Estate of Harker

DORAN, J.

This is an appeal from an order denying the application of the executrix for refund of inheritance tax erroneously paid.

The record on appeal consists of the clerk’s transcript and a settled statement in lieu of a reporter’s transcript. There is no dispute as to the facts.

Briefly, the facts are as follows: Mabel Barnes Harker, the decedent, died October 6, 1946. On April 8, 1947, Edna B. Downs, the executrix and appellant herein paid the state inheritance tax to the county treasurer, “under protest and under a claim that the said executrix was entitled to a 5% discount credit on account of said tax. A written protest accompanied the payment.” “On September 12, 1947, the court made its order fixing the inheritance tax due the State of California at $2,418.67, which sum, less 5% or $120.94, makes the correct amount of inheritance tax payable to the State of California as $2,297.73. The order fixing the tax was duly entered in the office of the clerk of the court. In making the payment the executrix overpaid the amount of inheritance tax due the State of California in the sum of $871.02, the tax being paid on a high contingency. On October 25, 1947, the executrix and the controller of the State of California entered into a stipulation stipulating that the Superior Court of the County of Los Angeles, State of California might forthwith

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make its order ordering the auditor of the county of Los Angeles to draw his warrant upon the treasurer of the County of Los Angeles in favor of the executrix in the sum of $750.08, payable out of any inheritance tax moneys in his hands or custody and ordering the county treasurer to pay said warrant out of any inheritance tax funds in hand, and that the executrix might file in the estate proceedings an application for the refund of an additional sum of $120.94, the said sum of $120.94 being the difference between $750.08, the amount of refund claimed to be payable by the controller of the State of California, and $871.02, the amount of refund claimed to be payable by the executrix. The court on October 30, 1947, pursuant to said stipulation made its order directing the payment of the sum of $750.08 as a refund on account of the overpayment, leaving unpaid the sum of $120.94.

“On October 30, 1947, the executrix filed her application for refund of inheritance tax erroneously paid, setting forth the foregoing facts, and additional facts concerning the computation of time in which the tax could be paid and the discount allowed, and praying that the sum of $120.94 be directed to be paid to her in accordance with the law. ’ ’