Attorney General v. Pierce, 59 N.C. 240, 6 Jones Eq. 240 (1861)

June 1861 · Supreme Court of North Carolina

59 N.C. 240, 6 Jones Eq. 240

ATTORNEY GENERAL against WILLIAM H. PIERCE, Executor.

A legacy in remainder to collateral kindred, is liable to the tax imposed by the act of 1846, chap. 72, and the proper mode of suing for such tax is by a bill in equity, in the nature of an information, in the name of the Attorney General.

Cause removed from the Court of Equity of Craven county.

This is a bill, in the nature of an information, alleging that Stephen Pierce died in the county of Craven in 1849, having bequeathed considerable estate, consisting of lands, slaves, money and choses in action, to his brothers, subject to a life-interest therein to his mother; that the amount in value of said estate is $20,000 ; that the defendant is nominated in the said will as executor, and as such, responsible for the tax imposed thereon by the revenue law of the State. The prayer is, that the said executor be decreed to pay the said tax.

The answer of the defendant admits the material facts, set out in the information, but contends that the legacies, set out in the bill, being interests in remainder, are not liable to the tax imposed by the statute law of the State ; but, at any rate, if so liable, the tax does not attach upon the said interests, until after they come to the legatees in possession. lie also objects, that by the act of 1858, the bill should have been filed in the name of the State.

The cause was set for hearing on bill and answer, and transmitted.

Henry 0. Jones, for the plaintiff.

Green, for the defendant.

Batxltd, J.

This is an information, in the name of the Attorney General, filed for the purpose of recovering from the defendant, as the executor of Stephen J. Pierce, the tax on legacies to collateral kindred, imposed by the act of 1846, chapter 72. The defendant, in his answer, sets up two objections to the claim, one of which goes to its merits, and the other, only to the form of the remedy.

1st. The first objection is, that the tax, specified in the act referred to, does not attach to the legacy in question, because it is the bequest of a remainder, after a life-estate given to the mother of the testator; or if it do attach to the legacy, it is not to be paid until the property comes into possession upon the death of the tenant for life. The objection, in either form of it, is untenable. The words of the act are sufficiently extensive to embrace such a legacy, and the manner in which the executor is directed to account for and pay over, the tax by the 4th section, shows that it is due immediately. The bequest of a remainder in slaves, or the specified articles, will, of course, be of less value than the whole interest in such slaves or other chattels, but it will have some immediate value, and that can be ascertained in the mode pointed out by the act of 1848, chap. 81, for assessing the value of slaves and other specific personal estate given by will to collateral kindred.

The 2nd objection, is to the form of the suit, the defendant insisting tho bill ought to have been filed in the name of the State, as is expressly required by the act of 1858, ch. 25, sec. 80. The answer is, that the 114th section of the latter act, excepts from its operation taxes due under the provisions of any former law, and the case of tho State v. Brim, 4 Jones' Eq. 800, shows that under such law, an information, in the name of the Attorney den eral, is the most approved form of proceeding.

The plaintiff is entitled to a decree for an account, and to have the amount of taxes, to which the State is entitled, ascertained and paid in the manner prescribed by law.

Pjsr OjsiaM, Decree accordingly.