
    LUCE, Estate of, In re.
    Probate Court, Franklin County.
    No. 192429.
    Decided November 17, 1960.
    Mr. Lawrence C. Pretzman, for executor.
    
      Mr. Marie McElroy, attorney general, Mr. Joseph L. White and Mr. John Lucas, assistant attorneys general, for the Tax Commissioner.
   Walcutt, J.

This matter came on for hearing on exceptions to the determination of inheritance tax filed both by the State of Ohio and the Executor.

Gleorge E. Luce died testate, a resident of Franklin County, on November 19th, 1959. On November 25th, 1959, his will was admitted to probate. Item XVI of this will, which bequeaths $292,270.90, reads as follows:

All the rest, residue and remainder of my estate I give and bequeath to Dessie M. Saum, to be expended by her for any charity or charities that she may select and as a memorial to me.

On June 8th, 1960, the journal entry determining inheritance tax was filed in this Court, taxing this portion at the highest rate. The following day, June 9th, 1960, a second journal entry determining inheritance tax was filed, setting aside the June 8th determination and entering instead a “high-low” determination, the high determination taxing the bequest at the highest rate and the low determination exempting it altogether from tax.

The Executor filed exceptions to the determination at the highest rate. The State of Ohio, in turn, filed exceptions, containing two major branches, which are, in substance, as follows:

(1) Excepting to the allowance of an extraordinary fiduciary fee as a deduction in the amount of $41,164.73.

(2) Excepting to the computation on a high-low entry on the ground that this is not an estate against which an inheritance tax is being assessed under Section 5731.28, Revised Code.

As to branch one of the exceptions of the State of Ohio, counsel for the fiduciary has agreed that no extraordinary services have been performed to this point for which a fee of $41,164.73 could be allowed. Therefore, branch one of the exceptions of the State of Ohio is sustained.

The exceptions filed by the executor can and will be considered with branch two of the exceptions filed by the State. The answer to one will answer both.

In order to qualify as an exempt charity, the bequest must fall within the purview of Section 5731.09, Revised Code, the pertinent part of which reads as follows:

The succession of any property passed to or for the use of the State, to or for the use of a municipal corporation or other political sub-division thereof for exclusively public service purposes, or any public institution of learning or any public hospital not for profit within any state of the United States, which state does not impose an inheritance, estate, or transfer tax on property given, devised, or bequeathed by a resident thereof to an institution of learning, or any public hospital not for profit, within this state, or to or for the use of an institution for purposes only of public charity, carried on in whole or in a substantial part within this state, * * *

The language of Item XVI of the will is unambiguous. The residuary estate as such was not left to any public charity. The power of choice lies solely in Dessie M. Saum. She could, according to her own choosing, select all exempt charities or partly exempt charities, or all non-exempt charities. She could invest it in charities established outside the state of Ohio. To fall within the scope of Section 5731.09, Revised Code, it is the opinion of the Court that the will itself must establish the nature of the charity. It can not leave the choice to a third person.

It is now the well-established law of Ohio that the will must restrict the bequest to charities “carried on in whole or in substantial part in this state. ’ ’

In re Estate of Bremer, 166 Ohio St., 233, the third paragraph of the syllabus disposes of this question:

Where a testator devised or bequeathed a gift to an “institution” of public charity not in existence at the time of the testator’s death, without requiring that the benefits of such devise or bequest are to be used or enjoyed in whole or in substantial part in this state, the succession thereby created is not exempt from taxation under the provisions of Section 5731.09, Revised Code, regardless of the actual use of such benefits or the expressed intent as to such use of trustees or of the articles of a corporation created after the testator’s death.

Here the law is clear that the will mast establish the ase to make the beqaest exempt.

A case similar to the one at bar is the Tax Commission of Ohio v. Paxson, Administrator, 118 Ohio St., 36, holding as follows:

A testator devised a trast fand to certain trastees and their snccessors for charitable parposes, directing that the trastees and their snccessors shoald “be the sole jadges as to the persons qaalified and entitled to have the benefits of said fand, and the parposes for which said expenditares shall be made, within the general spirit of the parposes for which this beqaest is made.” Held, that the saccession to sach property is not exempt from the inheritance tax ander Section 5334, General Code.

Coansel for the fidaciary has qaoted at some length In re Estate of Miller, 171 Ohio St., 202. However, a carefal examination of that case will show that the only matter determined was the specific beqaest given to the Board of Trastees of the Central Presbyterian Charch of Colambas and did not constrae the residaary claase of the will in which the decedent gave to her attorney the residae of her estate to be distribated by him to sach charitable institations in Colambas as he shoald deem proper. Therefore, the Miller case woald not be determinative of the case at bar.

The barden of proof to exempt the property from taxation lies with the person seeking the exemption. In re the Estate of Salisbury, 90 Ohio App., 17, the first paragraph of the sylla-bas reads, as follows:

One seeking to have property exempted from taxation has the barden of showing that sach property comes sqaarely within the exemptions provided by law.

This barden of proof has not been sastained by the fidaciary and it is therefore, the opinion of the Coart that branch two of the exceptions to the Inheritance Tax filed by the State of Ohio mast be sastained and the exceptions filed by the execator mast be overraled.

An entry may be drawn in accordance with these findings.  