Estate of Coxe , 181 Pa. 369 ( 1897 )

Opinion by

Mr. Justice Mitchell,

The testator left his whole estate, less some unimportant legacies, in trust for his' widow for life, with remainder to his nephews and nieces living at his death, and the issue of nephews and nieces then deceased. The life estate to the widow is exempt from the collateral inheritance tax but the entire estate m remainder is liable, and the question presented is whether the tax is now demandable from the executors. By sec. 3 of the Act of May 6, 1887, P. L. 79, the tax on estates in remainder is not payable “until the person or persons liable for the same shall come into actual possession of such estate, by the termination of the estates for life or years,” provided that “the owner shall have the right to pay the tax at any time prior to his coming into possession,” and provided further “ that the tax on real estate shall remain a lien on the real estate on which the same is chargeable until paid. And the owner of any personal estate shall make a full return of the same to the register of wills of the proper county, within one year from the death of the decedent, and within that time enter into security for the payment of the tax to the satisfaction of such register, and in case of failure so to do, the tax shall be immediately payable and collectible.” It is under this last clause that the commonwealth claims that the tax in the present case is now collectible and the learned court bélow has held that the executors are the owners liable for its payment. This construction however cannot be sustained without doing violence to the letter as well as the plain intent of the statute. The tax is not payable until “the person liable for the same ” shall come into actual possession. This cannot possibly mean anyone but the remainderman, for he is the only one to come into actual possession by the termination of the precedent estate for life or years. And in the proviso which adds that the “ owner shall have the right to pay the tax .at any time prior to his coming into actual possession,” the “ owner ” must for the same reason be the remainderman, for he is “the person liable for the same,” and the only one who is to come into possession. And when in the second proviso “ the owner of any personal estate ” is directed to make a full return of the same and enter security for the payment of the tax, and in case of failure to do so the tax is to become immediately payable, the “ owner ” meant is the same person as in the preceding clauses, the person liable to pay, and the person who is to come hereafter into actual possession, i. e. the remainderman. The intent of the statute is to charge the beneficiary of the estate, and whether the phrase used is “ person liable” or person who “shall come into actual possession” or “ owner ” it always means the same person, the remainderman. It is to him alone that the commonwealth must look for present payment of tax on property, whether real or personal, the actual possession or enjoyment of which is postponed by an intervening period of life or years. Under the act executors and administrators are charged with the duty of deducting the tax before payment of legacies or distributive shares or the delivery of specific articles bequeathed, and therefore under some circumstances they may be considered as persons liable to pay the tax, but they are notin any sense “owners ” within the language of section three. They cannot be compelled to make present payment of the tax on estates in remainder, for the very obvious reasons that they are not the parties primarily charged with the payment, either present or future, they are not responsible for the owner’s default of return and security which makes the future tax payable immediately, and in the present case they cannot pay it now without taking it out of the widow’s estate which is not liable to the tax at all.

It is said that the remaindermen under the testator’s will are not now ascertainable. On this we express no opinion. The commonwealth disputes this position, but the parties charged by it as remaindermen are not before us. All we need to say now is that if the remaindermen are not yet ascertainable, that is no reason why the tax should be collected from the life tenant who is exempt. The only effect of such condition would be that the tax would not be presently collectible at all, and the commonwealth would have to depend on its lien on the real estate, and its claim on the executors when they make distribution.

Decree reversed and petition dismissed with costs.