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vict the defendant, but, in testing that, five years before the homicide, its sufficiency, it must exclude the the wife objected to a lamp being hypothesis that somebody else com- lighted in the room, stating that she mitted the offense. While this is was afraid that a former husband the rule laid down with reference would kill her. to the charge of the court on circum- In State v. McCoy (1892) 111 Mo. stantial evidence, the testimony itself 517, 20 S. W. 240, it was said: “Decan hardly be circumscribed with such fendant also offered to prove by himlimitations; the rule as to circumstan- self declarations made to him by the tial evidence being, as to its admis- deceased, that one Wood was a former sibility, that every circumstance, how- lover of hers, and had come from ever remote, that may tend to shed Canada and had threatened to kill her. any light upon the issue in the case, These declarations were not claimed is admissible. So that, in the admis- to be a part of the res gesta nor dying sion of testimony, the rule, as we un- declarations, and were most clearly inderstand it, is more latitudinous. In competent. The

state cannot other words, the circumstances them- bound by the admissions of persons selves, upon any given theory, may not parties to the record.” not present an hypothesis entirely rea- In Woolfolk v. State (1890) 85 Ga. sonable. Still it would not follow that 69, 11 S. E. 814, the defendant was insuch circumstances are not admissi- dicted and tried for the murder of his ble, or that the jury would not have a father. There were also eight other right to consider them in connection indictments against him for killing at with other circumstances and theories the same time and place seven other in the case. This case is of a peculiar persons. He offered to prove by his character. Generally, in cases of a sister that she was at the father's circumstantial character, some motive house when the news came that one is assigned to the perpetrator of the Caldwell had broken out of jail, and homicide. In this transaction the de- that she got up in the night to get fendant and his brother, prior to the some water and dropped the dipper homicide, appear to have been on the into the bucket, and that this caused most friendly terms with the deceased. her father to jump up suddenly very It appears that others in that com- much frightened. The defendant then munity, or who had previously lived offered to prove that her father had there, entertained feelings of hostility said that since he had put Caldwell in and bitter animosity against the de- jail, he was very uneasy and apprehenceased. The defendant proposed to sive for fear Caldwell and his folks prove such hostility on the part of two or friends would do him injury. This such persons, and there appears in explanation was offered as the exthe record some evidence of the prox- planation of his fright. Testimony imity, on the day of the homicide, of was also offered to prove that the deother persons, whose identity was not ceased had expressed considerable aprecognized. In a case of this charac- prehension of danger from the negroes ter, it was the duty of the court to on his place. It was held that there admit every fact and circumstance was no error in refusing to admit this that tended to establish the theory testimony. The court said: “It was that any other person than the defend- immaterial and irrelevant, and would ant committed the homicide. This was shed no light upon the real question in called for in order to enable the jury the case, as to who was the perpetrato explore every avenue consistent tor of the crime.

Certainly the with the innocence of the defendant; fright of an old man, suddenly awakand, in our opinion, the testimony of- ened by the dropping of a dipper in fered should have been admitted.” a bucket, and his apprehension of in

In Brown v. State (1913) 74 Tex. jury from a person he had prosecuted Crim. Rep. 356, 169 S. W. 437, a prose- and sent to the penitentiary, could not cution for wife murder, it was held be admissible. When the case was that it was not permissible to show here before, we held that 'declarations

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made by one of the persons killed to of a motive on his part to kill the deher father, nearly a week before the' ceased was not admissible to exculpate killing, as to her fear that her life the defendant. Baker v. State (1898) was in danger from the defendant, and 122 Ala. 1, 26 So. 194; Josephine v. that from the way he treated her she State (1860) 39 Miss. 613.

Rawlinexpected to be killed, were inadmis- son's motives, however malignant, sible.' Woolfolk v. State (1888) 81 Ga. were, while quiescent, not at all incon552, 8 $. E. 724 (3). Still less would sistent with similar motives on deapprehensions as to a person oth- fendant's part and his actual commis. er than the defendant, not connected sion of the offense. For this reason by other evidence with the crime, be the court properly refused to admit admissible. It may have been the evidence to show deceased had prosetheory of the defendant that his father cuted Rawlinson for an assault growand his family were killed by the ne- ing out of their attentions to a womgroes on the place, but it has been his misfortune that he has been unable to In Goodlett v. State (1902) 136 Ala. show it, or by any proper evidence 39, 33 So. 892, the defendant offered to connect any of them with the killing." prove declarations made by the de

In State v. Patrick (1856) 48 N. C. ceased that a person other than the (3 Jones L.) 443, the defendant on a defendant had threatened her life. trial for murder offered evidence to The evidence was held to be inadmisprove that the deceased had declared, sible, the court saying: “The evidence some time before his death, that he offered by defendant of the declarawas afraid of a person other than the tions of the deceased that Simon Crook defendant, and expected that person had threatened her life was the barest would kill him yet. It was held that hearsay and inadmissible. Had Simon there was no principle of law under admitted to the witness that he comwhich such declarations could have mitted the homicide, his admission or been received.

confession would have been incompe. In Tatum v. State (1901) 131 Ala. tent. West v. State (1884) 76 Ala. 98; 32, 31 So. 369, a trial for murder, the Snow v. State (1877) 58 Ala. 372. The defendant offered to prove that on the fact that the evidence offered was a morning of the killing the witness declaration of the deceased to the witasked the deceased why he was carry- ness, instead of a statement by Simon ing a pistol, and that deceased replied to the witness, does not relieve it from to her that one Rawlinson had threat- being hearsay. Tatum v. State (Ala.) ened to kill him on sight, because of supra. some attentions the deceased had been In State v. Duncan (1846) 28 N. C. paying to a certain woman; that Raw- (6 Ired. L.) 236, wherein the prisoner linson had snapped a gun in the face offered to prove that certain other perof the deceased, and that the defend- sons harbored ill will against the deant had armed himself and was pre- ceased and had threatened him, it was pared to defend himself against Raw- held that such evidence was inadmislinson in an emergency. The trial sible as mere hearsay, and moreover court excluded the evidence from the could not tend to establish, under the consideration of the jury, and in sus- circumstances, that the defendant, taining this ruling it was said: "In who was charged with being an acthe absence of any testimony to con- cessory before the fact, was not also nect Rawlinson with the crime, proof guilty as charged.

W. M. C.

(- Wis. -, 172 N. W. 734.)

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FRED C. EBELING, Exr., etc., of John H. Ebeling, Deceased, et al.,


Wisconsin Supreme Court - May 27, 1919.

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(- Wis. — 172 N. W. 734.)

Constitutional law - reasonable classification tax on gift within speci

fied time of death. 1. The legislature may constitutionally tax all gifts made within six years of death, without taxing other gifts inter vivos, since it is based upon reasonable classification.

[See note on this question beginning on page 1523.] Tax inheritance deduction of of death, does not make the statute imFederal tax.

possible of administration. 2. The Federal estate tax is not a

Tax - inheritance - material portion

. proper deduction in computing a state

of estate. inheritance tax on a decedent's estate.

5. Gifts of $500 or $1,000, out of an - intent of statute absolute tax.

estate of over $300,000, are not a ma3. A statute providing that every

terial part, within the meaning of a gift within six years of the grantor's

statute taxing gifts of a material pordeath shall be construed to have been made in contemplation of death, with

tion of an estate, made within a speci

fied time before death.
in the meaning of the Inheritance Tax
Law, does not create merely a rule of

- what is material portion of estate. evidence, but makes such gifts abso- 6. Gifts of more than $75,000, made lutely taxable.

to three of decedent's children within Statute Constitution definite. one year, constitute a material portion ness.

of his estate of over $300,000, within 4. The use of the word "material," the meaning of a statute taxing gifts in defining the portion of an estate of a material portion of an estate, made which is given away in contemplation within a specified time before death.

APPEAL by the state and county from a judgment of the Circuit Court for Brown County (Graass, J.) affirming a judgment of the County Court, determining that certain gifts were not subject to inheritance tax in proceedings to determine inheritance. Reversed. Statement by Owen, J.:

From such judgment the state and The

county court of Brown county appealed. county, in determining the amount The estate was valued at $332,upon which inheritance taxes im- 819.33. Twelve thousand seven hunposed upon the estate of John H. dred and seventy-nine dollars and Ebeling, deceased, should be com- thirty-seven cents, the amount of

, puted, deducted the amount of the the Federal estate tax, was deducted Federal estate tax imposed upon the from this amount in determining estate, and determined that certain the amount upon which the inheritgifts made by decedent within six ance tax should be computed. The years prior to his death were not deceased died January 15, 1918. subject to an inheritance tax. The He had three children. Within six state and county appealed from the years prior to his death he made judgment to the circuit court for gifts to them as follows: December Brown county, where the judgment 22, 1912, $1,000 to each; November of the county court was affirmed. 22, 1912, $1,000 to each ; October 31,

1913, $500 to each; December, 1913, Black v. State, 113 Wis. 205, 90 Am. $200 to each; May, 1916, $500 to St. Rep. 853, 89 N. W. 522; Re Watson, each; June 30, 1917, $10,000 to

186 App. Div. 48, 174 N. Y. Supp. 19. each; August 18, 1917, $5,318.33 to

Unless the statute clearly defines each; and October 1, 1917, $10,000

what property is subject to taxation,

the court must hold it void for uncer to each.

tainty. The court found that neither of

Norton v. Reed, 6 Wis. 522. said gifts, nor all of them combined,

Whether or not a gift or transfer constituted a material part of the was made in contemplation of death is estate of said testator; that neither a question of fact, a judicial question of said gifts nor all of them together to be decided by the court. was or were made in the nature of a Blackmore & B. Inheritance Tax,

101; State v. Thompson (Re Dessert) final disposition or distribution of

154 Wis. 320, 46 L.R.A.(N.S.) 790, 142 said testator's estate; that no one of

N. W. 647, Ann. Cas. 1915B, 1084. said gifts was made by said testator

In construing the statute as to what in contemplation of death; and, fur

is meant by "material parts," and "in ther, that if the law raised any pre- nature of final distribution," all doubts sumption as to any of such gifts are to be resolved in favor of the citithat they were made in contempla- zen. tion of death, said presumption is State v. Pullman's Palace Car Co. 64 fully overcome by the evidence in Wis. 103, 23 N. W. 871; Smith v. the case.

Browning, 225 N. Y. 358, 122 N. E.

219; State ex rel. Wickham v. Nygaard, Messrs. John J. Blaine, Attorney 159 Wis. 403, 150 N. W. 513, Ann. Cas. General, E. E. Brossard, Assistant 1917A, 1065. Attorney General, and William Cook None of the gifts in question were for appellants.

made in contemplation of death. Mr. Samuel D. Hastings, for re

State v. Pabst, 139 Wis. 561, 121 N. spondents:

W. 351; State v. Thompson, supra; Only gifts made in contemplation of People v. Burkhalter, 247 111.

600, 139

Ill death are taxable.

Am. St. Rep. 351, 93 N. E. 379; Re Nunnemacher v. State, 129 Wis. 190, Spaulding, 49 App. Div. 541, 63 N. Y. 9 L.R.A.(N.S.) 121, 108 N. W. 627, 9

Supp. 694; Re Mahlstedt, 67 App. Div. Ann. Cas. 711; Knowlton v. Moore, 178 176, 73 N. Y. Supp. 818; Re Graves, 52 U. S. 56, 44 L. ed. 975, 20 Sup. Ct. Rep. Misc. 433, 103 N. Y. Supp. 571; Re 747.

Bullard, 76 App. Div. 207, 78 N. Y. A statute imposing a tax is to be

Supp. 491; People v. Kelley, 218 Ill. strictly construed in favor of the citi- 509, 75 N. E. 1038; Conway v. State, zen.

Ind. App. 120 N. E. 719. Re Hodges, 86 Misc. 367, 148 N. Y.

In ascertaining the residuary estate, Supp. 424; Ře Thorne, 44 App. Div.

the United States estate tax is to be de8, 60 N. Y. Supp. 419; Re_Vassar, 127 ducted as any other charge against the N. Y. 1, 27 N. E. 394; Re Bronson, 150

estate. N. Y. 1, 34 L.R.A. 238, 55 Am. St. Rep.

State ex rel. Smith v. Probate Ct, 139 632, 44 N. E. 707; State v. Pullman's

Minn. 210, 166 N. W. 125; Corbin v. Palace Car Co. 64 Wis. 89, 23 N. W.

Townshend, 92 Conn. 501, 103 Atl. 647; 871; State ex rel. Abbot v. McFetridge,

People v. Pasfield, 284 Ill. 450, 120 N. 64 Wis. 130, 24 N. W. 140; Re Fayer- E. 286; Re Roebling, — N. J. Eq. -, weather, 143 N. Y. 114, 38 N. E. 278.

104 Atl. 295; Knight's Estate, 261 Pa. If the amendment is construed as

537, 104 Atl. 765; Hooper v. Shaw, 176 passing over the line dividing gifts

Mass. 190, 57 N. E. 361; Hooper v. made in contemplation of death, and

Bradford, 178 Mass. 95, 59 N. E. 678. those not made in contemplation of death, and imposing a tax upon some

Owen, J., delivered the opinion of of the latter, but not all, no valid classi- the court: fication is made of those taxed and It has been held in Re Week, those not taxed.

Wis., 172 N. W. 732, decided hereBlack v. State, 113 Wis. 205, 90 Am.

with, that the FedSt. Rep. 853, 89 N. W. 522; Nunne

Tax-inherimacher v. State, supra.

eral estate tax is tance-deduction

of Federal tas. The classification by time is not rea

not a proper deducsonable,

tion in determining the amount upon

(- Wis. 172 N. W. 734.) which the state inheritance tax three years and the other four and should be computed. The county one-half years prior to his death. court erroneously allowed this de- This court held that the gifts were duction.

not subject to inheritance taxes. Prior to the enactment of chapter The circumstances of that case 643, Laws of 1913, § 1087-1, Stat., forcibly brought to the attention of imposed a tax upon three classes of the legislature the fact that, after a transfers of property: (1) By will; person had attained the age of (2) by intestate laws; and (3) by eighty-nine years, an age when he gifts made in contemplation of could not expect to live many more death of the donor or intended to years, when his thoughts naturally take effect in possession or enjoy- were concerned rather with the disment at or after such death. Chap- position of property already accuter 643 of the Laws of 1913 mulated than with the accumulation amended this section by adding at of more, he could bestow his propthe end of subdivision 3 the follow- erty upon the objects of his bounty, ing: "Every transfer by deed, and thus evade the inheritance tax. grant, bargain, sale or gift, made This decision was rendered May 31, within six years prior to the death 1913. The legislature was then in of the grantor, vendor or donor, of session. Ten days thereafter Senate

, a material part of his estate, or in Bill No. 575 was introduced by the the nature of a final disposition or joint committee on finance. This distribution thereof, and without an bill, without amendment, was apadequate valuable consideration, proved July 21st, and became chapshall be construed to have been ter 643 of the Laws of 1913. made in contemplation of death Now the question is this: Did within the meaning of this section." the legislature intend to make gifts

The state contends that the and transfers of property made amendment makes every gift of a within six years prior to death, abmaterial part of the estate of a de solutely taxable, or was it simply ceased person, when made within six providing а rule of evidence ? years prior to death, subject to an There can be little doubt that the inheritance tax. It is the contention legislation was prompted by the deof the respondents that the amend- cision in the Thompson Case. That ment does not have such conclusive was a case in which the state was a effect, and that it accomplishes no party. It was regarded as an immore than to make the gift, when portant case, not only because of the made within six years prior to amount involved, but as a precedeath, prima facie evidence of the

dent. The contention of the state fact that it was made in contempla

was rejected by the court. It seems tion of death, thereby shifting the

quite reasonable to suppose that the burden of proof upon that question. In the case of State v. Thompson ment, intended to do what it could

legislature, in enacting the amend(Re Dessert) 154 Wis. 320, 46

in the way of molding into law the L.R.A.(N.S.) 790, 142 N. W. 647,

doctrine contended for by the state Ann. Cas. 1915B, 1084, this court had under consideration the ques- the gift or transfer occupying within

in that case. If it intended to make tion of inheritance taxes due from

six years prior to death only prima the estate of one Joseph Dessert,

facie evidence of the fact that it was who died at the age of ninety-two. made in contemplation of death, the

, Practically his entire estate was

legislative response was certainly devised to his only daughter and sole

weak and puerile. In cases where heir, Stella D. Thompson. She took the facts are easily ascertainable, by the will about $200,000. During the burden of proof is of the merest the last six years of his life he gave advantage. It is only in cases where her approximately a half million dol- the proof is difficult to obtain, such lars, mainly in two gifts, one made as violations of the Excise Laws,

4 A.L.R -96.

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