The injustice of the result reached in the majority opinion stands out clearly when it is noted that the residuary legatees are required to pay a legacy tax on the sum of $622,617.98. whereas they will receive from the estate only $522,617.98. Prior decisions of this court clearly indicate that this cannot be done.
The following statement from Williams v. State, 81 N.H. 341, 355, has never been questioned, although the case was overruled upon another point in Amoskeag Trust Co. v. Dartmouth College, 89 N.H. 471, 475: "The state tax is imposed upon or measured by the amount passing to each legatee or heir. . . . If by virtue of federal legislation or for any other reason a less amount passes under the laws of this *Page 386 state, a less tax is imposed. Kingsbury v. Bazeley, 75 N.H. 13." On the contrary, the above passage was quoted and approved in Caskey v. State,93 N.H. 438, 441. "From the above it is clear that all the State is entitled to tax is what the residuary legatee receives." Caskey v. State, supra.
Here, by reason of the fact that the executors made an adjustment of the widow's claims against the estate amounting to $100,000, the amount coming into the hands of the residuary legatees is less by that amount than it would have been if the will of the testator had been allowed to take effect according to its terms. This situation clearly comes within the language above quoted: "If by virtue of federal legislation or for any other reason a less amount passes under the laws of this state, a less tax is imposed." (Italics supplied).
The attempt made in the opinion to distinguish the Caskey case comes to nothing. There the loss "was due to a sale by the executors of stocks and bonds in a falling market." Here the loss was due to the conduct of the executors in making a settlement with the widow. This appears to be a distinction without a difference and no reason appears why any other principle should be applied in deciding the present case than that which was invoked in the Caskey decision. It is said that in the Caskey action that the loss was beyond the control of the legatees. If this fact is of any consequence, which does not appear to be the case, it may be assumed, in the absence of any statement to the contrary in the record, that the action of the executors was equally beyond the control of the residuary legatees.