ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS.
MR. JUSTICE McKENNA delivered the opinion of the court.
The case presents the question of the constitutionality, under the Fourteenth Amendment of the Constitution of the United States, of section 2 of the inheritance tax law of the State of Illinois. Rev. Stat. Illinois, 1895, c. 120, par. 308. The constitutionality of the law was passed upon in Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283, and is there set out. As much of section 2 as is necessary to quote is as follows:
"SEC. 2. When any person shall bequeath or devise any property or interest therein or income therefrom to mother, father, husband, wife, brother and sister, the widow of the son, or a lineal descendant during the life of for a term of years or (and) remainder to the collateral heir of the decedent, or to the stranger in blood or to the body politic or corporate at their decease, or on the expiration of such term, the said life estate or estates for a term of years shall not be subject to any tax and the property so passing shall be appraised immediately after the death at what was the fair market value thereof at the time of the death of the decedent in the manner hereinafter provided, and after deducting therefrom the value of said life estate, or term of years, the tax transcribed by this act on the remainder shall be immediately due and payable to the treasurer of the proper county, and, together with the interests thereon, shall be and remain a lien on said property until the same is paid; . . ."
It is claimed, however, that the question presented in this case was not passed upon in Magoun v. Illinois Trust & Savings Bank. If this be not so, if this case cannot be distinguished from that, it follows necessarily that the judgment sought to be reviewed must be affirmed.
The proceedings originated in the County Court of Cook County, Illinois, which entered a judgment order assessing taxes, under the law in controversy, upon the property and estates passing to the plaintiffs in error. The order was affirmed by the Supreme Court of the State. 189 Illinois, 472.
Albert M. Billings, a resident of Chicago, died in that city, February 7, 1897. He left surviving him a widow, Augusta S. Billings; a son, Cornelius K. G. Billings, one of the plaintiffs in error, and grandson, Albert M. Billings Ruddock, who is the other plaintiff in error. He also left a son by a former marriage, with whom this record is not concerned. His estate was very large, and he devised and bequeathed it all to his wife, excepting certain reservations, during her natural life. How it should be divided, then, the will proceeded to provide as follows:
"I do also herein give and bequeath to my son Cornelius
Kingsley Garrison Billings, and to my grandson Albert M. Billings Ruddock, to be held and owned by them at the death of my wife Augusta S. Billings as is hereinafter explained and set forth, all the property and estate herein bequeathed to her my wife not otherwise disposed of by my said executors hereinafter named, in the manner following to wit: Two thirds thereof to my son C. K. G. Billings and one third thereof to my grandson Albert M. Billings Ruddock to be held and owned by them as above stated during their lifetime, and should my son C. K. G. Billings die, not leaving a living child or children of his own issue, the property herein bequeathed to him shall revert and be held and owned by my grandchild Albert M. Billings Ruddock during his lifetime, and should my grandson Albert M. Billings Ruddock die not leaving a child or children of his own issue, then all the property and estate herein bequeathed to him shall revert and become the property and estate of my brother John D. Billings (should he be alive at that time) and my living nephews and nieces who shall be living at the time of the death of my said grandson, as aforesaid, said brother, nieces and nephews to share and share alike in said estate."
The will, therefore, created a life estate in the widow in the entire estate, and at her death life estates of two thirds and one third of the property bequeathed respectively to the testator's son and grandson, the plaintiffs in error.
The widow renounced the provision made for her, and elected to take in lieu thereof her dower and legal share, and the estates to the plaintiffs in error accrued at once. The County Court appointed an appraiser to fix the fair market value of the estates for the purpose of assessing the inheritance tax as provided by the statute. "The widow's dower award," to quote from the opinion of the Supreme Court, "and one third of the personalty were appraised at the total sum of $2,363,151.75, the tax upon which, after deducting the $20,000 exemption, was fixed at $23,443.53. The life interest (as it was decreed to be) of said ...