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In Re Miller's Estate

December 31, 1919

NELLIE MILLER NICKEL AND J. LEROY NICKEL, AS TRUSTEES UNDER THAT CERTAIN DEED OF TRUST DATED APRIL 17, 1913, MADE, EXECUTED AND DELIVERED BY HENRY MILLER TO NELLIE MILLER NICKEL AND J. LEROY NICKEL, AS TRUSTEES, AND RECORDED IN BOOK 972 OF DEEDS (N. S.), PAGE 170, IN THE COUNTY RECORDER'S OFFICE OF THE CITY AND COUNTY OF SAN FRANCISCO, STATE OF CALIFORNIA, APPELLANTS, V. THE STATE OF NEVADA, RESPONDENT. NO. 2310 GEORGE A. COLE, AS STATE CONTROLLER OF THE STATE OF NEVADA, RESPONDENT, V. J. LEROY NICKEL AND NELLIE MILLER NICKEL, AS TRUSTEES, ETC., ET AL., APPELLANTS.


Appeal from Second Judicial District Court, Washoe County; R. C. Stoddard, Judge.

Cheney, Downer, Price & Hawkins and Edward F. Treadwell, for Appellants.

Geo. B. Thatcher, Attorney-General, and William McKnight, Deputy Attorney-General, for Respondent.

By the Court, Sanders, J.:

This was a statutory proceeding brought by Cole as Controller of the State of Nevada, against the appellants under our so-called inheritance-tax law (Stats. 1913, p. 411). The appeal is prosecuted to review an order and judgment assessing and adjudging a transfer tax against the property involved for the sum of $48,149.78, and from an order denying and overruling the appellants' motion for a new trial.

[43 Nev. 12, Page 23]

The facts of the case are as follows: On March 26, 1913, the inheritance-tax law was approved, but by the terms of section 31 of the act it did not take effect until thirty days thereafter, or April 25, 1913 (Stats. 1913, pp. 411-422). Prior to April 17, 1913, Henry Miller, deceased, a resident of San Francisco, Cal., was the owner of 119,875.75 shares of stock in Miller & Lux, Incorporated, a Nevada corporation. This corporation owned all of the capital stock of the Pacific Live Stock Company, a California corporation. The latter corporation owned a large amount of real estate and personal property in Nevada, appraised at $1,431,326.86. To the extent that this stock represented the property situated in Nevada, it is taxable under section 1 of the act, which provides:

“For the purposes of this act, the ownership of shares of stock in a corporation owning property in this state shall be considered as the ownership of such interest in the property so owned by such corporation, as the number of shares so owned shall bear to the entire issued and outstanding capital stock of such corporation.”

This proposition is not disputed by appellants if the property is otherwise subject to the act.

On April 17, 1913, after the enactment and adoption of the act in question, and eight days before it became effective, Henry Miller, having prior thereto made other wills, published and declared his last will and testament, nominating therein Nellie Miller Nickel, J. Leroy Nickel, and F. B. Anderson as executors thereof without bonds. Immediately after the publication and declaration of his will, Henry Miller executed and delivered to Nellie Miller Nickel and J. Leroy Nickel a deed of trust, by which all of the said stock was transferred to said trustees upon certain trust. On the same date the trustees accepted the trust in writing. On the same date the stock was transferred on the books of the corporation to the trustees. The deed of trust and stock were thereafter kept in the exclusive custody of the trustees.

[43 Nev. 12, Page 24]

At the time of the execution of the will and deed, Henry Miller was 86 years of age, was an invalid under medical care and treatment, and afflicted with physical ailments from which he never recovered, and on October 14, 1916, he died. On June 4, 1913, Henry Miller, published and declared a codicil to his last will and testament, whereby the said Anderson was relieved of his trust as executor; he having theretofore expressed his desire to decline the trust. The deed contains substantially the same trusts as the will, and directs the trustees to pay the beneficiaries the amounts therein specified. which are the same as named in the will, and on the same conditions and limitations. The stock was, by the deed of trust, transferred to the trustees:

“To have and to hold the same as such trustees upon the following uses and trusts and for the following uses and purposes, that is to say:

“I. During the lifetime of the said party of the first part the said trustees shall receive the rents, issues and profits of said property and pay the same to the party of the first part, during the term of his natural life.

“II. (1) Upon and after the death of the said party of the first part the said trustees shall take and hold all of said property, and shall convert sufficient thereof into cash to pay the several amounts hereby directed to be paid, and shall collect the rents, issues and profits thereof, and therefrom shall be by them applied in the manner hereinafter set forth:

“(2) From the proceeds of the sale of said property said trustees shall pay the following sums: [Then follows list of persons and amounts to be paid to them. Some of these payments are to be made monthly and shall not extend beyond the lives of designated parties and ‘their children living at the time of the death of the party of the first part.' It also provides that upon the death of certain of said parties before receiving said sums, the share of such deceased person shall go to others.]

[43 Nev. 12, Page 25]

“(o) They shall pay to the following-named employees of said party of the first part and Miller & Lux, Incorporated, the following sums as soon after the death of said party of the first part as possible: [Then follows list of such employees with the amounts to be paid to each.]

“If any of the above-named persons be not employed by said party of the first part or Miller & Lux, Incorporated, at the time of the death of said party of the first part, the provisions by this subdivision made for him shall lapse. [Then follows list of other beneficiaries, with the amounts to be paid to each, followed by the provisions that all of the income from the said property, except the income from certain specified bequests, ‘from the time of the death of said party of the first part shall be paid to the daughter of said party of the first part, etc.']

“III. Nothing herein shall be construed to restrain the free alienation of any of said property and said trustees may sell any of said property at public or private sale, with or without notice, and on such terms as they may see fit. Whenever said trustees are authorized to invest any of said property, they shall invest the same only in real estate, mortgages on real estate, bonds of the United States, or of some county or municipal corporation within the United States, or stock or bonds of the corporations Miller & Lux, Incorporated, Pacific Live Stock Company, or the San Joaquin & Kings River Canal & Irrigation Company, Incorporated. All of the sums directed to be paid by the second (II) paragraph of this deed shall be paid as soon as sufficient money may be realized from the sale of the said property without injury thereto, and the same shall be paid as soon as in the judgment of said trustees it can be done without loss, but not later than ten (10) years after the death of said party of the first part and during the lives of the descendants of say party of the first part living at the time of his death, and said trustees may pay the

[43 Nev. 12, Page 26]

same in such amounts and at such times as may be most beneficial, and none of said amounts shall bear interest; provided, that at least one hundred and fifty ($150) dollars a month shall be paid on account of the provision for the daughter-in-law of said party of the first part, Sarah E. Miller, from the time of the death of said party of the first part. Nothing herein shall be construed to required or permit the accumulation of the income of said property, but the entire income of said property shall at all times be applied to the purposes herein set forth. If any person to whom any sum of money is directed to be paid dies before the death of said party of the first part, such provision shall lapse except as otherwise provided herein. If any of the sums directed by this deed to be paid to or set aside for the benefit of the persons named herein shall be paid or set aside in whole or in part by any trustees named in the last will and testament of said party of the first part from any estate coming into their possession under said will, such payment shall be deemed to be in satisfaction of the provision herein made for such party, and also in satisfaction of the provision in such will made for such party, in whole or in part, as the case may be, and the parties of the second part shall hold and dispose of the property conveyed hereby upon the remaining trusts designated herein.”

It appears that Henry Miller once expressed a desire to change one of the legacies specified in the trust deed, but he was advised by his counsel that it was not possible for him to do so “as no power of revocation had been reserved in the deed.”

It is the contention of the State of Nevada that the deed of trust was either made in contemplation of death, or was intended to take effect in possession or enjoyment at or after death within the meaning of the term “contemplation of death” as used in the act, which is defined by the act as follows:

“The words ‘contemplation of death' as used in this act shall be taken to include that expectancy of death

[43 Nev. 12, Page 27]

which actuates the mind of a person on the execution of his will, and in no wise shall said words be limited and restricted to that expectancy of death which actuates the mind of a person in making a gift causa mortis. * * *” Section 30.

Counsel for appellants in reply to this position state in their brief:

“It is not necessary for us to discuss these questions, because for the purpose of this appeal only we are willing to concede that, if this act had been in force at the time of this transfer, the same might be held to be made in contemplation of death, or not intended to take effect in possession or enjoyment at or after death within the meaning of the statute. Section 1. We do this because we have entire confidence in the position which we take in the case, viz, that whether in fact made in contemplation of death, or in law or in fact intended to take effect in possession or enjoyment after death so far as the beneficiaries other than Henry Miller are concerned, the transfer at its date created vested interests to which the act was not intended to apply, and to which it could not constitutionally apply.”

If we clearly interpret counsel's admission, the questions to be determined are narrowed down to three propositions: Did the deed of trust create a vested estate? Does the act apply to transfers made before it became effective? Can the act constitutionally be made to apply to such a transfer? Reading the opinion of the trial court in connection with its findings and conclusions, we take it that the last question is eliminated from the case. The district court in its opinion states:

“It will be noted that the statute went into effect April 25, 1913, and is not by its express terms made retroactive. Hence it must be construed as having only a prospective operation, as no intent to make the same operate retrospectively may be inferred from the words therein employed; therefore, if the interests in the property mentioned in the deed passed to and vested absolutely in the beneficiaries therein named upon the date

[43 Nev. 12, Page 28]

of the execution and delivery of the deed and independently of the death of Henry Miller, no tax may lawfully be imposed thereon.”

1-7. In this situation the vital point raised is: Did the deed of trust as of its date create a vested estate so as to exempt the transfer from the operation of the statute? The execution of the will, the deed, and the transfer of the stock was one transaction. To determine whether the indenture mediately vested the legal title to the stock so as to exempt the transfer from a transfer tax under the statute, the instruments must be construed together as a single instrument. In Re Brandreth, 58 App. Div. 575, 69 N. Y. Supp. 142; State v. Pabst, 139 Wis. 561, 121 N. W. 360. While it is true that the nominal sum of $10 is named as the consideration of the deed, we do not apprehend that it would be contended that the deed was intended to be anything more than a voluntary deed of gift to those whom the deceased regarded as the natural and worthy objects of his bounty. Considering the deed and will simultaneously executed, the physical condition of the deceased at the time, and the facts and circumstances attending and leading up to the execution of the indenture and transfer of the stock, as well as the language employed in the deed, construed in connection with that employed in the will, indicates that deceased disposed of his property to take effect in possession or enjoyment at or after his death. From the evidence, the impression is irresistible that the deed of trust was an afterthought to avoid, if possible, an expected increase in the inheritance-tax rate in California, and a probable inheritance tax of the federal government. Clearly the deceased was advised of these possibilities prior to the execution of the deed. This materially affects the weight of the deed as evidence in a case seeking to impose upon the transfer a transfer tax in this or any other court. The deceased, after the execution of the instruments and delivery of the deed, was advised that however much he desired to change any legacy provided for therein he could not do

[43 Nev. 12, Page 29]

so, because no power of revocation had been reserved in the deed. This tends to indicate that the deceased in the first instance did not regard the indenture as irrevocable. We do not doubt the sincerity of the advice, but we are unable to perceive why the principle of law involved should be arbitrarily applied to the facts of this case, particularly in view of the expressed limitation in the deed that, upon and after the death of the grantor, the trustees shall take and hold all of said property. The paper clearly contemplates posthumous operation. It is only in cases where other parties besides the person creating the trust have an interest therein that the trust becomes irrevocable.

We see nothing in the deed that could have prevented the deceased from revoking the trust had he desired so to do. No beneficiaries or third party, as far as the record shows, had any present interest in the property to prevent the deceased, if necessary to do so, from invoking a court of equity to revoke the trust. The appellants and other appointees under the will had no such interest, because the deceased could have revoked his will and made another in favor of other parties. His beneficiaries in the indenture had no such interest, because the deceased had power by will to secure the property to others, and entirely exclude them from all interest therein. In Re Ogsbury's Estate, 7 App. Div. 71, 39 N. Y. Supp. 981. It is clear from both instruments that the trustees were not empowered to transfer any interest or pay any legacy created by either instrument until the death of the grantor. The property was to all intents and purposes that of Henry Miller, subject to the disposition made of it by his will published and declared simultaneously with the deed. No reason is suggested why Miller should conclude himself from the right of disposing of his property by will, or that the deed should be construed as nullifying his will. We do not say that it is necessary to the validity of a deed that it should convey an estate in immediate possession, but it is necessary that it should take effect in interest upon

[43 Nev. 12, Page 30]

its execution, though the right of possession or enjoyment may not take place until the happening of a certain event. Wall v. Wall, 30 Miss. 91, 64 Am. Dec. 152. If, however, the interests created do not arise until the death of the donor, or some other future time, the instrument cannot be a deed, although it may be so denominated by the maker, may have express words of immediate grant, may have sufficient consideration to support a grant, and may be formally delivered. Babb v. Harrison, 9 Rich. Eq. (S. C.) 111, 70 Am. Dec. 204. We do not deny that the donor may convey an interest, reserving a lifetime estate to himself; but a deed, if made with a view of the disposition of a man's estate after his death, inures in law as a devise or will. Wellborn v. Weaver, 17 Ga. 267, 63 Am. Dec. 242.

We are clearly of the opinion, construing the instruments together and in connection with other with other evidence, that the district court correctly found that Henry Miller did not divest himself of, or relinquish control over, the interests of the beneficiaries named in the instruments, and it was not until the death of Miller that the transfer in any respect became absolute and that the beneficiaries became irrevocably entitled to the various sums mentioned in the deed after the death of Miller.

8. There is no natural right to create artificial and technical estates with limitations over, nor has the remainderman any more right to succeed to the possession of property under such deeds than legatees or devisees under a will. The privilege of acquiring property by such an instrument is as much dependent upon the law as that of acquiring property by ...


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