accrues when the estate vests on the death of the owner, and is not affected by transfers or agreements of the persons succeeding to the property." The right of the state to the tax vests, in point of time, at the time the estate vests, that is, upon the death of the owner; " and whether the succession is liable to be taxed is to be determined upon the conditions then existing.16 The time when the tax becomes due and payable varies more or less with the different statutes. In case payment is made within a specified time, the law usually allows a discount; in case payment is deferred beyond a time specified, interest is charged," of which more will be said in the concluding sections of this chapter. § 312. Limitation of Actions.-The generality of the statutes are not clear as to the time limited for the commencement of actions to enforce inheritance taxes. Provisions in the Massachusetts inheritance tax statute that all taxes shall be due and payable at the expiration of two years from the qualification of the executor, and that the treasurer shall bring suit within six months after the taxes are due and payable, do not prevent the maintenance of a suit after the expiration of two years and six months from such qualification, where the executor is made liable for the taxes until paid, during which time they are a lien on the property. And in that state a petition by the treasurer and receiver general of the commonwealth, praying the probate court to determine 18 14 Estate of Graves, 242 Ill. 212, 89 N. E. 978; Estate of Cummings, 63 Misc. Rep. 621, 118 N. Y. Supp. 684. 15 National Safe Deposit Co. v. Stead, 250 Ill. 584, Ann. Cas. 1912B, 430, 95 N. E. 973. 16 Pierce v. Stevens, 205 Mass. 219, 91 N. E. 319. 17 Commonwealth v. Gaulbert, 134 Ky. 157, 119 S. W. 779. 18 Howe v. Howe, 179 Mass. 546, 55 L. R. A. 626, 61 N. E. 225. whether an estate is subject to an inheritance tax and to fix its amount, is not barred either by the general or the special statute of limitations, although filed more than six years after the tax became payable.1o In California, according to a nisi prius decision, the defense of the statute of limitations is applicable to a proceeding against executors for the collection of the inheritance tax. Such a proceeding is barred, under the provisions of section 338 of the Code of Civil Procedure, by the lapse of three years after the accrual of the liability; and the liability is complete at or before the close of the administration. If the executor is regarded as occupying the position of a trustee for the state, this relation does not continue so as to prevent the running of the statute after proceedings have been had to fix the tax, and the amount thereof has been fixed and ordered paid, and the residue of the estate distributed and the administration closed.20 By statute enacted in 1899, the New York legislature declared that the statute of limitations should no longer be a defense to proceedings to collect the inheritance tax, except that as to real estate in the hands of bona fide purchasers the tax should be presumed to be paid and cease to be a lien after six years from the date of its accrual. This statute was made retrospective."1 The provision of the Pennsylvania statute that "the lien of the collateral inheritance tax shall continue until the said tax is settled and satisfied; provided, that the said lien shall be limited to the property chargeable 19 Bradford v. Storey, 189 Mass. 104, 75 N. E. 256. In this case it is said that a tax is not a debt in the ordinary sense of the word, and is not founded upon a contract, express or implied. 20 Estate of Gordon, 2 Cof. Pro. 138. 21 Estate of Moench, 39 Misc. Rep. 480, 80 N. Y. Supp. 222; Estate of Strang, 117 App. Div. 796, 102 N. Y. Supp. 1062. It has been held that a proceeding in New York to enforce the tax cannot be initiated until the expiration of eighteen months after the death of the decedent: Frazer v. People, 6 Dem. Sur. 174; Estate of Moench, 39 Misc. Rep. 480, 88 N. Y. Supp. 222. therewith: and provided, further, that all collateral inheritance taxes shall be sued for within five years after they are due and legally demandable, otherwise they shall be presumed to have been paid, and cease to be a lien as against any purchasers of real estate"-does not extinguish the personal liability of heirs, devisees and legatees at the end of five years. The proviso is intended simply to quiet the title of purchasers of real estate. When there is no purchaser to protect, the lien of taxes due upon real estate, as well as the debt itself, will continue after five years.22 But a statute of Tennessee, identical with the Pennsylvania statute, has been given a broader construction and been held not merely applicable to purchasers of realty, but to establish a general limitation of five years in this class of cases.23 After forty-two years, an inheritance tax will be presumed to have been paid, not only on the ground of lapse of time, but from the presumption that the executor or administrator did his duty under his oath of office.24 § 313. Costs, Fees, and Commissions.-Where a request to the state authorities is made to the probate court to make an order for the payment of an inheritance tax in excess of the amount chargeable under the law, or an appeal is taken by the attorney general from an order of the probate court fixing the tax, a “civil proceeding is instituted by an officer of the state wherein the people are, under the Michigan statute, liable for costs to the same extent as though the proceeding were instituted by an individual.25 Under the New York transfer tax act of 1892, the costs and disbursements to which the district attorney 22 Estate of Cullen, 142 Pa. 18, 21 Atl. 781. may deem himself entitled in case of success must be taxed in the same manner as costs in other proceedings in the surrogate's court. In order to entitle himself to a certificate that there was probable cause for issuing a citation to enforce the tax, so that the treasurer shall pay the expenses incurred in case the proceeding is unsuccessful, he must furnish satisfactory evidence to the surrogate that there was probable cause. An affidavit that simply states that he commenced the proceeding in good faith is not enough.26 Under the Pennsylvania statute of 1887, the register of wills of Allegheny county is entitled to commissions on the collateral inheritance tax collected by him and paid in to the state treasury." In Maryland a register of wills is not entitled to retain, as extra compensation, over and above the salary and expenses of his office allowed by the constitution, the five per cent commission allowed by law on the amount of taxes on collateral inheritances.28 In Tennessee, where the attorney of the county court clerk successfully prosecutes an action to recover an inheritance tax, he is entitled to a fee for his services, to be paid by the delinquent." Where the clerk employs the state revenue agent to sue for a tax, and the suit is brought and tried in the chancery court without objection, the agent is entitled, in addition to his salary, to a fee, in his capacity as attorney, of five per cent of the tax. The provisions of the act of 1897 to the effect that the fees provided by law shall be taxed against the losing party and turned over to the state, require that costs allowed a district attorney general in an inheritance tax case shall be so turned over 31 26 Estate of McCarthy, 5 Misc. Rep. 276, 25 N. Y. Supp. 987. 27 Allegheny County v. Stengel, 213 Pa. 493, 63 Atl. 58. 28 Banks v. State, 60 Md. 305. 29 Knox v. Emerson, 123 Tenn. 409, 131 S. W. 972. The Louisiana statute does not provide for the payment of fees of an attorney employed by the tax collector to prosecute an action to recover a succession tax. 32 § 314. Adjudication in Another State-Full Faith and Credit. The conclusiveness attending, under the New Jersey practice, the probate of a will, the settlement of the executor's account, and the final distribution of the estate pursuant to orders which the court made, after having decreed that all those who had neglected to bring in their claims were forever barred from their action therefor against the executor, renders repugnant to the full faith and credit clause of the United States constitution a subsequent assessment, under the New York laws, upon the personal estate of the decedent as a resident of that state, of a succession tax, which, under such laws, is made a lien on the property and a personal obligation of the transferees and executors.33 This adjudication by the supreme court of the United States has been distinguished in a New York case where Judge Miller says that as he reads the opinion of the United States court it decided: (1) That the adjudication respecting domicile was not binding upon anybody not a party to the proceeding. (2) That proceedings for the probate of wills and for the administration and distribution of the estates of decedents are proceedings in rem. (3) That such proceedings in their effect upon the res before the court are binding on all the world to the extent that they are conclusive within the jurisdiction where held. (4) That upon the proof of the New Jersey law, meager and unsatis 82 Succession of Kohn, 115 La. 71, 38 South. 898; Succession of Levy, 115 La. 377, 5 Ann. Cas. 871, 8 L. R. A., N. S., 1180, 39 South. 37, affirmed, Cahen v. Brewster, 203 U. S. 543, 8 Ann. Cas. 215, 51 L. Ed. 310, 27 Sup. Ct. Rep. 174. 33 Tilt v. Kelsey, 207 U. S. 43, 52 L. Ed. 95, 28 Sup. Ct. Rep. 1. |