No. 108 March Term, 1977, Appeal from Decree of the Court of Common Pleas of Erie County, Pennsylvania, Orphans' Court Division, No. 958 of 1976
Harvey D. McClure, Erie, for appellant.
John M. Duff, Deputy Atty. Gen., Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Roberts, J., filed a dissenting opinion.
Agnes L. Carlson died on March 21, 1975. In her will she named James D. Sawdy, her natural grandson, as one of the beneficiaries. Inheritance tax on the estate was assessed by the Commonwealth at $45,566.70. The executrix, appellant here, admitted tax liability in the amount of $35,789.47, and
has paid that amount. She has appealed, however, from the assessment's levy of the additional $9,777.23.
The court decided the matter on the basis of the following stipulated facts.
"The decedent had a son, one James Swenson, who married. He and his wife Frances had a child, James Swenson, Jr., who was the natural grandson of the decedent.
James Swenson, Sr., died and his widow Frances married one Douglas Sawdy. On December 15, 1947, Douglas Sawdy adopted James Swenson, Jr., and the latter's name was changed to James D. Sawdy."
Appellant contends that James D. Sawdy is a "lineal descendant" of the decedent and that therefore his share of the decedent's estate should be taxed at a rate of six percent. See Act of June 15, 1961, P.L. 373, Art. IV, § 403, as amended, 72 P.S. § 2485-403(1), Supp.1977-78, which provides,
"Inheritance tax upon the transfer of property passing to or for the use of any of the following shall be at ...