
    Executors of Eury v. The State.
    
      Inheritance tax act — of April 25, 1904 — Went into effect May 1, 1904 — Is not retroactive.
    
    The act passed and approved April 25,1904 (97 O. L., 398), entitled “An act to impose a tax upon the right to succeed to, or inherit, property,” is not retroactive, and applies only to such rights arising on a death occurring on or subsequently to that day.
    (No. 9293
    Decided May 23, 1905.)
    Error to tbe Circuit Court of Darke county.-
    Tbe State of Ohio and tbe executors, S. A. Hostetter and David W. Smith, of tbe last will and testament of David Eury, deceased, submitted an agreed case to tbe court, of common pleas of Darke county. Tbe question to be determined was whether that part of tbe estate of tbe decedent unadministered when tbe inheritance tax law, passed April 25, 1904 (97 O. L., 398), took effect was subject to tbe tax.
    David Eury, a resident of that county, died in 1884, testate. Tbe plaintiffs in error were duly appointed executors and still are acting as such. By bis will be gave and devised to bis executors in trust all of bis real and personal estate not otherwise specifically disposed of to be by them held to and for tbe uses and purposes and trusts therein set forth. His' wife was to have the use of the real estate and interest on the personal estate, and at the decease of his wife his executors were directed to convey the undivided one-half of said real estate to the then surviving children of Andrew Kershner, deceased, “and to the issue of such of his children as may then he dead as the parent would have if living in fee simple in equal rights, and in like manner and time to convey to Sarah Elizabeth Eichards for life and after her death to her children in fee simple” the other undivided half, and “if any of her children then be dead and left issue, then be living they have the share their parent would be entitled if living.” And “after the death of my wife, out of the monies in my executors’ hands arising from my estate, I direct my said executors to pay the following specific legacies, viz.: To each of the children of Delila Johnson, or afterwards Delila Lime, the sum of six hundred dollars ($600). If any of her five children should have died before this and 'left children, they to have the share their parent would have been entitled to if living. To Lidia Margaret Miller, daughter of Sarah E. Bertram, three hundred dollars ($300); and to Sarah E. Bertram twelve hundred dollars ($1,200); and to David W. Smith fifteen hundred dollars ($1,500) ; and to each of the living children, and to the issue of any that may be dead, of my brothers, Jesse Eury and Noah Eury, fifteen hundred dollars ($1,500); and on final settlement of my estate all the rest and residue thereof to be divided and distributed and paid to my heirs-at-law in the same proportion that the same would have been paid to them if I had died without a will. All of the former legacies and specific and residuary to be paid after the death of my wife.”
    
      The widow died in July, 1904, and the value of several of the legacies in the hands of the executors is more than the amount exempt from the tax.
    The court found that the real estate specifically devised was not subject to the tax, but, with that exception, that the real and personal estate in the hands of the executors for distribution was subject to the tax, and it ordered and adjudged that the executors pay the tax on each such legacy and distributive share in excess of three thousand dollars.
    The executors prosecuted error in the circuit court. The State filed a cross-petition in error, assigning error in the judgment that the real estate specifically devised was not subject to the tax.
    The circuit court affirmed and error is prosecuted in this court.
    
      Messrs. Anderson, Bowman & Anderson, attorneys for plaintiffs in error,
    cited and commented upon the following authorities:
    
      State ex rel. v. Guilbert, Aud., 70 Ohio St., 229; Dallinger v. Rapello, 14 Fed. Rep., 33; Sewall v. Jones, 9 Pick., 412; Green v. Holway, 101 Mass., 243; 27 Am. & Eng. Ency. Law (2 ed.), 341; In re Lambard, Appellant, 88 Me., 587; Howe v. Howe, 179 Mass., 546; Hospital v. People, 198 Ill., 495; Garfield v. Bemis, 2 All. (Mass.), 445; Folsom v. United States, 21 Fed. Rep., 37; sec. 28, art. 2, Const. of Ohio; Linton v. Laycock, 33 Ohio St., 128; Doe v. Considine, 4 O. F. D., 94; 6 Wall., 458; Tindall v. Tindall, 167 Mo., 225; Letchworth’s Appeal, 30 Pa. St., 175; Heilman v. Heilman, 129 Ind., 59; Harris v. Carpenter, 109 Ind., 540; 4 Kent’s Commentaries (4 ed.), 203; 2 Jarman on Wills (5 ed.), 153; Mc 
      
      Arthur v. Scott, 5 O. F. D., 357; 113 U. S., 340; Ducker v. Burnham, 146 Ill., 9; Reed’s Appeal, 118 Pa. St., 215; In re Young, 145 N. Y., 539; Richey v. Johnson, 30 Ohio St., 288; Loder. v. Hatfield, 71 N. Y., 100; 24 Am. & Eng. Ency. Law, 394; Rand v. Butler, 48 Conn., 293; Garner v. Lawson, 3: East, 278; Bolton v. Bank, 50 Ohio St., 290; People. v. McCormick, 208 Ill., 437; Sayles v. Best, 140 N. Y., 368; Byrne v. France, 131 Mo., 639; Smith v. Bell, 6 Pet., 68; 24 Am. & Eng. Ency. Law (2 ed.), 436; Carstensen’s Estate, 196 Pa., 325; Seller v. Reed, 88 Va., 377; State ex rel. v. Ferris, 53 Ohio St., 314; Magoun v. Bank, 170 U. S., 283; Minot v. Winthrop, 162 Mass., 113; State v. Alston, 94 Tenn., 680; In re Wilmerding, 117 Cal., 284; State v. Dalrymple, 70 Md., 294; United States v. Perkins, 163 U. S., 628; Cooley on Taxation, 292; Rairden v. Holden, Admr., 15 Ohio St., 207; Commissioner v. Rosche Bros., 50 Ohio St., 103; Sturges v. Carter, 5 O. F. D., 428; 114 U. S., 511.
    
      Mr. H. L. Yount, prosecuting attorney, and Mr. A. C. Robeson, attorneys for defendant in error,
    cited and commented upon the following authorities:
    
      Linton v. Laycock, 33 Ohio St., 128; Knowlton v. Moore, 178 U. S., 41; State v. Guilbert, Aud., 70 Ohio St., 229; In re Bushnell Estate, 50 O. L. B., 87; State ex rel. Gelsthorpe v. Furnell, 39 L. R. A., 170 (20 Mont., 299); Ferry v. Campbell, 110 Ia., 290; Herriott v. Potter, 115 Ia., 648; Gilbertson v. Ballard, 101 N. W. Rep., 108; Carpenter, Exr. v. Commonwealth, 17 How., 456; Orr v. Gilman, 183 U. S., 278; In re McPherson, 104 N. Y., 306; Wallace v. Myers, 38 F., 184; State v. Ferris, 53 Ohio St., 314; Plumber v. Coler, 178 U. S., 115; Commonwealth’s 
      
      Appeal, 127 Pa., 435; In re Short, 16 Pa., 63; Jackson v. Tailor, 88 N. Y. S., 1104; In re Estate of Prife, 136 N. Y., 347; People v. McCormick, 208 Ill., 437; In re Line, 155 Pa., 378; Bailey v. Drane, 96 Tenn., 16; In re Sloane, 154 N. Y., 109; In re Davis, 149 N. Y., 539; Jenney et al. v. Gray, 5 Ohio St., 48; Quigley v. Graham, 18 Ohio St., 42; Gilpin v. Williams, 25 Ohio St., 283; Kent v. Bentley, 6 Circ. Dec., 457; 10 C. C. R., 132; Caruthers v. Tarvin, 8 Dec. Re., 344; 7 W. L. B., 127; In re Delano, 176 N. Y., 492; In re Will of Vassar, 127 N. Y., 1; 97 O. L., 398.
   Summers, J.

The act to be construed was passed and approved April 25, 1904. It is entitled “An act to impose a tax upon the right to succeed to, or inherit, property” (97 O. L., 398). The act provides that the right to succeed to or inherit property which shall pass by will or by the inheritance laws of this state, or by deed, grant, sale or gift made or intended to take effect in possession or enjoyment after the death of the grantor, to the use of certain persons, or to any one in trust for such persons, shall be taxed as follows, to-wit: “Upon the value of the property exceeding three thousand dollars, succeeded to or inherited by any person, two per centum on such excess ; such tax to be borne by the person so succeeding to or inheriting the same in the manner herein provided. ’ ’

It is contended for the State that the interest passing by the will did not vest until after this act took effect, that until after the death of the widow neither the persons who would take nor the value of the interests could be ascertained, that the succession is not complete until the property is distributed, and that the succession is subject to the tax in force at the time of distribution.

The contention on the part of the executors is, that the interests vested at the death of the testator prior to the time that the act took effect, that the act. is not retroactive and therefore does not apply to rights that vested prior to the time it took effect.

Man’s dominion over his property ceases at his death, wherefore in all civilized countries the state provides how he may devolve it to others at his death and what shall become of it when he dies intestate.

The right so given either to devolve or to succeed to property is subject to the power of the state to tax, and generally is taxed. To use a homely simile it may be likened to the taking of toll from the grist that is sent to the mill, and aside from considerations of convenience it is immaterial whether the whole toll be taken as soon as the grist is received or proportionately as the flour is delivered. Generally, but not necessarily, the amount of the tax is measured by the value of the property. Our state, however, deeming it to the interest of the public not to make the tax oppressive has imposed jt upon the right of succession, and has exempted to three thousand dollars the value of the property in determining the amount of the tax.

But while the tax has been likened to the toll that is taken for the grinding of a grist, it must not be overlooked that it is the right to devolve or to succeed to property that is taxed, and that an additional exaction might be made as is done in some states for the service in passing the property, sometimes, as in England, called probate duties. So that the right of the state to and the liability of the successor for the tax generally arises upon the death of the owner of the property and is not dependent upon the right of succession ripening into possession or enjoyment, and the fact, if it be a fact, that the state may have, by measuring the amount of the tax by the value of the property succeeded to, made it impracticable or difficult to collect the tax until the right has ripened into possession, does not change the subject of the tax, but merely postpones its collection.

Counsel are agreed that the law should be given a prospective and not a retroactive effect, and if we accept as correct their test that the liability of these interests to the tax depends upon whether they are vested or contingent at the date the act took effect, we probably should conclude that they are vested though some of them were defeasible. For it is the rule no longer that where there is no gift but by a direction to pay, or divide and pay, at a future time, or on a given event, the vesting will be postponed until after that time has arrived, or that event has happened, but the test is the reason for the postponement, and if that was that the property had- been given to another for life the bequest vested. But the occasion of the tax being the devolution of property it ought to attach to such interests only as arise by reason of a death subsequent to the act, and such clearly appears to have been the legislative intent, for not only is the act not expressly made retroactive but its words are all prospective. The right to inherit shall be taxed. The tax shall become due and payable immediately upon the death of the decedent, and shall at once become a lien upon said property, and if not paid within one year after the death of the decedent interest at six -per pent is to be collected, qnd if paid prior to the expiration of one year a discount of one per cent per month, shall be allowed, and all administrators, executors and trustees shall be liable for all such taxes. Other provisions that would be difficult of application if the act is-retroactive are contained in it, so that it would be unreasonable to conclude that the legislature, in the absence of any suitable provisions for a retroactive operation of the act, intended it so to operate. The conclusion reached finds more or less support in the following cases: Matter of Seaman, 147 N. Y., 69; Matter of Pell, 171 N. Y., 48; Matter of Vanderbilt, 172 N. Y., 69; Matter of Delano, 176 N. Y., 486.

The judgments below are reversed and judgment is entered for the plaintiffs in error in accordance with this opinion.

Reversed.

Davis, C. J., Si-iauck, Price, Crew and Spear, JJ., concur.  