
    Executors of Estate of Long v. The State of Ohio.
    
      Inheritance tax — Jurisdiction of probate court — Section 8, Article IV, Constitution — Section 5SU0, General Code — Assessment of inheritance tax against residuary legatee — Bequest to foreign university by nonresident owning property in Ohio — Application for refunder made after term when assessed — Only question presented is whether judgment of probate court void, when — Taxes voluntarily paid without protest cannot be recovered back, when.
    
    1. Probate court held to have jurisdiction to assess inheritance tax against one whom it found entitled to residue of estate of decedent, including bequest to university, where decedent owned property within state, but was resident of New York, in view of Article IV,- Section 8 of the Constitution, and Section 5340, General Code, notwithstanding Section 5334; “jurisdiction” being authority by which judicial officer takes cognizance of and decides cases.
    2. On application for refunder of inheritance tax, made after term at which it was assessed, only question is whether judgment of probate court was void, where no exception had been taken, and no proceeding on error or appeal prosecuted to such judgment.
    3. Voluntary payment of inheritance tax without protest or objection cannot be recovered back, even though it was illegally assessed.
    (Decided April 12, 1926.)
    Error: Court of Appeals for Hamilton county.
    
      Mr. Charles B. Wilby and Mr. Clark Wilby, for plaintiffs in error.
    
      Mr. Charles C. Crabbe, attorney general, and Mr. Charles W. Baker, for defendant in error.
   Cushing, J.

Elizabeth T. Long, a resident of New York, died testate August 17,1923. She owned property in Ohio.

By item 6 of her will she gave Cornell University of Ithaca, N. Y., $2,000 for its general endowment fund.

By item 13, by peculiar language, she gave said University $30,000 to establish a scholarship in structural geology, to be known as the Eleanor Tatum Long scholarship. Whether the language used amounted to a gift, or was precatory, with dispositive meaning, will not here be discussed or determined.

The will was duly probated at the place of residence of the deceased.

On November 17, 1923, a duly certified copy of the will, and a petition praying for proceedings to determine the amount of the inheritance tax in Ohio, were filed in the probate court of líamilton county, Ohio.

December 13, 1923, the probate court found that William T. Hilles was the successor to the property and entitled to the residue of the estate, including the bequest mentioned in item 13 of the will. The court then determined the amount of the inheritance tax that should be paid by Hilles. On the same day, all of the parties in interest, including the executor, signed and filed in said court a waiver of the time for taking exceptions to the holding of the court, and, in writing, requested the court to immediately certify its finding to the auditor of Hamilton county, Ohio. The court complied with that request, and, on December 17, 1923, the amount of the inheritance tax, fixed as aforesaid, was voluntarily paid to the treasurer of Hamilton county, Ohio.

On April 10, 1924, a supplemental statement of the assets and liabilities of the estate was duly filed in the probate court. The amount of the inheritance tax on the supplemental statement was determined, and, on the same day, a waiver of the time for taking exceptions was filed. Said waiver, as before stated, was signed by all the parties, including the executor, and a request for immediate transmission to the auditor was duly filed in the probate court.

On April 15, 1924, the inheritance tax, so found to be due on the supplemental statement, was voluntarily paid to the treasurer of Hamilton county.

This ended the matter so far as the probate court was concerned. Its term expired, and thereafter, on September 24, 1924, the executor filed an application for a refunder of all the inheritance tax that had been paid under the order of the probate court. The theory on which the application for refunder was made was that item 13 was a bequest to a university, and that the law of New York, which might be termed a reciprocity act, provided for the exemption of property coming into Ohio when Ohio exempted bequests for educational or charitable purposes going to New York state. This reciprocity provision, as it may be termed, is found in Section 5334, General Code of Ohio, as amended March 7,1923, 110 Ohio Laws, 26.

No question is raised as to the statute of Ohio. It should be noted that none of the parties took exceptions to the finding of the probate court that Hilles was the successor to the estate, that the property was subject to the inheritance tax laws of Ohio, nor to the amount of such tax.

The law of New York was not pleaded, proved, nor suggested to the probate court at the time it determined the questions before it, nor for many months thereafter, and then only after the term of court had passed.

The application for refunder was denied. The cause was taken to the court of common pleas. That court sustained the probate court, and this action is prosecuted to reverse the holding of the lower court.

The main contention of counsel for the executor is that the probate court did not have jurisdiction to hear and determine the questions presented to it.

Article IV, Section 8, of the Constitution of Ohio, and Section 5340, General Code, passed pursuant to the constitutional provision, confer jurisdiction on the probate court to hear and determine all questions relating to inheritance taxes. It has been decided so many times that jurisdiction is the authority by which a judicial officer takes cognizance of and decides cases that it is not necessary to cite authority on that question. Jurisdiction does not relate to the rights of the parties, but to the power of the court. The probate court acquired jurisdiction through the Constitution and by the laws of the state of Ohio. It had jurisdiction of the subject-matter. The proper and necessary parties were all before it, and whether it was in error in holding that Hilles was the successor to the estate of the deceased, and that the property was taxable under the inheritance tax laws of Ohio, is not here for determination, for the reason that no exceptions were taken, and no proceeding on error or appeal prosecuted, to the finding and judgment of the probate court. The only question that we must determine is whether or not that judgment of the probate court was void. Our conclusion is that it was not.

The application for a refunder filed by the executors of the estate of Elizabeth T. Long recites that the tax on succession to Cornell University, which was included in the value of the succession of William T. Hilles, was a part of the sum of the inheritance tax paid. So far as the record in this court is concerned, other than this statement, Cornell University did not succeed to any part of the estate of Elizabeth T. Long.

We have disposed of the question determined by the probate court that William T. Hilles was the successor to the estate of Elizabeth T. Long, and also of the question whether or not the probate court erred in its determination. The tax was paid voluntarily.

The rule stated in Wilson v. Pelton, 40 Ohio St., 306, is that “An action against a county treasurer * * * to recover back taxes paid, which were illegally assessed, cannot be maintained when the taxes were paid voluntarily, and without protest or objection.”

The same principle was announced in McCrickart v. City of Pittsburgh, 88 Pa., 133. Many other cases might be cited.

In any view that may be taken of this case neither the probate court nor the court of common pleas was in error in holding that the executor was not entitled to a refunder of the taxes paid, as herein set out.

Judgment of the court of common pleas will therefore he affirmed.

Judgment affirmed.

Buchwalter, P. J., and Hamilton, J., concur.  