enough to sustain a provision imposing a tax on the right of sucsession by will.2

1In re Macky, 45 Colo. 316, 102 P. 1075. See In re Morris, 138 N. C. 259, 50 S. E. 682.

2 In re White, 42 Wash. 360, 84 P. 831.

Under the Tennessee Statute of 1909, c. 479, sec. 20, providing for the taxation of "inheritances," it was claimed that the word "inheritances" is to be limited to cases of intestacy. The court observes that if this was so the statute might be void, as class legislation; and that the revenue statutes should receive a "fair construction to effect the end for which they were intended." The court notes that the civil law definition of the word "inheritances" is "the succession to all rights of the deceased"; and is of two kinds, by will and by the operation of law. The court concludes that it is inconceivable that the legislature intended by the term inheritance to confine this tax to those taking as heirs or next of kin. Knox v. Emerson, 123 Tenn. 409, 131 S. W. 972. See "Smith's Wealth of Nations," Book 5, c. 2.

Sec. 3. Legacy Tax.

A tax upon an interest in personal property on the death of another is a legacy tax.

A

The term "succession tax" is of the broadest significance. tax upon an interest in real estate could be aptly termed a succession

tax.

In re Macky, 45 Colo. 316, 102 P. 1075.

Sec. 5. Legacy and Succession Tax Distinguished.

A legacy duty should be distinguished from a succession tax, as the former taxes a specific inheritance or bequest, while the latter taxes a transfer of property in general.

The New Jersey statute of 1894 differs from the New York act of 1892, which assumes to tax the transfer of property within the jurisdiction, and the New Jersey statute of 1894 does not undertake to tax all transfers of property within the jurisdiction, but only taxes an inheritance, distribution, bequest, or devise. In this respect the New Jersey statute differs also from the Maryland statute construed in State v. Dalrymple, 70 Md. 594, 17 A. 82, 3 L. R. A. 372. For the same reason the question is different from what it is in Massachusetts, as in Greves v. Shaw, 173 Mass. 205, 53 N. E. 372. In short, the New Jersey statute imposes a legacy duty and not a transfer or succession tax, as was decided in reference to the English statute in Thompson v. Advocate General, 12 Cl. & F. 1. Neilson v. Russell, 76 N. J. L. 655, 71 A. 286, reversing 76 N. J. L. 27, 69 A. 476.

Sec. 6. Residence, Domicile, etc.

The terms residence, abode, domicile, and kindred terms differ somewhat in meaning, but when used in statutes similar to the Illinois inheritance statute have frequently been held to be

synonymous.

In re Moir, 207 Ill. 180, 69 N. E. 905, 99 Am. St. Rep. 205.

§ 10.

Right to Receive Rather than Right to Transmit is Taxed.

196

Booth v. Commonwealth, 130 Ky. 88, 113 S. W. 61, citing State v. Switzler, 143 Mo. 287, 45 S. W. 245. Minot v. Winthrop, 162 Mass. 113, 122, 26 L. R. A. 259, Kingsbury v. Chapin, Mass. 533, 537, 82 N. E. 700. In re Touhy, 35 Mont. 431, 90 P. 170, 172. Scholey v. Rew, 90 U. S. (23 Wall.) 331. Knowlton v. Moore, 178 U. S. 41, 81, 20 S. Ct. 747, 44 L. Ed. 969. The tax laid by the United States statute of 1864 is not a direct tax but instead of that is plainly an excise tax authorized by the United States Constitution, sec. 8, art. 1. The succession or devolution of real estate is the subject-matter of the tax or duty. "Successor is employed in the act as the correlative to predecessor, and the succession or devolution of the real estate is the subject-matter of the tax or duty, or, in other words, it is the right to become the successor of real estate upon the death of the predecessor, whether the devolution or disposition of the same is effected by will, deed, or laws of descent, from a grantor, testator, ancestor, or other person from whom the interest of the successor has been or shall be derived; nor is the question affected in the least by the fact that the tax or duty is made a lien upon the land, as the lien is merely an appropriate regulation to secure the collection of the exaction." Per Clifford, J., in Scholey v. Rew, 90 U. S. (23 Wall.) 331, 347.

See further, post, s. 28, as to derivation of power to lay tax.

Sec. 8. A Revenue Act.

Inheritance taxes have been properly denominated revenue taxation.

Succession of Givanovich, 50 La. Ann. 625.

Sec. 9. Not a Property Tax.

The courts have held, with few exceptions,' that an inheritance tax is a legacy duty, or a tax on the succession, and is not a tax on the

property itself, even in those states which hold the right to inherit to be a natural property right. This result is reached, although the amount of the tax may be measured by the value of the property, although it is made a lien on property, or although the statute on its face levies a tax on property."

1State v. Switzler, 143 Mo. 287, 330, 45 S. W. 245, 40 L. R. A. 280, 65 Am. St. Rep. 653. In re Cope, 191 Pa. St. 1, 20, 43 A. 79, 29 Pittsb. Leg. J. N. S. 379, 45 L. R. A. 316, 71 Am. St. Rep. 749, 44 Wkly. Notes Cas. 89. (The direct inheritance act of 1897.)

Wis. St. 1889, c. 176, is not a tax upon a succession but upon the whole estate at its appraised valuation regardless of whether it is solvent or insolvent. In the case of an insolvent estate nothing would be left after the payment of debts for transmission, and in most estates there are likely to be sufficient debts to reduce the amount of such transmission far below the amount of such valuation. Besides, the amount of such tax is graduated by the amount of such appraisal and is to be paid by the executors at the time of filing the appraisal, notwithstanding they may only be interested as such officials and never succeed to any of such estate. Manifestly the burden imposed is not a succession tax but a tax upon the whole estate regardless of whether it is solvent or insolvent. State v. Mann, 76 Wis. 469, 478, 45 N. W. 526, 46 N. W. 51.

2 Neilson v. Russell, 76 N. J. L. 655, 71 A. 286, reversing 76 N. J. L. 27, 69 A. 476.

250 III. 584, 95 N. E. 973.

3 State v. Handlin (Ark. 1911), 139 S. W. 1112. In re Magnes, 32 Colo. 527, 77 P. 853. In re Macky, 45 Colo. 316, 102 P. 1075. National Safe Dep. Co. v. Sneed, McGhee v. State, 105 Iowa 9, 74 N. W. 695. Wieting v. Morrow (Iowa, 1911), 132 N. W. 193. Booth v. Comm, 130 Ky. 88, 113 S. W. 61. Leavell v. Arnold, 131 Ky. 426, 115 S. W. 232. Union Trust Co. v. Durfee, 125 Mich. 487, 84 N. W. 1101, 7 Detroit Leg. N. 597. State v. Bazille, 97 Minn. 11, 106 N. W. 93, 6 L. R. A. N. S. 732. State v. Henderson, 160 Mo. 190, 217, 60 S. W. 1093. Gelsthorpe v. Furnell, 20 Mont. 299, 51 P. 267, 39 L. R. A. 170. Eastwood v. Russell (N. J. 1911), 81 A. 108. In re Swift, 137 N. Y. 77, 88, 32 N. E. 1096, 18 L. R. A. 709, 64 Hun 639, 16 N. Y. Suppl. 193, 19 N. Y. Suppl. 292. In re Davis, 149 N. Y. 539, 547, 44 N. E. 185, affirming 91 Hun 53. In re Pell, 171 N. Y. 48, 56, 63 N. E. 789, 57 L. R. A. 540, 89 Am. St. Rep. 791, reversing 60 N. Y. App. Div. 286, 70 N. Y. Suppl. 196. In re Vanderbilt, 172 N. Y. 69, 73, 64 N. E. 782, modifying 68 N. Y. App. Div. 27, 74 N. Y. Suppl. 450. See In re McPherson, 104 N. Y. 306, 317, 10 N. E. 685, 58 Am. Rep. 502, where the court refuses to decide the question. In re Morris, 138 N. C. 259, 50 S. E. 682. State v. Ferris, 53 Ohio St. 314, 326, 41 N. E. 579, 30 L. R. A. 218. In re McKennan, 25 S. D. 369, 126 N. W. 611, 130 N. W. 33. Eyre v. Jacob, 14 Gratt. (Va.) 422, 430, 73 Am. Dec. 367. Schoolfield v. Lynchburg, 78 Va. 366, 372. In re Howard, 80 Vt. 489, 495, 68 A. 513. Black v. State, 113 Wis. 205, 217, 89 N. W. 522, 90 Am. St. Rep. 853. State v. Bullen, 143 Wis. 512, 518, 128 N. W. 109. Scholey v. Rew, 90 U. S. (23 Wall.) 331,349. See Stellwayen v. Durfee, 130 Mich. 166, 173, 89 N. W. 728.

It is not a tax upon the property or money bequeathed, but a diminution of the amount that otherwise would pass under the will, and hence what the legatee really receives is not taxed at all. It is that which is left after the tax has been

taken off. It is only imposed once and that is before the legacy has reached the legatee, and before it has become his property. In re Finnen, 195 Pa. St. 72, 46 A. 269 (the collateral inheritance tax of 1887). "It is a reduction by the state of a part of a deceased person's property which the state may take to meet its necessities and which, in certain cases, it may take in toto, as in the cases of escheated property." Per Wilkes, J., in State v. Alston, 94 Tenn. 674, 30 S. W. 750, 28 L. R. A. 178.

The exemption in La. Const. 1898 from the operation of the inheritance tax of property which had borne its just share of taxation arose from a misapprehension of the inheritance tax, which is not a tax proper, but a bonus or premium exacted by the sovereign on the transmission of an estate, the amount being measured by the value of the property. In its very nature it is a privilege or franchise tax and is not affected by the nature and character of the property transmitted. Succession of Kohn, 115 La. Ann. 71, 38 S. 898.

That the right to acquire property inter vivos is a natural right and the tax on it is a tax on property was suggested and not considered as the case pending was one of intestacy in Eastwood v. Russell (N. J. 1911), 81 A. 108.

It was claimed that because the court held in the Nunnemacher case, 129 Wis. 190, 108 N. W. 627, 9 L. R. A. N. S. 121, that the right to inherit a devised property was a natural right, therefore it was a property right; and hence an inheritance tax must logically be held to be a tax upon a property right and subject to the provision that it must be absolutely uniform. The court says that the conclusion does not follow; that taxes frequently are levied upon transactions or occupations which are matters of natural right; and that these matters are mere privilege taxes. Beals v. State, 139 Wis. 544, 556, 121 N. W. 347.

Succession of Kohn, 115 La. Ann. 71, 38 S. 898. Kingsbury v. Chapin, 196 Mass. 533, 537, 82 N. E. 700. State Street Trust Co. v. Stevens, 209 Mass. 373, 95 N. E. 851. Pullen v. Commissioners, 66 N. C. 361.

"In nearly all inheritance tax laws the statutes provide for the appraising of property to be inherited, but the object of such valuation is not to tax the property itself, it is to arrive at a measure of price by which the privilege of inheriting can be valued." Per Hunt, J., in Gelsthorpe v. Furnell, 20 Mont. 299, 51 P. 267, 39 L. R. A. 170.

While referring to the property devised or inherited it does so only to secure uniformity among the beneficiaries receiving the property, the object being to tax each in proportion to his or her interest received and for that privilege. State v. Henderson, 160 Mo. 190, 215, 60 S. W. 1093.

It is insisted that as the tax is a certain per cent of the value of the estate and the property pays it, it is therefore a tax on the property itself. But the court relying on Eyre v. Jacobs, 14 Gratt. 422, remarks that this is by no means a necessary logical conclusion, that "the intention of the legislature was plainly to tax the transmission of property by devise or descent to collateral kindred and to require that a party then taking the benefit of a civil right accrued to him under the law should pay a certain premium for its enjoyment; and as it was thought just and reasonable that the amount of the premium should bear a certain proportion to the value of the subject enjoyed it is fixed at a certain per centum upon the value of the whole estate transmitted." Booth v. Commonwealth, 130 Ky. 88, 113 S. W. 61. 6 State v. Ferris, 53 Ohio St. 314, 326, 41 N. E. 579, 30 L. R. A. 218, distinguishing Estate of Bittinger, 129 Pa. St. 344. As to lien, see post, s. 406 et seq.