
    TAXATION OF FUNDS IN HANDS OF AN ADMINISTRATOR.
    [Common Pleas Court of Pike County.]
    John W. Gregg, Administrator, v. Philip Hammond et al.
    
    Decided, January, 1900.
    
      Taxation — Section 2734 Construed — Decedent’s Estates — Funds from Sale of Mortgaged, Premises — Must be Listed by Administrator.
    
    Funds derived by an administrator from the sale of mortgaged premises, and deposited by him in bank preparatory to payment to the mortgagees, should be listed by the administrator for taxation, notwithstanding the entire amount will be required to satisfy the liens which have been established and ordered paid.
    
      
       Affirmed by the circuit court May 23, 1900, without report.
    
   Collings, J.

There is no serious dispute between the parties as to the facts of the case. It appears that the plaintiff, administrator, had sold certain real estate of the intestate for the purpose of paying debts, which sale was confirmed April 2, 1895, and on that day about $30,000 of proceeds were ordered paid to the mortgagees of the intestate who were ascertained to have valid liens upon the premises. The money was not in fact paid over under the order of distribution but remained in bank to the credit of the administrator. The assessor returned the money as belonging to the mortgagees and subject to taxation as theirs. The auditor seeks to list it as taxable in the hands of the administrator and this proceeding is to enjoin the auditor from such listing. The exact question presented for decision, as I understand it, is: Were these moneys so held by the administrator assets of James Emmett’s estate, and as such subject to taxation in the hands of the administrator?

The statutes provides, Revised Statutes, 2734, that “moneys deposited subject to his order, check, or draft” shall be listed for taxation; that belonging to the '‘ estate of a deceased perso'n, by his executor or administrator. ’ ’

The money arising from the sale in this case was deposited in the bank and was there subject to check of the administrator, so that it comes literally under the designation of the statute, but it is contended that it was not in fact assets of the estate, because it was in fact the proceeds of property, the title to which was in the mortgagees, and the fund is simply substituted for the property.

After a good deal of consideration I am not able to assent to this reasoning. It is true that an order of distribution had been made, and the administrator required to pay this amount of money to the owners of the mortgage. It does not appear to me that he was necessarily bound to pay it out of this particular fund, although in this instance it is probably all the fund from which they had to pay it, but it was not designated any way in bank as differing in any way from other funds which they might have had in their hands. It was, as I think, assets of the estate and the administrator could check upon it for the purpose of carrying out the order of distribution to the mortgagees, and so far as I can see, he could not have checked from any other fund which he might have had belonging to the estate.

J. A. Eylan, for plaintiff.

F. E. Dougherty, for defendant.

It seems to me that McNeill v. Hagerly, 51 Ohio St., 255, 265, virtually decides that this fund is taxable. In that case the Supreme Court draws a distinction between the case of an assignee and that of an administrator, holding that the former need not list simply because he is not required to by the terms of the statute, but at the same time points out that an administrator is required to list, and then says that “As to administrators, it is true that property in 'their hands is subject to the payment of the debts of the decedent, and that creditors are expected to list their claims as credits, and often it happens that the debts consume the entire assets. But usually there is in fact, as well as in contemplation, a residue going to widows and legatees or heirs, and they are not required to list for taxation any amount until it is actually received.”

The effect of the whole ease, as I understand it, is that if an assignee were included in the category of administrators and the other trustees enumerated in the statute, he would have to list, hence it follows that the administrator, being n?imed, must list.

The case of Stone v. Strong, 42 Ohio St., 53, does not seem to hold any contrary doctrine. The judgment and finding must be for the defendant.  