alty, forfeiture, or liability incurred thereunder, unless the repealing act shall expressly so provide."7

47 Hertz v. Woodman, 218 U. S. 205, 54 L. Ed. 1001, 30 Sup. Ct. Rep. 621. Other federal cases bearing on this question are Eidman v. Pilghman, 203 U. S. 580, 51 L. Ed. 326, 27 Sup. Ct. Rep. 779, affirming 136 Fed. 141, 69 C. C. A. 139; McCoach v. Philadelphia Trust etc. Co., 205 U. S. 539, 27 Sup. Ct. Rep. 793, 51 L. Ed. 921, affirming 142 Fed. 120, 73 C. C. A. 610; United States v. Marion Trust Co., 205 U. S. 539, 51 L. Ed. 1191, 27 Sup. Ct. Rep. 794, affirming 143 Fed. 301, 74 C. C. A. 439; McCoach v. Bamberger, 161 Fed. 90, 88 C. C. A. 254; Title Guaranty & Trust Co. v. Ward, 184 Fed. 447, affirming 164 Fed. 459.

CHAPTER IV.

PROPERTY AND SUCCESSIONS SUBJECT TO TAX.

§ 50. Property Liable to Tax, in General.

§ 51. Transfers Subject to Tax, in General.

Increase or Decrease of Estate After Death.
Real or Personal Property.

§ 52.

§ 53.

§ 71. § 72.

Bequest in Discharge of Debt or Obligation.
Advancements.

§ 50. Property Liable to Tax, in General.-Save for the exemptions, which will be considered in a subsequent chapter,1 inheritance tax statutes are usually comprehensive in their scope and made to include all property within the jurisdiction of the taxing power.2

1 See the chapter on "Exemptions from Taxation," post, secs. 145158.

2 Morrow v. Durant, 140 Iowa, 437, 17 Ann. Cas. 850, 23 L. R. A., N. S., 474, 118 N. W. 781; Hooper v. Shaw, 176 Mass. 190, 57 N. E. 361; Howe v. Howe, 179 Mass. 546, 55 L. R. A. 626, 61 N. E. 225; Hinds v. Wilcox, 22 Mont. 4, 55 Pac. 355; Neilson v. Russell, 76 N. J. L. 27, 69 Atl. 476; Estate of Eaton, 55 Misc. Rep. 472, 106 N. Y. Supp. 682; Matter of Edson, 38 App. Div. 19, 56 N. Y. Supp. 409; Plummer v. Coler, 178 U. S. 115, 44 L. Ed. 998, 20 Sup. Ct. Rep. 829.

"The statute refers to all property transferred by will, not the kind, nor what it is for; but the passing of the title by the will": Estate of Eatou, 55 Misc. Rep. 472, 106 N. Y. Supp. 682.

Thus the collateral inheritance tax of Pennsylvania applies to "all estates, real, personal and mixed, of every kind whatsoever." And the Massachusetts statute includes "all property within the jurisdiction of the commonwealth, corporeal and incorporeal, and any interest therein, whether belonging to the inhabitants of the commonwealth or not." This language indicates an intention on the part of the legislature to tax all property that it has the power to tax; the statute is as broad as the jurisdiction of the state.* The California statute declares "a tax shall be and is hereby imposed upon the transfer of any property, real, personal or mixed, or of any interest therein or income therefrom, in trust or otherwise, to persons, institutions, or corporations, not hereinafter exempted." Of the Maryland statute it has been said that "ample provision is made for every possible contingency that may arise, whether the decedent is a resident of this state or not, provided the property is located here, if he is a nonresident, or is actually or constructively here if he is a resident. No estate can escape administration if the law is enforced, and when the property passes into the hands of the executor his obligation to pay the tax is fixed, and his bond at once becomes liable therefor.'' 5a

Under such statutes the inheritance tax is measured by the property within the power of the state to tax, and not by the property which the state policy has selected for purposes of general taxation. Property not taxable as such may constitutionally be considered in fixing the amount of an inheritance tax; the fact

8 Estate of Lea, 194 Pa. 524, 45 Atl. 337.

Kinney v. Stevens, 207 Mass. 368, Ann. Cas. 1912A, 902, 35 L. R. A., N. S., 784, 93 N. E. 586. See, too, Greves v. Shaw, 173 Mass. 205, 53 N. E. 272.

5 Cal. Stats. 1911, p. 713.

5a Fisher v. State, 106 Md. 104, 66 Atl. 661.

• Estate of Stanton, 142 Mich. 491, 105 N. W. 1122.

that property is exempt from general taxation does not prevent the imposition of an inheritance tax on the transfer thereof, for such tax is on the succession, not on the property."

"The continuous tendency of the courts," to quote from Justice Hatch, "has been to embrace within the transfer tax act, directly or indirectly, all property of every species found herein on the death of the decedent." Referring to the New York statute, Justice Glass, in an opinion delivered in 1901, makes this observation: "The present laws relating to taxable transfers are a compilation and revision of fifteen years of legislation upon the subject, beginning with the collateral inheritance tax act of 1885. Its development has been, to a great extent, in the form of amendments seeking to enlarge the field of taxation, and to break down the barriers which separated the exempt from the nonexempt. Judicial decisions tending to limit the scope of the law have been closely followed by new legislation abolishing the exemptions declared by the courts to exist. The constant effort seems to have been to bring more persons and more property within the operation of the law."

One cannot contemplate the course of events in New York without being impressed with the truth of these observations. And while that state has been more progressive than some others in extending the wholesome principle of inheritance taxation, yet the states generally show a commendable tendency in that direction. New York, though perhaps more conspicuous, does not stand alone in this respect.

Kingsbury v. Chapin, 196 Mass. 533, 13 Ann. Cas. 738, 82 N. E. 700; Estate of Knoedler, 140 N. Y. 377, 35 N. E. 601; Orr v. Gilman, 183 U. S. 278, 46 L. Ed. 196, 22 Sup. Ct. Rep. 213.

• Estate of Daly, 100 App. Div. 373, 91 N. Y. Supp. 858.

• Estate of Crouse, 34 Misc. Rep. 670, 70 N. Y. Supp. 731.

§ 51. Transfers Subject to Tax, in General.-Inheritance tax statutes are also comprehensive in embracing all transfers occasioned by or referred to the death of the transferrer. Not only are those transfers by will or by the intestate laws included, but also those made in contemplation of the death of the donor or grantor, or intended to take effect in enjoyment after his death. And transfers in contemplation of death are not restricted to gifts technically causa mortis; nor are transfers by will confined to such testamentary gifts as are merely gratuitous, but embrace all gifts by will, whatever the motive may be, whether to pay a debt, discharge some obligation, legal or moral, or to benefit a relative or person for whom the testator entertained an affection.10

If a will gives the testator's estate to his widow, on condition that she pay certain legacies to his collateral

10 Matter of Gould, 156 N. Y. 423, 51 N. E. 287; Estate of Stebbins, 52 Misc. Rep. 438, 103 N. Y. Supp. 563; Estate of Price, 62 Misc. Rep. 149, 116 N. Y. Supp. 283.

Where a man devised property to his mother, and she predeceased him, leaving as heirs a brother and sister of the testator, it was decided that the devised property passed directly from the testator to his brother and sister, and hence was subject to the collateral inheritance tax: Estate of Hulett, 121 Iowa, 423, 96 N. W. 952.

A trustee who, at the time of the war revenue act of 1898, held personalty under a testamentary trust, the property to be distributed among the survivors at a future date of a class of legatees designated by the testator, is not a "person possessed" of the property, so that it will be taxable when it passes from him to the distributees: McLain v. Pennsylvania Co., 108 Fed. 618, 47 C. C. A. 529.

Where personal property is held in joint tenancy, the share of one tenant which passes to the others on his death is subject to the inheritance tax: United States v. Robertson, 183 Fed. 711.

A devise of property by a wife to her husband has been held subject to the succession tax, notwithstanding it was bought and paid for by him, and deeded to her, on the understanding that she should will it to him: Ransom v. United States, Fed. Cas. No. 11,574.

A statute that imposes a tax on "property of any decedent which passes to any person other than" specified relatives, embraces property willed to a corporation: Miller v. Commonwealth, 27 Gratt. (Va.) 110.