Opinion
April 8, 1952 —
May 6, 1952.
APPEAL from two orders of the county court of Fond du Lac county: L. E. LURVEY, Judge. Affirmed.
A.D. Sutherland of Fond du Lac, for the appellant.
For the respondent there was a brief by the Attorney General and Harold H. Persons, assistant attorney general, and Neil Conway, inheritance tax counsel, and oral argument. by Mr. Persons and Mr. Conway.
Laura B. Atkinson died testate on March 13, 1951. James B. Atkinson, her husband, was appointed executor of her estate. Pursuant to statute, the executor gave notice to the Department of Taxation as follows:
"At the time of the death of Laura B. Atkinson the following properties were in the names of James B. Atkinson and Laura B. Atkinson and of the appraised value as follows:
"Real estate .....................$35,000 "Government bonds................. 11,814 ------ "Total ......................... $46,814 "This executor claims there is no inheritance tax due because of the death of Laura B. Atkinson on properties in the two names for the following reasons:"a. James B. Atkinson always was the owner of these properties and no joint tenancy was created when the properties were placed in the two names.
"b. That sec. 72.01 (6) of the Wisconsin statutes is contrary to the constitution of the United States and the state of Wisconsin because said sec. of the Wisconsin statutes prevents the introduction of evidence showing the true facts as to ownership of property in two names and creates a conclusive presumption and does not afford due process in a determination of inheritance taxes all of which is contrary to article XIV, section 1 of the amendment to the constitution of the United States and article I, section 9 of the Wisconsin constitution."
At the hearing for the determination of inheritance tax, the executor testified that both the real and personal property in the name of himself and his wife, at the time of her death, were in fact his property, paid for with his money; that he had retained custody thereof, and that no gift of any interest therein had ever been made to his wife. His testimony to that effect was received subject to the objection by the public administrator that it was immaterial and that it involved a transaction with his wife, now a deceased person.
Following the hearing, the court entered an order dated September 27, 1951, ordering and directing the payment of an inheritance tax of $459.81 on the property held in the two names, and on October 8, 1951, the court entered an order determining that the property in the two names was held by the parties as joint tenants. James B. Atkinson appealed from said orders, both as executor and as an individual.
The appellant contends that his testimony is competent and that it establishes the fact that there was no joint tenancy as to either the real estate or the government bonds. This testimony is immaterial and the county court was correct in giving it no consideration.
For deletions, see the memorandum on motion for rehearing, post, p. 484. REPORTER.
The following memorandum was filed June 20, 1952:
It is difficult to see how he is aggrieved by the order determining that the property in the two names was held by the parties as joint tenants. This order terminates the joint tenancy and makes him the sole owner thereof. That, in effect, is what he is claiming. If he is aggrieved, it is by the order determining that said property was subject to an inheritance tax under the provisions of sec. 72.01 (6), Stats. This statute, so far as it is pertinent in this case, reads as follows:
"(6) Joint interests. Whenever any property, real or personal, is held in the joint names of two . . . persons, . . . upon the death of one of such persons the right of the surviving . . . person . . . to the immediate ownership or possession and enjoyment of such property shall be deemed a transfer of one half . . . thereof taxable under the provisions of this chapter in the same manner as though the property to which such transfer relates . . . had been bequeathed or devised to the surviving . . . person . . . by will."
This case is governed by Estate of Hounsell 252 Wis. 138, 31 N.W.2d 203. In that case the appellant attempted to show that the deceased wife had no actual interest in the property, either through purchase or contribution, and that no gift had been made to her. Neither that case nor the present one is a gift-tax case. The statute is entirely different than that applicable to the tax on gifts. An inheritance tax is not a tax upon property or property rights, but is an excise tax levied upon the transfer or transaction, and the amount of the property involved is used merely as a measure of the amount of the tax.
In Estate of Hounsell, supra (p. 143), the court made this statement: ". . . all that is needed to set the statute in motion is to have property in the joint names of the parties." In view of this interpretation of the statute the county court was correct in determining that an inheritance tax was due. The computation of the tax is not challenged.
By the Court. — The orders are affirmed.
Upon motion for rehearing, the appellant contends that the doctrine of estoppel should not have been invoked in this case for the reason that it was not briefed or argued. He further contends that equitable estoppel cannot be invoked by the respondent, not a party to the transaction nor a privy of any of the parties, and further that no showing is made that the respondent acted to its detriment because of any representations made by or conduct of the appellant.
It is true that this question was not briefed or argued. What was said in the opinion in regard thereto was not necessary to a determination of the case, and until the question is duly presented we will withdraw all reference to estoppel in the opinion. Therefore, the following portion of the opinion is hereby deleted:
Beginning with the last sentence in the first paragraph of the body of the opinion, "The testimony is an attempt to impeach the documents under which he claims title," and continuing through the next three paragraphs, concluding with the sentence "He took his chance and is now estopped from denying the consequences of his own acts."
By the Court. — Motion for rehearing is denied without costs.