
    Tax Commission of Ohio v. Pixley.
    (Decided April 22, 1935.)
    
      Mr. Wm. H. Middleton, Jr., for plaintiff in error.
    
      Messrs. Henderson, Quail, McQraw & Barldey, for defendant in error.
   Terrell, J.

This case involves the consideration of the method of calculating the amount of inheritance tax on the succession of Ohio real estate which was willed by a non-resident by a residuary clause in his will.

William Quail, the testator, was a resident of Kansas. He left no widow. His will by general bequest left $5,000 to Ella M. Pixley, his sister-in-law, and all the residue of his estate was left to his daughter, Ella M. Quail. The estate consisted of $6,000 in real property, located in Kansas, personal property in Kansas of the value of $11,363.94, and real estate in Cuyahoga county, Ohio, of the value of $16,234.96, which was the only property of the estate in Ohio. The $5,000 bequest to Ella M. Pixley, for the purposes of the question before us, may be considered as having been paid to her out of the personal property in Kansas. By the residuary clause of the will, Ella M. Quail then succeeded to the $16,234.96 of real property in Cuyahoga county.

The question involved here is, how shall the amount of tax on this Ohio succession be determined?

The petition was filed by the executrix in the Probate ^Court of Cuyahoga county to determine and fix the amount of said tax. The Probate Court proceeded under Section 5345-2, General Code, which reads as follows:

“All property taxable under this act not specifically bequeathed or devised, including successions under a residuary clause in a will, shall be deemed to be transferred proportionately among all the general legatees or devisees in accordance with their several interests in the estate, and, in case of intestacy, according to the proportions prescribed by the statute of descent and distribution applicable thereto.”

For the purpose of fixing this tax, the Probate Court apparently “deemed” said Ohio property “to be transferred proportionately among all the general legatees or devisees in accordance with their several interests in the estate * # *.”

The whole estate amounted to $33,598.90. The interest of Ella M. Pixley in the whole estate was $5,000. The interest of Ella M. Quail in the whole estate was $28,599. Using the proportion as $5,000 is to the whole estate, the court found that the share to which Ella M. Pixley was “deemed” to have succeeded in the $16,234.96 of Ohio real property was $2,416, and that the share in said Ohio property to which Ella M. Quail was “deemed” to have succeeded was $13,819.

The court then applied the rates set forth in Section 5335, General Code, to the successions in the Ohio property “deemed” to have been transferred as hereinabove set forth.

Tbe $2,416 share was taxed at seven per cent., or $169.12. Against the share of $13,819 there was allowed an exemption of $1,691, leaving a net amount of the succession taxable of $12,128 at one per cent., or $121.28. The net result of this method of calculation was that the succession to the Ohio property by Ella M. Quail was taxed a total amount of $290.40. The executrix was ordered to pay this amount of tax.

Ella M. Pixley filed exceptions to this finding and order. She objected “to the determination of the inheritance tax payable on her succession to the estate of said decedent in the State of Ohio.” She claims that the decedent’s property in Ohio cannot be charged with any tax on account of the legacy of $5,000 to her; that she has no possible interest in the said Ohio property and that an erroneous method was adopted in charging the inheritance tax; that the bequest to her was general and was not chargeable to any real estate; that there was ample personal property in Kansas from which her bequest could be paid, and from which it should be paid according to the Kansas law, and that she should not be subject to any inheritance tax in Ohio upon such succession.

Said exceptions were overruled, from which an appeal was taken to the Court of Common Pleas. Upon hearing of this appeal the Common Pleas Court reversed the Probate Court ruling, from which reversal error is prosecuted in this court.

We conclude that the method adopted in calculating the inheritance tax on the succession of Ella M. Quail to the property of the estate, in Ohio was the proper method. We fail to see how the rights of the exceptor, Ella M. Pixley, are in any way affected by the order of the Probate Court. She was not required to pay the tax in any respect. It does not affect her right to receive the full amount of her legacy. The order is against the executrix to pay said tax, and it is a lien upon the Ohio real property until paid. It does not affect any property in Kansas. The only reason that the legacy of $5,000 to Ella M. Pixley is considered at all is because it serves as a yardstick to measure the amount and rate of tax upon the succession of Ella M. Quail to the Ohio property. Both of these parties are in the class of general devisees or legatees. Their gifts from the testator were not “specifically bequeathed or devised” and the gift of the Ohio real estate to Ella M. Quail was a succession “under a residuary clause in a will.” Therefore, under Section 5345-2, General Code, for the purpose of fixing the inheritance tax only, this Ohio property ‘ ‘ shall be deemed to be transferred proportionately” between Ella M. Pixley and Ella M. Quail “in accordance with their several interests in the estate.” That means in accordance with their several proportionate interests in the whole estate and not as their interests may be divided into personalty and realty of the estate.

The succession to that portion of the Ohio property “deemed” to have been transferred to Ella M. Pixley under the statute would bear seven per cent tax, and the succession to that portion of the Ohio property “deemed” to have been transferred to Ella M. Quail, less the amount of the exemption, would bear one per cent tax under the statute.

It thus follows that no inheritance tax is charged upon the legacy of $5,000 to Ella M. Pixley. It was not found by the court that she had any interest in the Ohio property. It would not make any difference that the bequest to her was paid or might have been payable, out of the personalty in Kansas. The legislature enacted Section 5345-2, General Code, as a rule to determine the amount and rate of tax. There is no question raised that the Legislature had not ample power to enact this law.

The Probate Court was correct in following the method prescribed by Section 5345-2, General Code, in determining the inheritance tax herein, and the ruling of the Common Pleas Court was erroneous.

The judgment of the Common Pleas Court is hereby reversed and that of the Probate Court is affirmed.

Judgment reversed.

Lieghley, P. J., and Levine, J., concur in judgment.  