toe found in section 1 of the above mentioned act, which reads as follows:\n\u201cAll property within .the jurisdiction of this State, and any interest therein, whether belonging to inhabitants of this State or not, or whether tangible or intangible, which shall pass toy will or by the intestate laws of this State, or by deed, grant, sale or gift made or intended to take 'effect in possession after .the death of the grantor to .any person or corporation in trust or otherwise, shall be liable to tax for the use of the State at the rate hereinafter specified.\u201d\nIt is thoroughly well settled by the decisions of this court, and all other courts which have construed similar statutes, that this legislation is not a tax on the property of the estate of the deceased person, but is a tax laid upon the privilege or right of succession to 'that property. State v. Handlin, 100 Ark. 179, and oases cited. And the courts are likewise agreed that as this is a special tax the laws imposing it are to be construed strictly against the government and favorably to the taxpayer. Crenshaw v. Moore, 137 S. W. (Tenn.) 924; English v. Crenshaw, 127 American State. Reports, 1025.\nThe Supreme Court of Illinois in the case of Billings v. People, 189 Ill. 472, 59 L. R. A. 807, held that the wife\u2019s dower interest is taxable under the Inheritance Tax law of that State, and this decision has \u00a1been followed in subsequent decisions in that State. But the opinion in the Billings case, supra, set out the statute of that State upon the subject of dower, from which it appears that the estate of curtesy has been abolished in that State, find that dower has been given alike to the husband and the wife, each being given a certain fixed interest in the lands of the other upon the death of either spouse. This estate is called dower, but it is not the dower of the common law, /as the term \u201cdower\u201d\u2019 at common law relates exclusively to the interest the widow had in the real estate of inheritance, for it was out of that she was entitled to be endowed of the specific thing. Hill v. Mitchell, 5 Ark. 608; Encyclopedic Digest Ark. Reports, Vol 3, p. 620. In its opinion in the Billings case, supra, the Supreme Court of Illinois said:\n\u201cIt is contended, however, that whatever the power of the Legislature may 'be to control dower, or to impose burdens upon it, the act imposing ,a tax upon inheritance, when strictly construed, as it should be, does not include dower, because, it is said, dower does not \u2018pass by the intestate laws of this State,\u2019 and the act does not, by any necessary terms, include dower. There are no laws of this State which are specifically designated as \u2018intestate laws,\u2019 /and we are called upon to determine what laws or system of laws were referred to under that appellation by the act in question. The same term is employed in similar statutes in /other /state\u00ae, and we have no doubt the laws referred to are those laws of the State which govern the devolution of estates of persons dying intestate, and in-elude -all applicable rules of the common law in -force in this State. The statutes from which we have above quoted are intestate laws, and they govern, regulate, and control the interest which the widow, Augusta S. Billings, took in her husband\u2019s property at 'his -death. As a general rule, the property of persons dying passes in two ways \u2014 that is, iby will, or by -descent in the modes provided by law; and when it does not pass by will it generally passes by law \u2014 that is, by the law governing the disposition of property of persons -dying intestate.\u201d\nIt must be conceded that this language is against the views which we herein express, but it will be observed that the dower statute therein referred to is treated as an intestate law, and-this is not the view taken\"generally by the courts in construing dower statutes which are declaratory of the -common law o-r amendatory of it.\nThe Supreme Court of California, in the ease of re Estate of Moffit, 20 L. R. A. (N. S.) 207, 153 Cal. 359, held that the wife upon the death of the husban-d takes his half of the community property as heir within the meaning of a -statute taxing all property which shall pass by the intestate 'lawis from one who shall die -seized o-r possessed of the same. This case is sharply criticized in the note to the case of English v. Crenshaw, 127 Am. St. Rep. 1063, and also 'by Ross in his work on Inheritance Taxation, at page 84.\nIn the later case of Kohny v. Dunbar, 29 Am. & Eng. Ann. Cases 492, 21 Idaho 259, the -Supreme Court of Idaho expressly refused to follow the decision of the California court. The Supreme Court of Louisiana in the earlier case of re Marsal Succession, 42 Sou. 778, having already taken a contrary view.\nExcept in the states of Illinois iand California the \u25a0courts which have construed the Inheritance Ta-x laws of the respective states have held that the dower interest of the widow -does not pass under the intestate laws. The language of the various statutes is almost identical with the statute of this state insofar ias they relate to the question under -consideration.\nTm the later case of re Estate of Kennedy, 108 Pac. 280, 29 L. R. A. (N. S.) 428, the Supreme 'Court of California held (to quote the syllabus of that case) that \u201cThe statutory homestead and allowance set .apart iby the court to the family of a decedent, pending administration of his estate, are not within the provisions of a statute providing for ia succession tax on property which shall pass by will or-by the intestate laws of the State, and it is immaterial that had the property not been so set apart it would have passed to the widow under the will. \u2019 \u2019\nA leading 'and well considered case on this subject is that of Crenshaw v. Moore, supra, in which the Supreme Court of Tennessee construed a statute of that State identical -with our own in the employment of the phrase \u201cintestate laws of this State.\u201d It was there said-:\n^ \u201cNor do we think that the widow\u2019s dower is subject to this tax. By the common law, if the husband acquire an estate, which is subject to descend to his heirs, the wife, >at ithe same time the husband acquires his title, has vested in her the right of -dower; and although the husband aliened the estate, the wife\u2019s-dower would attach. By the acts of 1784 and 1823, carried into -Shannon\u2019s Code at section 4139, the widow is dowable in one-third part of .all the lands of which her husband died seized and possessed, or of which he was equitable owner. In all other respects, the widow\u2019s right of dower in this State is the same as it -was at common law. It has the same qualities as the common law right of dower, but its quantity was cut down by the statutes referred to. This right originates with the marriage. It is an encumbrance upon the title of the heir (at law, and is superior to the claims of the husband\u2019s creditors. Its origin is so ancient that neither -Coke nor Blaekstone can trace it, and it is as \u2018widespread as the Christian religion, iand enters into the contract of marriage among all Christians.\u2019 * * *\n\u201cSo, it is seen that, whether it be considered that the widow holds her dower in the nature of a purchaser from her husband by virtue of the marriage contract, or whether it be merely a provision of the law made for her benefit, it can not be considered that her right is in succession to that of her husband upon his death, or that the husband bestows it upon her in contemplation of death. While it is true that her right of dower is not consummated until the death of the husband, and that it is carved \u00a1out of only such realty as he owned at his death, it does not follow from this \u00a1premise that the widow succeeds to \u00a1Ins title by the intestate laws. She derives it by virtue of the marriage, and in her right \u00a1as wife, to be consummated in severlalty to her upon the death of her husband. Boyer v. Boyer, 1 Coldw. 14.\u201d\nOther cases on this subject are those of in re Rieman, 87 N. Y. Supp. 731; in re Weiler, 122 N. Y. Supp. 608; in re Page Estate, 79 N. Y. Supp. 382.\nIn the case of in re Page\u2019s Estate, supra, the court said:\n\u201cThe term \u2018intestate laws\u2019 is intended to cover the statutes of descents, which relates to the descent of real estate, and the statute of distributions, which provides for the 'distribution of the surplus of the personal property of \u00a1a decedent after the payment of his \u00a1debts and legacies, if he left a will, and \u00a1after the setting apart to the widow and minor children of the exemptions specified in section 2713.\u201d\nAnd in the case of In re Rieman\u2019s Estate, supra, it was said:\n\u201cA dower right is \u00a1an interest in real estate not subject to \u00a1a tax or to the testator\u2019s disposition and is, therefore, not a transfer of or a \u00a1succession to property of her husband. It is property which exists inchoately during her husband\u2019s life time, and passes to the widow regardless of the laws governing the disposition of property of a decedent by will or under the laws applicable to intestacy. \u2019 \u2019\nBlakemore and Bancroft, in their work on Inheritance Taxes, state the law, at page 95 of their treatise, as follows:\n\u201cProbably in most states dower or curtesy rights do not fall within the class of interests under the intestate laws subject to tax, although when dower is released 'and the property so released passed to taxable \u00a1beneficiaries the tax must be1 imposed on that property. \u2019 \u2019\nTo the same effect see Dos Pasts os on Inheritance Tax Laws, section 38, and Ross on Inheritance Taxation, section 56. In the last mentioned text at the section cited it is said:\n\u201cIt is true \u00a1that dower had its origin /and continuance by force of the law and depends upon the husband\u2019s death for its consummation. But it is quite another thing to \u00a1suppose that the estate is dependent upon the law of succession or owes its existence to any such transfer as the inheritance tax statutes contemplate. Dower comes to ia wife by virtue of \u00a1the marriage and death of the husband serves only to consummate, not to transmit, it. The law that confers dower on the widow is not the law that appoints the inheritable property of a decedent to designated heirs.\u201d\nIn this State the subject of dower has always constituted one chapter in the digest of the statutes, while the subject of descents and distribution has been covered - by a separate chapter. It is true that the chapter -on descents and distributions does contain a section showing what interests the -wife would take under the conditions there named, but that interest is not dower nor is it intended in lieu of dower.\nIn the case of Barton v. Wilson, 116 Ark. 400, 172 S. W. 1032, we had occasion to -construe section 2709 of Kirby\u2019s Digest. This section defines the widow\u2019s dower in the estate of a husband who is survived by no childrem It ivas there contended that the widow took as heir of her husband, but after reviewing and citing various authorities we quoted with approval from the -case of Golder v. Golder, 95 Maine 259, 49 Atl. 1050, the following language:\n\u201cThe Supreme Court of Maine, in construing a similar statute, says: \u2018The statute does not change the status of the widow with reference to her deceased husband\u2019s estate. It enlarges her interest by giving her an estate in fee instead of an estate fox life. She still takes, not as heir, but as widow.\u2019 \u201d\nThe \u00a1act under consideration provides for the payment of certain taxes by the wife, but that provision, of oonrse, applies only to property which she acquires in a manner to make iit taxable.\nWe .ooncilude, therefore, that the widow of a deceased person does not take dower us the heir of her husband, or by virtue of the intestate laws, hut that this estate is inimical to the claim of the heir arad is carved out of the estate of the deceased in spite of, and in derogation to, the rights of the heir under the intestate laws, and the judgment of the court below will, therefore, be affirmed.", "type": "majority", "author": ".Smith, J." } ], "attorneys": [ "Wm. L. Moose, Attorney General; Jno. P. Streepey, Assistant Attorney General, for appellant; Harry L. Ponder, of Counsel.", "W. P. Smith, G. M. Gibson and Lester L. Gibson, for appellee." ], "corrections": "", "head_matter": "McDaniel, State Treasurer v. Byrkett.\nOpinion delivered October 11, 1915.\n1. Inheritance tax \u2014 nature op. \u2014 The inheritance tax act, being Act 303, Acts 1909, is not a tax on the property of the estate of the deceased, person, but is a tax laid upon the privilege or right of succession to that property.\n2. Revenue \u2014 inheritance tax act \u2014 construction.\u2014The inheritance tax act, providing for a special tax, is to be construed stnictly against the government and favorably to the taxpayer.\n3. Dower \u2014 nature op estate \u2014 liability por inheritance tax. \u2014 The widow of a deceased person does not take dower as the heir of her husband or by virtue of the intestate laws, but the estate of \u2022 dower is inimical to the claim of the heir and is carved out of the estate of the deceased in spite of and in derogation of the \u25a0rights of the heir under the intestate laws, and the dower of a widow is, therefore, not subject to the inheritance tax assessed in Act 303, Acts 1909.\nAppeal from Lawrence Circuit Court, Eastern Dis-. trict; Bene H. Coleman, Judge;\naffirmed.\nWm. L. Moose, Attorney General; Jno. P. Streepey, Assistant Attorney General, for appellant; Harry L. Ponder, of Counsel.\nTbe dower interest is liable for tbe payment of an inheritance tax under our statutes. 59 L. R. A. 807; 33 L. R. A. (N. ,S.) 230.\nWhile the authorities are divided, the better reasoning appears to be with appellant\u2019s contention.\nW. P. Smith, G. M. Gibson and Lester L. Gibson, for appellee.\nThis is not a tax on property, but a itax on the right of succession thereto. 100 Ark. 175.\nThe widow\u2019s dower obtains by way of a lien created by and at the time of the \u00a1marriage and is paramount to the rights of creditors and purchasers. 5 Ark: 608; 8 Ark. 9; 19 Ark. 440; 31 Ark. 576.\nOne who takes by the intestate laws of the 'State takes by virtue of the statutes of descent and distribution, iand as \u00a1an hei'r. The widow of a deceased person does not take the dower or homestead estate as his heir or toy virtue of the intestate laws. Both these estates are inimical to the claim of the heir. They are Carved out of the estate in derogation of the rights of the heir, and are not liable tfor the payment of the inheritance \u25a0 tax. 108 Piac. 200, 29 \u00a1L. R. A. (N. S.) 428; 118 La. 212, 42 So. 778; 42 Misc. 648, 87 N. Y. Supp. 731; 122 N. Y. Supp. 608; 34 Pa. 204; 11 Pa. Cty. Ct. 1; 39 Misc. 220, 79 N. Y. Supp. 382; 137 Am. Dec. 866,122 N. Y. Supp. 584; 124 N. Y. Supp. 863; 137 S. W. 924, 34 L. R. A. (N. S.) 1161; 21 Idaho, 258; 121 Pac. 544, Atm. Cas. .1913 D., p. 492." }, "file_name": "0295-01", "first_page_order": 319, "last_page_order": 326 }