Succession of Vatter

OVERTON, J. This case, prior to the reorganization of this court, under the Constitution of 1921, was assigned to Chief Justice F. A. MONROE, who has since retired. Before retiring, he prepared an opinion in it, which we find in the record. The opinion, however, was not handed down by him, for the reason that it became necessary to refix the case for argument. Since then, it has been argued before the court, as at present constituted. As the members' of the court, after consultation, have reached the same conclusion reached in that opinion, and for the same reasons, the opinion and the decree hare been adopted as the opinion and the decree of the court, and are here set forth and rendered as such. The opinion and the decree are as follows, to wit: Some seven months after the death' of Frank Yatter, the ex officio inheritance tax collector for the parish of Orleans obtained the appointment of a notary, authorized to make a search for any will that the decedent may have left; and, the search having been made, and no will found, he ruled the heirs into court to show cause why they should not file‘a descriptive list of the property left by decedent, stating the cash value of the same, and why the inheritance tax due by them should not be fixed, together with the fee of the attorney of the collector. The heirs made a return to the effect that they were in possession of no property forming part of the estate of decedent, and could furnish no detailed statement with respect thereto; and thereupon William J. Rand, a son-in-law of the decedent, was called to the stand by the counsel for the collector and questioned at some length, with the result that, he testified that decedent had given his property to his children from year to year, and, as we understand, had parted with the last of it some five or six months prior to his death. Counsel then began asking some questions which were objected to, and he made the statement: “I want to state wbat I desire to prove. The tax collector now endeavors to show by this *607 witness that deceased possessed a large amount of property, subject to the inheritance tax, some six or eight months previous to his decease; but, more than 90 days previous to his decease, the deceased made a transfer, for apparent consideration, fraudulently, and for the purpose of avoiding the inheritance tax law, of all bis assets, to his heirs.” “To which” (reads the note of evidence') “counsel for defendants objects, on the ground that the state and the inheritance tax collector are not at interest to question the validity of any transfer or donation made to any of the heirs, prior to 90 days preceding the death of decedent.” The objection was sustained; the witness testified that decedent made no transfers of his property to his heirs, within 90 days preceding his death, and that he left no property when he died, and it was admitted that other witnesses would testify to the same effect. The rule was dismissed, and the inheritance tax collector brings up the appeal. Opinion. [1, 2] The decision of the question presented depends upon the interpretation that may be placed on section 3 of Act 51 of 1918, p. 76, amending and re-enacting section 18 of act 109 of 1906, and reading as follows: i “The burden of proving facts establishing exemptions from the tax imposed by this act is upon the person claiming exemption. “All donations or transfers of property for inadequate consideration, within 90 days prior to the death of the owner thereof, shall bfe presumed to have been made in avoidance of the tax herein levied, and, unless said presumptions shall be overcome by sufficient evidence, such property shall be deemed a part of the succession of the person who has so donated or alienated said property, for purposes of computing the inheritance tax due by the succession, legatees or heirs of such person.” The fact that a donation or transfer of property, made within 90 days preceding the death of a person whose estate would be liable for the inheritance tax, carries with it a presumption that it was made to escape that tax, does not deprive the state of the right to collect the tax upon property owned by the decedent at the time of the death, even though it may- have been, apparently, donated or transferred more than 90 days prior to that event. The only effect of the provision above quoted is to establish a presumption with respect to transfers made within the 90-day period, which does not exist with respect to those made at an earlier period. The judgment appealed from is therefore annulled, and the case is remanded to be proceeded with according to law and to the views thus 'expressed; the costs of the appeal to be paid by the appellees.