Appeal, No. 354, Jan. T., 1960, from decree of Orphans' Court of Philadelphia County, No. 3061 of 1959, in re estate of Anna O'Donnell Feitz, deceased. Decree reversed.
Ralph S. Snyder, Deputy Attorney General, with him Irvin Stander, Special Assistant Attorney General, and Anne X. Alpern, Attorney General, for Commonwealth, appellant.
Abraham J. Levinson, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES.
This appeal presents only one question: is the value of the statutory right to apply, after death, for the transfer of a restaurant liquor license, owned by decedent at the time of death, subject to inclusion as part of the decedent's estate taxable for inheritance tax purposes?*fn1
On January 16, 1959, Anna O. Feitz died testate, in Philadelphia. By her will she provided, inter alia: "Second: I give, devise and bequeath to Joseph Goldman, all my right, title and interest in and to the restaurant liquor license issued for premises 177 West Girard Avenue, and in and to any other license which I hereafter may hold and issued by the Pennsylvania Liquor Control Board." Goldman was named her executor.
As executor, Goldman, on January 26, 1959, requested the Liquor Control Board to transfer the decedent's
liquor license to himself as an individual in accordance with decedent's testamentary direction. On March 4, 1959, this transfer was completed.
In the appraisement of decedent's personal estate for inheritance tax purposes, the Commonwealth included the value ($14,500) of the right to apply for a transfer of decedent's liquor license. From such appraisement, Goldman appealed to the orphans' court of Philadelphia County averring that such value was not part of decedent's taxable estate. Judge SAYLOR dismissed the appeal and held such value taxable. The court en banc, in reliance upon Ryan Estate, 375 Pa. 42, 99 A.2d 562, reversed Judge SAYLOR and held such value not taxable. From that decree, this appeal has been taken by the Commonwealth.
The Commonwealth's argument is two-fold: (1) that the instant factual and legal situation is distinguishable from the situation presented in Ryan; (2) that, even if it were otherwise, Ryan was erroneously decided and should be overruled.
To determine its rationale and apposition to the present situation Ryan must be examined. In Ryan, the decedent, owner of a restaurant liquor license, died intestate; upon his death, on application of his widow, as administratrix, the license was transferred by the Board to the widow as the surviving spouse under the provisions of the then applicable § 408(c) of the Liquor Control Act of 1937, P.L. 1762,*fn2 as amended, which provided, inter alia: "... In the case of the death of a licensee, the board may transfer the license to the surviving spouse or personal representative or to a person designated by him." The fact that the license transfer
application had been signed by the surviving spouse in her capacity as administratrix of the estate was considered unimportant inasmuch as the Liquor Control Act, supra, gave the surviving spouse the right to have the license transferred to herself and "this right would not have been abrogated had another individual been appointed administrator." Ryan held that the value of the license and the value of the right to apply for a transfer thereof were not taxable. The Commonwealth contends that Ryan must be restricted to its specific factual situation and is not actually ...