spondent the equal protection of the law; it applies the same rule to him as to all other persons in the same situation, and such cases as James v. American Surety Company " have no bearing. We cannot regard the statute as unconstitutional by reason of this change. Nor is it unconstitutional because it applied only to cases in which a succession tax remained unpaid."' 32

§ 40. Law Governing Powers of Appointment.The application of inheritance taxation to powers of appointment is attended with no little difficulty in the matter of determining what law, in point of time, shall control. The theory has prevailed in a number of jurisdictions that the source of the title is the instrument creating the power, into which the names of the appointees must be read, and their right of succession vests, not at the execution of the power, but at the time when the instrument which created it went into effect. Hence if a will creating a power of appointment became effective through the death of the testator prior to the enactment of a statute imposing inheritance taxes, bequests made in the exercise of the power after the enactment of such statute are not taxable. The donor of the power of appointment, rather than the donee, is regarded as the decedent whose estate is subject to taxation.33

The legislature of New York, evidently not satisfied with this interpretation, has amended the statute of that state so as to make it clear that the act constituting the transfer or succession is, for purposes of

81 James v. American Surety Co., 133 Ky. 313, 117 S. W. 406. 82 Attorney General v. Stone, 209 Mass. 186, 95 N. E. 395.

33 Emmons v. Shaw, 171 Mass. 410, 50 N. E. 1033; Estate of Stewart, 131 N. Y. 274, 14 L. R. A. 836, 30 N. E. 184; Will of Harbeck, 161 N. Y. 211, 55 N. E. 850; Commonwealth v. Duffield, 12 Pa. 277; Commonwealth v. Williams, 13 Pa. 29.

inheritance taxation, the execution of the power of appointment. This seems the more reasonable view, for whatever may be the technical source of the title of the donee under the power, it is undeniable that in reality and in substance it is the execution of the power that gives him the property. Under this theory of the law it is immaterial that there was no statute imposing an inheritance tax in force at the time when the original disposition of the property was made and the power created; it is the law in existence at the time when the power is executed that determines the liability of the donee under the power to pay a tax.

Therefore, if a testator devises property in trust for a life then in being, and provides that at the termination of that life it shall vest in the surviving children of that person and such of the issue of his deceased children as he may designate and appoint by his will, the property so passing by such appointment is subject to the inheritance tax, although at the time of the making of the original will there was no such tax as against the descendants of the testator." And an inheritance tax is properly assessed upon the exercise, by last will and testament, of a power of appointment executed before the passage of any statute imposing a tax on the right of succession to the property of decedents.35

In Massachusetts, and other states also, the statutes now provide that, in case of a power of appointment, the inheritance taxation shall be in the same manner as though the property belonged absolutely to the donee of the power, and had by him been bequeathed or devised by will.36 Formerly, however, the rule was

34 Matter of Dows, 167 N. Y. 227, 88 Am. St. Rep. 508, 52 L. R. A. 433, 60 N. E. 439.

35 Estate of Delano, 176 N. Y. 486, 64 L. R. A. 279, 68 N. E. 871. 36 Minot v. Stevens, 207 Mass. 588, 33 L. R. A., N. S., 236, 93 N. E.

different in Massachusetts, the donor of the power, rather than the donee, being regarded as the decedent whose estate was taxable." And this former rule appears to have been approved in Kentucky."

This question will be further considered in the chapter on "Powers of Appointment and Their Exercise." "

§ 41. Amendatory Act. Since inheritance taxation is governed by the statute in force at the time of the death of the decedent, amendatory acts adopted after the death have no operation on pending administration, and no retrospective effect, unless the legislature clearly so intended, but the rights of the parties are determined by the statute as it stood at the date of the death." Hence where gifts to charitable institutions are subject to taxation at the time of the testator's death, they are not relieved from the burden by a subsequent amendment to the statute exempting

37 Emmons v. Shaw, 171 Mass. 410, 50 N. E. 1033.

38 Winn v. Schenck, 33 Ky. Law Rep. 615, 110 S. W. 827, where the Kentucky court said: "In the case of Emmons v. Shaw, 171 Mass. 410, 50 N. E. 1033, the supreme court of Massachusetts passed upon a question somewhat similar. There one Thomas B. Wales had devised certain property to his son, George W. Wales, for life, subject to his disposition by will, but, in the event that he died intestate, with further limitations as to the fee. The son disposed of the property by will under the power, and, an inheritance law having been adopted after the death of his father but before his death, an effort was made to collect the tax from his property. The court declined to enforce it, and, in so doing, said: 'What is done under a power of appointment is to be referred to the instrument by which the power is created, and operates as a disposition of the estate of the donor.'"

39 See post, secs. 78-86.

40 State v. Switzler, 143 Mo. 287, 65 Am. St. Rep. 653, 40 L. R. A. 280, 45 S. W. 245; Carter v. Whitcomb, 74 N. H. 482, 17 L. R. A., N. S., 733, 69 Atl. 779; Estate of Graves, 34 Misc. Rep. 677, 70 N. Y. Supp. 727, order reversed in 66 App. Div. 267, 72 N. Y. Supp. 815; Estate of Brooks, 6 Dem. Sur. (N. Y.) 165.

such gifts, notwithstanding the act takes effect before the will is probated."1

§ 42. Curative Act.-Where an inheritance tax law is ineffectual at the time of the death of a testator, because in certain particulars unconstitutional, the legislature may, before the distribution of the estate, cure the defects in the original statute by an amendatory act, and subject, to taxation the property still under the control of the probate court."

§ 43. Repeal and Re-enactment of Statute.-Repeals of inheritance tax laws by implication, like repeals of other revenue acts, are not favored. And where there is an express repeal of a statute, and at

41 Provident Hospital & Training School Assn. v. People, 198 П. 495, 64 N. E. 1031; Connell v. Crosby, 210 Ill. 380, 71 N. E. 350; Sherrell v. Christ Church, 121 N. Y. 701, 25 N. E. 50.

42 Montgomery v. Gilbertson, 134 Iowa, 291, 10 L. R. A., N. S., 986, 111 N. W. 964.

43 Zickler v. Union Bank & Trust Co., 104 Tenn. 277, 57 S. W. 341. The effect of the repeal of certain provisions of the New York statutes will be found considered in Matter of Prime, 136 N. Y. 347, 18 L. R. A. 713, 32 N. E. 1091, affirming 64 Hun, 50, 18 N. Y. Supp. 603; Estate of Jones, 54 Misc. Rep. 202, 105 N. Y. Supp. 932; Matter of Arnett, 49 Hun, 599, 2 N. Y. Supp. 428; Estate of Moore, 90 Hun, 162, 35 N. Y. Supp. 782; and the repeal of the Virginia statute in Eyre v. Jacob, 14 Gratt. (Va.) 422, 73 Am. Dec. 367; Fox's Admrs. v. Commonwealth, 16 Gratt. (Va.) 1. The Ohio statute repealing the inheritance tax and excepting from the repeal estates wherein the inventory had been filed at the date of the passage of the act, was not affected by section 79 of the Revised Statutes of 1906, providing that a repeal shall not affect pending actions or proceedings, and the right to collect such tax was terminated when the act took effect: Friend v. Levy, 76 Ohio St. 26, 80 N. E. 1036. Where no succession tax provided for by the act of Congress, June 13, 1898, was due or a lien on property when the act was repealed, the tax to which the estate would otherwise have been subject was not "imposed" at the date of the repeal within the saving clause of the repealing act, providing that taxes previously imposed should not be affected by the repeal: Tilghman v. Eidman, 131 Fed. 651. Section 20 of the collateral inheritance tax law of California, giving the county treasurer a commission on all sums collected thereunder in addition to his salary,

the same time a re-enactment of a portion of its provisions, the re-enactment neutralizes the repeal, in so far as the old law is continued in force, and the part of the old law re-enacted operates without interruption." The right of the state to a tax becomes vested immediately on the death of the decedent, and thereafter it is not, at least unless such is the clearly expressed intent of the legislature, devested or affected by the repeal of the statute; " and the estate cannot be distributed to the heirs without the tax being paid."

45

§ 44. Repeal of United States Statute.-The inheritance tax imposed by Congress in 1898, although not "due and payable" under section 30 thereof, as amended in 1901, until one year after the death of the testator, must be deemed to have become an obligation immediately upon the passing by death of a vested right to the present possession or enjoyment of a legacy or distributive share, so as to be within the saving clause of the repealing act of 1902, preserving all taxes "imposed" prior to the taking effect of that act, although the testator's death was less than one year prior to such date, in view of the statute of 1901, providing that the repeal of any statute shall not have the effect to release or extinguish any pen

though not entirely repealed, has been so modified by the county government acts of 1893 and 1897 that the commissions cannot be received by him individually to his own use, but must be paid into the county treasury: San Diego County v. Schwartz, 145 Cal. 49, 78 Pac. 231.

44 Estate of Martin, 153 Cal. 225, 94 Pac. 1053.

45 Trippett v. State, 149 Cal. 521, 8 L. R. A., N. S., 1210, 86 Pac. 1084; Estate of Martin, 153 Cal. 225, 94 Pac. 1053; Arnaud's Heirs v. His Executor, 3 La. 336; Succession of Pritchard, 118 La. 883, 43 South. 537.

46 Estate of Lander, 6 Cal. App. 744, 93 Pac. 202.