SCHOLEY V. REW, 90 U. S. 331 (1874)

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U.S. Supreme Court

Scholey v. Rew, 90 U.S. 23 Wall. 331 331 (1874)

Scholey v. Rew

90 U.S. (23 Wall.) 331


1. The "succession tax," imposed by the acts of June 30th, 1804, and July 13th, 1866, on every "devolution of title to any real estate," was not a "direct tax" within the meaning of the Constitution, but an "impost or excise," and was constitutional and valid.

2. A devise of an equitable interest in real estate, in which personal property had been invested by the trustee with the assent of the devisor, before the making of the will, was a devolution of real estate within the meaning of the Acts of June 30, 1864, and July 13, 1860, and the devisee is liable to the succession tax imposed thereby in respect of it if he has received its value, although in proceedings for partition he has had assigned to him only personal property.

3. An alien to whom a devise of an interest in real estate has been made and who has received its value in proceedings for partition is estopped to set up against a demand for a succession tax thereon that by the law of the state where the estate is, the devise is absolutely null and void.

4. Quaere whether a general assignment of errors that the judgment below on a special case was for the wrong party is sufficient.

5. Semble that an objection that a devise is void because of the alienage of the devisee cannot first be taken by him in this Court on a writ of error to the judgment of a circuit court on a special case, although the record discloses the fact of alienage.

Error to the Circuit Court for the Northern District of New York, in which court Scholey, a British subject, sued Rew, collector of internal revenue, to recover the amount of a "succession tax" which Rew, as collector, had demanded of him, Scholey, and which -- asserting it to be illegal -- Scholey had paid only on compulsion and under protest.

The case was found specially by the circuit court on a waiver of a jury under the Act of March 3, 1865, which authorizes such a finding by the court and enacts that when chanrobles.com-red

Page 90 U. S. 332

the finding is special, the review by this Court may extend to the sufficiency of the facts found to support the judgment. The case so found was thus:

Elwood, of Rochester, New York, died in 1863, leaving a widow and three minor children and a large amount of personal property, besides certain real estate.

He left also a will by which, after certain bequests of personal property, he directed that all the residue of his estate, real and personal, should be divided by his executors between his wife and three children, according to the statutes of New York, as if he had died intestate -- that is to say, as the Reporter supposes, though the language or effect of the statute was nowhere stated in the record or briefs -- one-third to the wife and two-thirds between the children. And he appointed his wife and two friends, Mumford and Russel, executors of the will.

In May, 1864, Russel, as acting executor, presented to the supreme court of New York a petition setting forth that the assets of the estate were about $500,000, chiefly invested in personal securities, but including a large amount of money uninvested; that it was deemed for the interest of the estate to invest a portion of the assets in productive real estate in Rochester; and asking authority to make the purchase of certain property described, in that city, for $73,000.

In pursuance of this prayer, an order was made authorizing the executors to invest so much as should be necessary of the assets of the estate in the purchase of the real estate described, and "to purchase and to hold the same as such executors."

Under the authority of this order, the executors in May, 1864, took a conveyance of the premises to themselves as executors of Elwood's will, the survivor or survivors of them, their successors or assigns, for $72,602. These premises were thenceforth styled and spoken of as the "Elwood lot," and, after being improved, as the "Elwood block."

At the time of Elwood's death, he owned four parcels of real estate in Rochester, one of them a vacant lot on Mill Street, which parcels were altogether of the value of $50,000. chanrobles.com-red

Page 90 U. S. 333

After the purchase of the Elwood lot the executors, by authority of the supreme court of New York, erected a building on the vacant lot on Mill Street, which cost $15,111, and also made improvements upon the Elwood lot at a cost of $49,006, which increased the value of the property at least to that amount. All these improvements were completed in the spring of 1868, and were paid for, as was also the purchase price of the Elwood lot, out of the personal property of Elwood's estate.

In October, 1867, Mrs. Elwood, the widow of Elwood, was married to Scholey, the plaintiff in the present case, and in September, 1869, she died, leaving a will. By her will, after five annuities during the lives of the five annuitants, amounting altogether to $4100 annually, certain specific legacies of personal property, and certain legacies of money, amounting to $6500, she gave all the residue of her property, real and personal, to her husband, the plaintiff, and appointed him with the above-named Mumford and one Worcester, executors.

In February, 1870, Mumford, as sole surviving executor of Elwood's will (Russel having died in 1866), instituted joint proceedings in the supreme court of New York against the three children of Elwood, against Scholey, Worcester, and Mumford, as co-executors of Mrs. Scholey's will, and against Scholey individually as her husband and residuary legatee.

The complainant alleged that Mrs. Scholey acquired some interest in or title to the Elwood block, and the once-vacant lot on Mill Street, by reason of the same's having been bought and improved out of Elwood's personal estate, and that Scholey, by virtue of Mrs. Scholey's will, claimed some title to or interest in it. It prayed that Mumford's accounts, as sole surviving executor of Elwood, and Mrs. Scholey's as sole executrix, might be settled and adjudged final and conclusive, and that her executors might be required to render accounts in furtherance of that purpose, including an account of all rents or income of said real estate received by her; that an account might be taken of all Elwood's personal chanrobles.com-red

Page 90 U. S. 334

estate, and its value at the time of his death and at all times afterwards; that Mrs. Scholey's share in that personal estate at the time of her death and at the time of the accounting, and also "what right or title she had in and to the said real estate, bought or improved out of the personal estate of" Elwood, might be determined; that when such share or interest should be determined, it should be partitioned from the body of Elwood's estate; that the shares of the three children in their father's personal estate might be determined and partitioned off to them in severalty, and that thereafter the share of each child might be kept separate, to the end that such share, with its increase, might be paid to each respectively as he or she should become entitled to receive it.

Scholey answered, admitting the making of the various orders and the investment of the sums mentioned in the purchase and improvement of real estate; denied the binding character of the orders, but admitted the propriety of the investments in case the advantages thereof were to be equitably shared by the parties interested in the funds invested, in proportion to their respective interests. He admitted that no distribution of Elwood's personal estate had been made and joined in the prayer for an accounting and distribution, praying further that upon Mrs. Scholey's share's being ascertained, the same, or such part of it as should not be required to provide for the legacies given by her will, might be delivered to him as her residuary legatee.

The other defendants also answered, and the same was referred to three referees to try the issues; to take and state the several accounts mentioned in the complaint; to determine the extent and value of the interest in Elwood's personal estate, which Mrs. Scholey's executors, and her husband as her residuary legatee, were entitled to receive under her will; to determine the share of each of Elwood's children in his personal estate; to determine whether actual partition of his personal estate could be made between Mrs. Scholey's executors and Mumford as Elwood's surviving executor, and if so, to make such partition and to determine chanrobles.com-red

Page 90 U. S. 335

whether Elwood's personal estate could be actually partitioned as between his three children, and if so to make such partition.

These referees reported on the 5th of November, 1870, among other things, as follows:

That Elwood's personal estate at his death amounted to $331,709, and at the date of the report to $492,374, which last sum included the building on the Mill Street lot, at $15,111, and the Elwood block at $135,000, and that the value of such personal estate subject to partition at the latter date, after deducting three specific bequests or charges in Elwood's will, was $467,402, which sum included the Elwood block and Mill Street building at the above valuation.

That the extent and value of the shares and interests of the several parties in Elwood's estate subject to partition, after making all proper deductions, was as follows:

Mumford, Worcester, and Scholey, as executors

of Mrs. Scholey, and Scholey as her residuary

legatee . . . . . . . . . . . . . . . . . . . . . $154,894.10

Elwood's children -- Frank. . . . . . $104,113.22

Agnes. . . . . . 103,359.87

Elizabeth. . . . 105,034.87 $312,507.90



That the referees had determined that actual partition of said personal estate could be made between all said parties, and had made such partition, and had set apart to Mrs. Scholey's executors in full of all claim which they or her residuary legatee might have upon Elwood's estate, the following property:

Bonds of the United States. . . . $128,151.25

Railroad and telegraph bonds. . . 7,525.00

Bond and mortgage . . . . . . . . 9,218.75

Promissory note . . . . . . . . . 5,098.10

Railroad stocks . . . . . . . . . 720.00

Cash. . . . . . . . . . . . . . . 4,181.00



That the referees had set apart to Elwood's three children their respective shares as above stated, schedules of which chanrobles.com-red

Page 90 U. S. 336

similar to the foregoing were given, and each schedule contained as the last item:

One-third of the appraised valuation of the Elwood

block and Mill Street building . . . . . . . . . . . $50,037

That they had not included the Elwood block in the partition between Elwood's three children, because it was not capable of actual partition.

A judgment was entered upon this report December 8th, 1870, reciting the partition, including the setting apart to each of the children of the undivided one-third of the Elwood block, confirming such partition, and adjudging that the complainant Mumford should remain in possession of the Elwood block as trustee for the children until they should respectively become of age.

Upon these facts, the plaintiff here, Scholey, was assessed for a succession tax of six percent upon $45,000, as the value of one-third interest in the Elwood block. He asserted that he was not liable to such tax, that he never was entitled to such real estate or any part of it, and that he never had any interest in it as a successor. He appealed from the assessment to the Commissioner of Internal Revenue, who decided the appeal adversely to him, whereupon he paid the defendant, May 30th, 1871, the amount so assessed, being $2,700, under compulsion and protest, and on the following day demanded repayment thereof, which was refused.

Upon this case, found as already said by the court, the plaintiff's counsel requested the court to order judgment against the defendant for $2,700 and interest. But the court held, as a matter of law, that on the statutes governing the case and immediately hereinafter cited the defendant was entitled to judgment, and judgment was entered accordingly.

The assignment of errors was thus made on the brief of the plaintiff in error:

"The sole question in the case is was the plaintiff liable to a succession tax upon this property? The sole error assigned is the decision of the court in the affirmative."

The statute in relation to "succession taxes" in force at chanrobles.com-red

Page 90 U. S. 337

the time of Mrs. Scholey's death, in September, 1869, was the original Internal Revenue Act of June 30th, 1864, [Footnote 1] as amended by the Act of July 13th, 1866. [Footnote 2]

It enacts: [Footnote 3]

That for the purposes of the act, "the term real estate' shall include all lands, tenements, and hereditaments, corporeal and incorporeal," and that the term "succession" shall denote the devolution of title to any real estate.

"That every past or future disposition of real estate by will, deed, or laws of descent by reason whereof any person shall become beneficially entitled in possession or expectancy to any real estate or the income thereof upon the death of any person dying after the passing of this act shall be deemed to confer on the person entitled by reason of any such disposition a 'succession.'"

That "there shall be levied and paid to the United States in respect of every such succession as aforesaid, according to the value thereof," duties at rates depending upon the degree of consanguinity between predecessor and successor; and where the successor is "a stranger in blood," at the rate of six percent.

That the duty

"shall be paid at the time when the successor, or any person in his right or on his behalf, shall become entitled in possession to his succession, or to the receipt of the income and profits thereof"

except that if it afterwards becomes more valuable by the determination of a prior charge upon or interest in it, an additional duty shall then be paid on its increased value.


"the interest of any successor in moneys to arise from the sale of real estate, under any trust for the sale thereof shall be deemed to be a succession chargeable with duty under this act, and the said duty shall be paid by the trustee, executor, or other person having control of the funds."

Also, that

"the interest of any successor in personal property,

Page 90 U. S. 338

subject to any trust for the investment thereof in the purchase of real estate to which the successor would be absolutely entitled, shall be chargeable with duty as above."

The succession tax is by the act creating it [Footnote 4] made a "lien" on the land, "in respect whereof" it is laid, and is to be "collected by the same officers, in the same manner, and by the same processes as direct taxes upon lands under the authority of the United States." [Footnote 5]

By the same statute which imposes the duty on the succession to real property, a duty is also laid on legacies and distributive shares of personal property. [Footnote 6] But while the rates of duty, as in the case of real property, vary with the degree of consanguinity, all personal property passing from wife to husband is exempt from tax, as well as that which passes from husband to wife, the succession to real property being exempt only in the latter case. [Footnote 7] chanrobles.com-red

Page 90 U. S. 345


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