(2,) Foreclosure by Action,1

Howell V. Leavitt

95 New York, 617. - 1884.

[Reported herein at p. 1043.]

(3.) Foreclosure by Advertisement or under the power of sale.2

Sherman V. Willett

42 New York, 146. - 1870. [Reported herein at p. 209.]

IV. Title by devise.3

JACKSON ex dem.

Wells V. Wells

9 Johnson (N. Y.), 222. - 1812. [Reported herein at p. 513.] 4

Stall V. Wilbur

77 New York, 158. - 1879. [Reported herein at p. 207.]

Magoun V. Illinois Trust And Savings Bank

18 Supreme Court Reporter (U. S.), 594. - 1898.

Mr. Justice McKenna, after stating the case, delivered the opinion of the court. - Legacy and inheritance taxes are not new in our laws. They have existed in Pennsylvania for over sixty years, and have been enacted in other States. They are not new in the laws of other countries. In Tennessee v. Alston, 94 Tenn. 674, 30 S. W. 750, Judge Wilkes gave a short history of them, as follows: " Such taxes were recognized by the Roman law. I Gibbon's

1 For the New York statute see §§ 1626-1630, Code Civ. Pro. - Ed.

2 For the New York statute see §§ 2387-2409, Code Civ. Pro. - Ed.

3 The law as to " succession to the estates of deceased persons " is the subject of a separate course; the law of " devise " and " descent " will not, therefore, be treated at length here. - Ed.

4See also cases reported at pp. 53, 514 and 516, supra. - Ed.

Decline and Fall of the Roman Empire, pp. 163, 164. They were adopted in England in 1780, and have been much extended since that date. Dowell's History of Taxation in England, 148; Acts 20 Geo. III., c. 28, 45 Geo. III., c. 28, and 16 & 17 Vict., c. 51; Green v. Croft, 2 H. Bl. 30; Hill v. Atkinson, 2 Mer. 45. Such taxes are now in force generally in the countries of Europe. Review of Reviews, Feb., 1893. In the United States they were enacted in Pennsylvania in 1826; Maryland, 1844; Delaware, 1869; West Virginia, 1887, and still more recently in Connecticut, New Jersey, Ohio, Maine, Massachusetts, 1891; Tennessee in 1891 (chapter 25, now repealed by chapter 174, Acts 1893). They were adopted in North Carolina in 1846, but repealed in 1883; were enacted in Virginia in 1844, repealed in 1855, re-enacted in 1863, and repealed in 1884." Other States have also enacted them - Minnesota, by constitutional provision.

The constitutionality of the taxes has been declared, and the principles upon which they are based explained in United States v. Perkins, 163 U. S. 625, 628, 16 Sup. Ct. 1073; Strode v. Com., 52 Pa. St. 181; Eyre v. Jacob, 14 Grat. 422; Schoolfield v. Lynchburg, 78 Va. 366; Maryland v. Dalrymple, 70 Md. 298, 17 Atl. 82; Clapp v. Mason, 94 U. S. 583; In re Atariam's Estate, 141 N. Y. 479, 36 N. E. 505; Maine v. Hamlin, 86 Me. 495, 30 Atl. 76; Tennessee v. Alston, 94 Tenn. 674, 30 S. W. 750; In re Wilmerding's Estate, 117 Cal. 281,49 Pac 181; Dos P. Colat. Inher. Tax Law, 20; Minot v. Winthrop 162 Mass. 113, 38 N. E. 512; Gelssthorpe, v. Eurnell(Mont.) 51 Pac. 267. See also Scholey v.Rew, 23 Wall. 331.

It is not necessary to review these cases, or state at length the reasoning by which they are supported. They are based on two principles: (1) An inheritance taxis not one on property, but one on the succession; (2) the right to take property by devise or descent is the creature of the law, and not a natural right, - a privilege, and therefore the authority which confers it may impose conditions upon it. From these principles it is deduced that the States may tax the privilege, discriminate between relatives, and between these and strangers, and grant exemptions, and are not precluded from this power by the provisions of the respective State constitutions requiring uniformity and equality of taxation.

The second principle was given prominence in the arguments at bar. The appellee claimed that the power of the State could be exerted to the extent of making the State the heir to everybody, and the appellant asserted a natural right of children to inherit. Of the former proposition we are not required to express an opinion. Nor, indeed, of the latter, for appellant conceded that testamentary disposition and inheritance were subject to regulation. However, as pertinent to the subject, decisions of this court may be cited. In United States v. Fox, 94 U. S. 315-321, a law of the State of New York confining devises to natural persons and corporations created under its laws was considered, and a devise of land to the United States was held void. The court said:

"The power of the State to regulate the tenure of real property within her limits, and the modes of its acquisition and transfer, and the rules of its descent, and the extent to which a testamentary disposition of it may be exercised by its owners, is undoubted. It is an established principle of law, everywhere recognized, arising from the necessity of the case, that the disposition of immovable property, whether by deed, descent, or by any other mode, is exclusively subject to the government within whose jurisdiction the property is situated. McCormick v. Sullivant, 10 Wheat. 202.

"Statutes of wills, as is justly observed by the Court of Appeals, are enabling acts, and prior to the statute of 32 Hen. VIII. there was no general power at common law to devise lands. The power was opposed to the feudal policy of holding lands inalienable without the consent of the lord. The English statute of wills became a part of the law of New York upon the adoption of her constitution in 1777, and, with some modifications in its language, remains so at this day. Every person must therefore, devise his lands in that State within the limitations of the statute, or he cannot devise them at all. His power is bounded by its conditions."

In Mager v. Grima, 8 How. 493, there was considered the validity of a law of Louisiana imposing a tax of 10 per cent, upon legacies, when the legatee was neither a citizen of the United States nor domiciled therein. Mr. Chief Justice Taney considered the legal question of easy solution, and disposed of it summarily. He said: "This is a plain case, and when the facts are stated the questions of law may be easily disposed of in a few words." After stating the case briefly, he further said: