Appeal from Eighth Judicial District Court, Churchill County; T. C. Hart, Judge.
Hoyt, Gibbons & French, for Appellant.
Geo. B. Thatcher, Attorney-General, for Respondent.
By the Court, McCarran, J.:
Warren W. Williams died January 24, 1914, leaving an estate approximately $384,000. In arriving at an amount upon which an inheritance tax would fall, deductions were made amounting to $55,887.77, leaving a balance in the estate of $328,527.33.
The deceased left a will in which he set forth:
I hereby declare that all of my property is community property, one-half of which belongs to my wife; and for
that reason I hereby refrain from any attempt to in any wise dispose of that portion of the same by will or testament.
The district court found that the estate of the surviving wife came to her by inheritance and was liable to taxation under our inheritance tax law, and therefore adjudged the amount of $4,620.55 to be payable against the widow's one-half of the community property. From this order appeal is taken.
One question is presented here, namely, did the surviving widow of Warren W. Williams, deceased, take her one-half of the community property left by the decedent as an heir, or was the one-half of the community property something which belonged to her absolutely in her own right and as such did not pass to her by succession or inheritance?
Our inheritance tax law was enacted by the legislature of 1913, and is found on page 411 of the session acts of that year.
Section 1 of the act provides:
A tax shall be and is hereby imposed upon the transfer of any and all property within the jurisdiction of this state, and any interest therein or income therefrom, whether belonging to the inhabitants of this state or not, and whether tangible or intangible, not hereinafter exempted, which shall pass in trust or otherwise by will or by the statutes of inheritance of this or any other state or by deed, grant, sale, or gift made without valuable and adequate consideration in contemplation of the death of the grantor, vendor, assignor, or donor or intended to take effect in possession or enjoyment at or after such death, as specified in this act. * * *
The property in question, being one-half of the property of which the decedent died possessed, did not pass by will in this instance, inasmuch as the decedent made no attempt to convey in that manner. Our state is one of those in which the law of community property prevails. In 1873 our legislature, in compliance with constitutional
provision, passed an act, defining the rights of husband and wife, and section 1 thereof prescribes:
All property of the wife, owned by her before marriage, and that acquired by her afterwards by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is her separate property; and all property of the husband, owned by him before marriage, and that acquired by him afterwards by gift, bequest, devise, or descent, with the rents, issues, and profits thereof, is his separate property. (Rev. Laws, 2155.)
By section 2 of the act, the legislature of this state specifically defined and limited the property that should be known and designated as community property. It says:
All other property acquired, after marriage, by either husband or wife, or both, except as provided in sections 14 and 15 in this act, is community property. (Rev. Laws, 2156.)
Section 14 of the act has to do with the earnings and accumulations of a wife while living separate from her husband; section 15 bears upon a similar subject; and neither has any effect on the matter under consideration. Section 2165 of our Revised Laws provides:
Upon the death of the husband one-half of the community property goes to the surviving wife, and the other half is subject to the testamentary disposition of the husband, and in the absence of such disposition goes to his surviving children equally, and in the absence of both such disposition and surviving children, the entire community property belongs without administration to the surviving wife, except as hereinafter provided, subject, however, to all debts contracted by the husband during his life that were not barred by the statute of limitation at the time of his death. * * *
Hence, in the event of the death of the husband, one-half of the community property, according to the statute, goes to the surviving wife, and the other half is subject to whatever testamentary disposition the deceased husband may have seen fit to make.
The language of our statute relative to the disposition of the community property in the event of the death of the wife is somewhat different. It provides:
Upon the death of the wife the entire community property belongs, without administration, to the surviving husband. * * * (Rev. Laws, 2164.)
Hence in these two sections of our Revised Laws, passed long prior to the time at which any inheritance tax law was considered in this state, we find the law governing the disposition of property belonging to the estate which was held in the community of husband and wife, the record title of which may have been in the husband alone.
1. It is the contention of respondent in this instance that the one-half of the community property which under the statute goes to the surviving wife is but an estate in expectancy, and that she takes the same as an heir. In support of their contention, they cite the several decisions rendered by the Supreme Court of California, and lay special emphasis upon the fact that these decisions were rendered in the light of a statute of which our section 2165 is in all probability a copy. (In Re Burdick, 112 Cal. 393, 44 Pac. 734; Spreckels v. Spreckels, 116 Cal. 339, 48 Pac. 228, 36 L. R. A. 497, 58 Am. St. Rep. 170; Sharp v. Loupe, 120 Cal. 93, 52 Pac. 134, 586; Plass v. Plass, 121 Cal. 133, 53 Pac. 448; Estate of Moffitt, 153 Cal. 359, 95 Pac. 653, 1025, 20 L. R. A. n. s. 207; Keating v. Smith, 154 Cal. 186, 97 Pac. 300; Estate of Kennedy, 157 Cal. 523, 108 Pac. 280, 29 L. R. A. n. s. 428; Estate of Rossi, 169 Cal. 148, 146 Pac. 430; Knox v. Emerson, 123 Tenn. 409, 131 S. W. 972.)
We are further reminded by respondent that as early as 1860 the Supreme Court of California, speaking through Mr. Chief Justice Field, used the expression:
The interest of the wife is a mere expectancy, like the interest which an heir may possess in the property of his ancestor. (Van Maren v. Johnson, 15 Cal. 308.)
The expression of the Supreme Court in that case was commented on in the later case of De Godey v. Godey, 39 Cal. 164, and there the court, referring to the community property, said:
It belongs to the matrimonial community, and not less to the wife than to the husband. It is true that the interest of the wife therein pending the marriage has been termed a mere expectancy' (Van Maren v. Johnson, 15 Cal. 308); but while, perhaps, no other technical designation would so nearly define its character, it is, at the same time, an interest so vested in her, as that husband cannot deprive her of it by his will (Beard v. Knox, 5 Cal. 256, 63 Am. Dec. 125), nor voluntarily alienate it for the mere purpose of divesting her of her claims to it.
The court, continuing, made the further observation, and one which we deem pertinent on the subject, bearing upon the thought evidenced in the written lines of statute law, that the wife is an active party in the community, and where by their joint efforts the husband and wife acquire property, her right therein at all times is a thing recognized. The court says:
The theory upon which the right of the wife is founded (as we said in Galland v. Galland, 38 Cal. 265) is that the common property was acquired by the joint efforts of the husband and wife, and should be divided between them if the marriage tie is dissolved either by the death of the husband or by the decree of the court, etc. Her mere right in the community property is as well defined and ascertained in contemplation of law, even during the marriage, as is that of the husband. It is true that the law confers upon the latter the authority to manage and control it during the existence of the marriage, and the power to sell it for the benefit of the community, but not, as we have seen, so as to defraud the community of it.
In the Matter of the Estate of Burdick, 112 Cal. 387, 44 Pac. 734, the court there, speaking of the wife's interest in the community property, reasons thus:
No one disputes that it is succession; but the language is the same in regard to the moiety given to the wife. It goes' to her just as it goes' to the descendants.
The term goes, as used in section 1402 of the civil code of California, it will be seen, is ...