
    In re KJAR’S ESTATE.
    No. 3988.
    Decided Nov. 8, 1923.
    (220 Pac. 501.)
    1. . Dower — Conveyances by Husband to Wife and Members oe Family Presumptively with Her Consent and in Relinquishmentof Dower. A husband's conveyance of all Ms property in anticipation of death to his wife and other members of his family, in the absence of evidence to the contrary, will be presumed to have been made with her consent, and will operate as a relinquishment of her one-third interest under Comp. Laws 1917, § 6406, in the property not conveyed to herself.
    2. Taxation — Inheritance Tax Applicable to Property Conveyed to Family in Anticipation of Grantor’s Death. Under Comp. Laws 1917, § 3185, as amended in Laws 1919, c. 64, property passing hy deed, made in contemplation of death is subject'to an inheritance tax.
    
    Appeal from District Court, Seventh District, Sanpete County; Dilworfh Woolley, Judge.
    In the matter of the estate of Louis C. Kjar, deceased. From a judgment fixing tbe amount of the inheritance tax, the State appeals.
    Remanded, with directions to modify.
    
      Harvey H. Cluff, Atty. G-en., and L. A. Miner, Asst. Atty. Gen., for the State.
    
      J. A. Hougaard, of Manti, for respondent.
    
      
      
        In re Bullen’s Estate, 47 Utah, 96, 151 Pac. 533, L. R. A. 1916C, 670; In re Osgood’s Estate, 52 Utah, 185, 173 Pac. 152, L. R. A. 1918E, 697.
    
   THURMAN, ,J.

Louis C. Kjar, a resident of Manti City, Sanpete county, Utah, died intestate in that city November 7, 1921, leaving a surviving widow and numerous children. An administrator of his estate was thereafter duly appointed and qualified, and it appears from the record that his estate consisted solely of personal property of the value of $858. It also appears from the record? that a short time prior to his death he conveyed to his wife and members of his family by deed, as a final distribution of Ms property, all of his real estate, aggregating in value the sum of $29,558.40, and all of his personal property except the said sum of $858. The appraised value of the entire property, both real and personal, totaled the sum of $41,105.96. The property was appraised by inheritance tax appraisers duly appointed by the court.

. The petition of the administrator for an order determining the inheritance tax, after making numerous deductions on account of debts, etc., represented tbat the property subject to the tax was only the sum of $9,065.67; the tax thereon at 3 per cent, being the sum of $271.97. The prayer of the petition was that said sum be fixed and determined as the amount of the inheritance tax. The Attorney General, on behalf of the state, filed objections to certain deductions made by the administrator. A hearing was had thereon and findings made by the court sustaining the prayer of the petitioner and against the contention of the state. Judgment was entered accordingly, from which .judgment the state appeals.

In making his deductions for the purpose of determining the value subject to the inheritance tax, the admin'.itrator subtracted from the entire value of the property thr sum of $9,852.80 as and for the widow’s one-third of the value of the real estate. To this deduction the state objected, and the validity of its objection presents the only question to be determined.

As appears from the foregoing statement, the deceased prior to his death, conveyed by deed all of his real estate' to his wife and other members of his family, so that at the time of his death he owned no real estate whatever. The concrete question to be determined is, Was the administrator, in the circumstances, authorized by law to deduct from the value of the property one-third of the value of the real estate as and for the widow’s third allowed her under Comp. Laws Utah 1917, § 6406? And, especially, it may be asked, Was the administrator authorized to make such deduction, where the widow herself was making no claim, on her own account under the statute referred to, and where there is nothing, in the record to indicate that she did not join in the conveyances or that they were made without her consent ?

The statute to which reference has been made (section 6406), as far as material here, reads as follows:

“One-third in value of all the legal or equitable estates in real property possessed by the husband at any time during the marriage, and to which the wife had made no relinquishment of her rights, shall be 'set apart as her property .in fee simple if she survive him.”

It is expressly stated in the petition of the administrator that the deeds made by the deceased prior to his death were in the nature of a final distribution of Ms estate, and no doubt it was so intended and so understood, not only by tbe deceased, but by his wife and other members of the family. In the absence of evidence to the contrary, it must be presumed that the conveyances were made with the consent of his wife, and that she therefore relinquished her right to such portions of the property as were not conveyed to herself.

In the Bullen Estate Case, 47 Utah, 96, 151 Pac. 533, L. R. A. 1916C, 670, it was held by this court that the wife’s interest under the above statute was not subject to an in-heritan 'e tax, but in that case the husband died leaving real estate to which the wife had not relinquished her right.

In the Osgood Estate Case, 52 Utah, 185, 173 Pac. 152, L. R. A. 1918E, 697, which was a case in which the widow took under a will, it was held that her portion was subject to the inheritance tax, and further that a person claiming ; n exemption from the tax was charged with the burden of proving the facts entitling him to exemption. No such facts were attempted to be shown in the instant case.

Under the inheritance tax law, conveyance by deed stands upon the same footing as conveyance by will. Comp. Laws Utah 1917, § 3185, as amended in Sess. Laws 1919, c. 64, provides:

“All property within the jurisdiction of this state, and any interest therein, whether belonging to the inhabitants of this state or not, and whether tangible or intangible, which shall pass by will or by the statutes of inheritance of this or any other state, or by deed, grant, bargain, sale or gift, made in contemplation of the death of the grantor, vendor or donor, or intended to take effect in possession or enjoyment at or after the death of the grantor, vendor, or donor, to any person in trust or otherwise, and, for the purposes of this act, any transfer of a material part of any such property in the nature of a final disposition or distribution thereof made by the decedent within three years prior to his death, except in case of a bona fide sale for a fair consideration in money or money’s worth, unless shown to the contrary, shall be deemed to have been made in contemplation of death, shall be subject to the following tax, after the payment of all debts, for the use of the state; three per cent, of its market value in excess of $10,060.00, and not exceeding $25,-000.00, and 5 per cent, of its market value in excess of $25,000.00; and all administrators, executors, and trustees, and any such, grantee under conveyance, and such donee under a gift made during the grantor’s or donor’s life shall be respectively, liable for all such taxes to he paid by them respectively, except as herein otherwise provided, with lawful interest as hereinafter set forth, until the same shall have been paid. The tax aforesaid shall be and remain a lien on such estate from the death of the decedent until paid. In determining the amount of tax to be paid under the provisions of this section, the debts of the estate shall first be deducted, and the remainder shall be the net estate. Upon all that portion of the net estate in excess of $25,000.00 the tax of 5 per cent, shall be computed. Upon all that portion of the net estate in excess of $10,000.00 and not exceeding $25,000.00 the tax of 3 per cent, shall be computed; and the court shall determine the amount of tax to be paid by the several devisees, legatees, grantees, or donees of the decedent.” (Italics supplied.)

We have not been favored with a brief by respondent, nor does the record disclose the reasons which prompted the decision of the trial court. The language of the inheritance tax law quoted above, as far as concerns the proposition involved in the case at bar, is plain and unambiguous. Among other things, it expressly covers property passing by deed made in contemplation of death. The facts expressly admitted in the instant case bring it clearly within the provisions of the statute as interpreted by the decision of the court to which reference has been made.

It is manifest that the trial court erred in entering judgment for respondent as to the item of which appellant complains.

The cause is therefore remanded to the trial court, with directions to modify the judgment in accordance with the views herein expressed. Costs to be taxed against the estate.

WEBER, C. J., and GIDEON, CHERRY, and FRICK, JJ., concur.  