I am of the opinion that the judgment of the trial court should be sustained, briefly for the following reasons.
The $88,371.35 is excess over exemptions. The question therefore is how should this excess be taxed under the statutes. The first $25,000, is taxable at two per cent. There is no disagreement thus far. Where the estate exceeds $25,000, the rate of tax upon such excess shall be as follows: "a. Upon such excess up to $50,000, four per cent thereof." To make up the $50,000, under the majority opinion, the first $25,000 forms a part of the $50,000 "excess." This, to my mind, is incorrect. The $25,000 is out of the picture and should not be considered further for any purpose. It is the amount in excess of $25,000, that is subject to the four per cent tax, up to an amount of $50,000. Any amount of excess over $50,000 up to $100,000, is taxable at six per cent; and upon the excess over $100,000, in any amount, up to $200,000, at eight per cent.
Attention is called in the majority opinion to the present New York inheritance tax law, as amended, being as follows: "one per centum on any amount up to and including the sum of twenty-five thousand dollars." Our statute provides for two per cent tax on the first twenty-five thousand dollars. The New York law provides "Two per centum on the next seventy-five thousand dollars or any part thereof." Our law provides "upon such excess up to $50,000, four per cent thereof," that is, excess over and above $25,000. The New York law provides "Three per *Page 801 centum on the next one hundred thousand dollars or any part thereof." Our statute provides "upon such excess, over $50,000 and up to $100,000, six per cent thereof." The New York law provides for one per cent on the first $25,000, and on the next $75,000, six per cent. The first $25,000, is not taken into consideration for any purpose in the tax imposed on the $75,000. No further attention should be paid under our statute to the $25,000, after a tax of two per cent has been imposed against it. Then, any amount over and above the $25,000 or any part thereof up to $50,000, is subject to a tax of four per cent, and so on.
The New York law is helpful in an effort to ascertain the intention of the legislature. Little if any help is afforded from the decisions of foreign states due to the difference in the language of their respective statutes. Clearly there is a doubt as to the construction which should be placed upon the statute, which being true, the doubt should be resolved in favor of the tax payer. While it might be conceded that a departmental construction is entitled to weight and consideration, it should not be controlling when in violation of a statute.
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