I am unable to agree with the construction of the Montana inheritance tax law as announced in the opinion of the court herein, nor with the logic of the decision which reverses the order of the district court determining the tax. The importance of the issue impels me to give expression to the reasons for my dissent.
We know that a great and increasing part of the earnings and income of the people is being taken by the tax gatherers of the nation, the state, and the municipalities, for a continually enlarging field of public and quasi public purposes of varying degrees of necessity, importance and desirability. It is of high moment and consequence that, in a controversy between the sovereign demanding the tax and the citizen disputing its validity, or its amount, the law providing for the exaction be applied in accord with its provisions, and not extended by strained construction to include in favor of the demanding power cases not plainly set forth therein.
Montana has said that, "It is generally recognized everywhere that tax laws must always be strictly construed in favor of the taxpayer." Vennekolt v. Lutey, 96 Mont. 72, *Page 160 28 P.2d 452, 454; Shubat v. Glacier County, 93 Mont. 160, 18 P.2d 614, 615. And the court in the Shubat case further said, "Where a taxing statute is susceptible of two constructions and the legislative intent is in doubt, such doubt should be resolved in favor of the taxpayer."
Here, however, there appears to be no requirement of resort to rules of construction. The language of the statute is plain. A mere reading thereof sustains the district court in its determination of the tax.
The court's opinion herein quotes the instrument of transfer of stock made by Mrs. Kohrs in 1915, and the subsequent agreement of April 12, 1934.
The appellant contends that the agreement of April 12, 1934, executed after the statute of 1923 was enacted, now section 10400.1 et seq., Revised Codes of Montana 1935, which increases the rate of tax, is the taxable transfer. In its reply brief appellant said: "Had that trust agreement, Exhibit `A' remained intact with reference to the transfer of the corpus, the controversy in question would not have arisen." Exhibit "A" is the trust instrument and transfer of July 20, 1915. The court rejects appellant's contention that the instrument of April 20, 1934, governs. With this I agree and will hereinafter comment thereon a bit more in detail than is contained in the court's opinion. But first to the transfer of 1915, Exhibit "A."
The transfer by Mrs. Kohrs to the trustee bank in 1915 divested her of title to the stock. She retained no right in the stock and no right to revoke or modify the trust or the transfer. The transfer was complete. By it title in the stock became vested. The transfer, if "made in contemplation of the death of the grantor or bargainor, or intended to take effect in possession or enjoyment after such death," is subject to inheritance tax.
As construed in the Gelsthorpe case, and at all times followed, the event or act taxed by the inheritance tax law in force when the transfer in trust of corporate stock was made by Augusta Kohrs in 1915 was the same as in the present statute, section *Page 161 10400.1, Revised Codes of Montana, 1935, which was in force at the time of her death in 1945. The tax is not a property tax. State ex rel. Davis v. State Board of Equalization, 104 Mont. 52,64 P.2d 1057, 108 A.L.R. 1397. It is a tax upon the privilege of acquiring property by will or inheritance, or by a transfer inter vivos "made in contemplation of the death of the * * * donor, or intended to take effect in possession or enjoyment at or after such death." Sec. 10400.1, Rev. Codes 1935; State ex rel. Bankers' Trust Co. v. Walker, 70 Mont. 484, 226 P. 894. The tax has been variously termed a succession tax, transfer tax, privilege tax and the like. The name applied is not important. In the determination of the question here involved it is important and necessary to know upon what act, event or thing the tax is imposed. The answer to this must be found in the statute that declares and imposes the excise. It is not a question of the power of the state to impose the tax. Except for those few limitations and restrictions upon the taxing power contained in the state and federal Constitutions, the right of the state to tax its citizens, their activities and their property, is of extreme inclusion.
Except for the capitation or poll tax, based as it is upon society's protection of the individual as a person, unrelated to his dominion over property, and without reference to his employment, business, or other circumstances, taxes are directly or indirectly related to property. It is the confirmation of the rights of property in the individual, and the protection of such rights, that form the foundation upon which rests the state's power to tax property, its use, its transfer and its devolution.
As the kinds and classes of property are numerous, so are the forms of taxation to which property is subject. And as the uses to which property may be put are manifold, so are the forms and classes of excises that may be imposed thereon varied. As the demands of the people upon the society which they have set up for the protection of their persons and property, and for the general welfare, become greater, the states extend the exercise of their taxing power into hitherto unoccupied fields. So, the *Page 162 question here propounded is not one of legislative power. That such power is of wide comprehension is conceded. It is not what disposition of property may be taxed, but what disposition of property has been taxed by the law applicable to the transfer involved in this proceeding. The statute gives the answer. It declares that the "transfer of property" by deed or gift intended to take effect in possession or enjoyment at or after the death of the donor, shall be taxed. This is true of the statute in force in 1915 when the transfer here involved was made, and in 1945 when Mrs. Kohrs died.
The statute defines "transfer" as used in the inheritance tax law as follows: "The word `transfer' as used in this act shall be taken to include the passing of property or any interest therein, in possession or enjoyment, present or future, by inheritance, descent, devise, succession, bequest, grant, deed, bargain, sale, gift, or appointment in the manner herein prescribed to each individual or corporation." Section 10400.43, Rev. Codes of Montana, 1935.
The instrument under which Mrs. Kohrs transferred the stock of Conrad Kohrs Company to the Union Bank Trust Company in trust, constituted a transfer, as thus defined by the statute. Two kinds of transfer of property are taxable under both the former and present Montana statute. One is when property passes at the death of the owner by will or by the intestate laws of the state. This passing of ownership from the dead to the living is the transfer that was in its early conception the subject of taxation under the inheritance tax theory. The other is the transfer made by the living person to operate in lieu of transfer by will or intestate law. These inter vivos transfers are distinguished as those that are made "in contemplation of the death" of the one making the transfer, and those that are "intended to take effect in possession or enjoyment at or after such death." These inter vivos transfers are taxed because they are used as a substitute for or to avoid the passing of property by will or intestate law. In re Potter's Estate, 188 Cal. 55, 204 P. 826; In re Madison's Estate, 26 Cal. 2d 453, *Page 163 159 P.2d 630. The statute makes no distinction as to the time the tax is imposed upon either of the two kinds of inter vivos transfers. Indeed, the same transfer may be in contemplation of death of the grantor and intended to take effect in possession or enjoyment at or after such death. In each case the tax is imposed when the transfer is made, but in neither is collected until the death of the transferor, for then it is, as both old and new statutes provide, that the tax becomes due and payable. Section 7725, Rev. Codes 1907; sec. 10400.5, Rev. Codes 1935. That the tax is imposed at one time and collected at a later time is the ordinary course of property taxation in general and it is a rule well recognized in the imposition and collection of taxes under the inheritance tax statutes.
The statute declares that the tax is on the transfer. When is the tax imposed? Both the statute in force at the time of the transfer of the stock, section 7724, Revised Codes of 1907, and at the time of the death of the transferor, section 10400.1, Revised Codes of 1935, provide that the tax is imposed "when any such person" to whom transfer is made "becomes beneficially entitled, in possession or expectancy, to any property or the income thereof, by any such transfer." This language requires no construction.
The daughters of the settlor of the trust became beneficially entitled in expectancy to the stock when the transfer of the stock was irrevocably made to the bank in trust. The legal title to the stock then passed to the bank as trustee, and the future interest, the estate in expectancy, became vested in the beneficiaries. This future interest, this estate in expectancy, is a vested interest. Sec. 6690, Rev. Codes 1935; In re Stanford Estate, 126 Cal. 112, 54 P. 259, 58 P. 462, 465, 45 L.R.A. 788. The statute reads: "No future interest can be defeated or barred by any alienation or other act of the owner of the intermediate or precedent interest, nor by destruction of such precedent interest by forfeiture, surrender, merger, or otherwise, * * *" (Sec. 6718, Rev. Codes of Montana 1935.)
The gift to the daughters of the future interest in the stock *Page 164 was irrevocable and could not be alienated or defeated by any act of Augusta Kohrs. The tax was imposed upon the transfer when made for that was when the daughters became beneficially entitled, "in expectancy," to the stock.
Under a New York statute containing the same provision in the identical language, that state held that an estate "in expectancy" is one where the right to the possession is postponed to a future period, and it is "beneficial" when the grantee takes solely for his own benefit, and not as the mere holder of the title for the use of another. In re Seaman's Estate, 147 N.Y. 69,41 N.E. 401; In re Lansing's Estate, 182 N.Y. 238, 74 N.E. 882. And Justice Cardozo, when on the New York Court of Appeals, said, "The tax is a charge upon the creation of the right. It is not a charge upon fruition in enjoyment or possession." In re Schmidlapp's Estate, 236 N.Y. 278, 140 N.E. 697, 698.
The New York statute has been many times applied and construed in that state. It uniformly has been held by the courts of that state, and by the United States Supreme Court when such cases have been before that tribunal for review, that the tax upon the taxable transfers that are "made in contemplation of the death of the grantor, vendor, or donor, or intended to take effect in possession or enjoyment at or after such death," shall be at the rate fixed by the law in force when the transfer was made. This, under the provision of their statute, in the language of subdivision 4 of our section 10400.1, that "Such tax shall be imposed when any such person or corporation becomes beneficially entitled, in possession or expectancy, to any property or the income thereof, by any such transfer whether made before or after the passage of this act; * * *" A few among the many cases so holding are: In re Webber, 151 A.D. 539, 136 N.Y.S. 83; In re Harris' Estate, 135 Misc. 658, 240 N.Y.S. 706; Keeney v. Comptroller, 222 U.S. 525, 32 S. Ct. 105, 56 L. Ed. 299, 38 L.R.A., N.S. 1139, affirming Matter of Keeney's Estate, 194 N.Y. 281,87 N.E. 428; Matter of Craig's Estate, 97 A.D. 289,89 N.Y.S. 971, affirmed 181 N.Y. 551, *Page 165 74 N.E. 1116; Matter of Pell's Estate, 171 N.Y. 48, 63 N.E. 789, 57 L.R.A. 540, 89 Am. St. Rep. 791.
In re Hoffman's Estate, 143 N.Y. 327, 38 N.E. 311, it was said that transfer means the present passing of property without regard to whether the actual possession and enjoyment follow immediately or at some future time. This, of course, is just what the Montana statute provides.
California for years had a statute in the same language declaring and defining the taxable transfer. It has been uniformly held that the law in force at the time of the transfer is the law governing the taxability of the transfer. In re Estate of Brix, 181 Cal. 667, 186 P. 135; In re Estate of Potter,188 Cal. 55, 204 P. 826; In re Estate of Miller, 184 Cal. 674,195 P. 413, 16 A.L.R. 694; Riley v. Havens, 193 Cal. 432,225 P. 275; In re Murphy's Estate, 182 Cal. 740, 190 P. 46; Hunt v. Wicht, 174 Cal. 205, 162 P. 639, L.R.A. 1917c, 961.
It is held in California that the right of the state to the tax vests at the time of the taxable transfer and that the legislature cannot by subsequent Act reduce the rate of taxation thereon as to do so would be to make a gift of property of the state, to the extent of the reduction, contrary to the provision of the California Constitution which is the same as the provision of section 39, Article V of the Constitution of Montana. In re Estate of Potter, supra; in re Stanford's Estate, supra. Montana held the same in re Clark's Estate, 105 Mont. 401,74 P.2d 401, 114 A.L.R. 496.
Nor can a later statute be given such retroactive effect upon transfers vested prior to its passage as to increase the tax thereon. In re Pell's Estate, supra; In re Lyons' Estate,233 N.Y. 208, 135 N.E. 247; In re Estate of Felton, 176 Cal. 663,169 P. 392; In re Potter's Estate, supra; also see In re Child's Estate, 18 Cal. 2d 237, 115 P.2d 432, 136 A.L.R. 333; Coolidge v. Long, 282 U.S. 582, 51 S. Ct. 306, 75 L. Ed. 562; Riley v. Havens, supra.
In Chambers v. Gibb, 186 Cal. 196, 198 P. 1032, it was held that a transfer of community property by a husband to his wife, *Page 166 made in contemplation of death, was taxable under the inheritance tax law of that state in effect when the transfer was made, which allowed an exemption of $24,000, though the transfer did not take effect in possession and the tax was not payable until the death of the transferror, at which time a later Act was in effect allowing an exemption of half the property transferred, since the repealing clause of the prior law provided that the repeal should not affect any right which the state might have at the time the later Act took effect to claim a tax on any transfer of property under the provisions of the repealed Act.
And it is to be noted that the 1897 inheritance tax law in effect when the transfer in trust here involved was made, was expressly repealed in 1921 by section 10400, Revised Codes of Montana 1921. The repealer, however, provided that "such repeal shall not in any wise affect * * * any right which the state of Montana may have at the time of the taking effect of this act to claim a tax upon any property under the provisions of the act or acts hereby repealed for which no proceeding has been commenced, * * *" The 1921 statute was repealed by our present statute enacted in 1923, sections 10400.1 to 10400.51, inclusive, Revised Codes of 1935, but the repealer also provided that "such repeal shall not in any wise affect * * * any right which the state of Montana may have at the time of the taking effect of this act to claim a tax upon any property, or from any person, under the provisions of any of the sections or acts hereby repealed or under any prior laws repealed by such acts and which rights were reserved therein, for which no proceeding has been commenced to collect any tax arising thereunder, and where no proceeding has been commenced to collect any such tax the procedure to collect the same shall conform to the provisions hereof, * * *." Section 10400.47, Rev. Codes 1935.
Thus the right that the state has to the tax imposed upon the transfer of the Kohrs Company stock by sections 7724 et seq., Laws of 1907, in force when the transfer was made in 1915, has been preserved to it under the successive statutes and the repealers *Page 167 therein contained, the procedure for collecting the tax to follow the present statute.
It is thus from the statute, and the construction to like acts given, to be seen that the state in taxing those gifts, trusts and transfers that are used to take the place of testamentary disposition of property it has taxed the inter vivos transfer, whether the transfer be of a present or a future interest, an estate in possession or an estate in expectancy. While the taxing power of the state is no doubt of such wide comprehension as to permit it to impose a tax upon the transition of a vested future interest in property into a present interest therein, occurring at the death of the owner of the precedent interest, it has not done so, and it is not within judicial power to make a statute speak where its creator has left it silent.
I cannot extend this dissent so far as to analyze and distinguish all the cases cited in the court's opinion to sustain its construction of the statute. For the most part they are cases presenting the question whether the transfer involved was a taxable transfer, as one intended to take effect in possession or enjoyment at or after death of the donor, or otherwise clearly beside the point for decision in the case here.
I cannot refrain, however, from calling attention to the fact that the Massachusetts court in the very case cited by the court as aligning that state as a supporter of the court's position here, clearly recognized the question here presented, whether the law in effect at the time of the transfer, or the law at the time of death governed the rate of tax to be collected upon the transfer. The case is that of Worcester County National Bank v. Commissioner of Corporations Taxation, 275 Mass. 216,175 N.E. 726, 727, and the court said, "The law in force at the date of the death of decedent [1919] imposed a tax upon personal property of deceased residents of the Commonwealth which should `pass * * * by deed, grant or gift * * * made or intended to take effect in possession or enjoyment after his death * * *' The law in force at the time the trust indenture was executed contained the same provision. * * * Though changes were made from time *Page 168 to time in the statute imposing taxes on legacies and successions between the date of the execution of the trust indenture and the date of the death of the decedent, the tax rate applicable to the property in question was the same on both dates and our attention has not been called to a change in any other respect which would affect the amount of tax for which the petitioner would be liable."
The implication in this statement is plain. Furthermore the question in the case was whether any tax was owing on a transfer claimed to have been made for a consideration.
Despite the coinage and use by Justice Stone of a phrase of learned sound but little meaning, repeated by some courts and here, but contained not in law or statute, I believe that the statute of Montana imposes the tax upon the "transfer" of the property "or any interest therein, * * * present or future," as defined in the statute. The phrase used by the learned justice is "economic benefits," and "economic benefits and burdens of property," and the "shifting of the economic benefits." See Saltonstall v. Saltonstall, 276 U.S. 260, 48 S. Ct. 225, 227,72 L. Ed. 565, and cases citing same.
It is only necessary to say that the Montana legislature has not used the language, nor any language like it in our inheritance tax law. I do not think the court has constitutional power to insert it in the law. But even if used what does it mean? It seems that to be the recipient of a transfer of an estate of more than half a million dollars, even though it be the estate "in expectancy" that the statute names and describes as a "future interest" that cannot be destroyed by any act of the transferror thereof, is to enjoy some "economic benefit." I think the credit of the recipient of such a transfer would be benefited, and that the benefit might well be classed as an "economic" one. The resort to such far-fetched construction is hardly consistent with the rule that doubt as to the validity or scope of a tax should be resolved in favor of the taxpayer.
As to the Milliken case cited by the court, Montana said of it: "Subsequent to the decision of the Coolidge Case, from which *Page 169 we have quoted so liberally, the Supreme Court of the United States, in the case of Milliken v. United States, 283 U.S. 15,51 S. Ct. 324, 75 L. Ed. 809, used some language which might be construed as a recession from the opinion in the Coolidge Case, although the facts were different. But the court, we find, in the case of Binney v. Long, 299 U.S. 280, 57 S. Ct. 206, 81 L. Ed. 239, adhered to the doctrine of the Coolidge Case when the facts were the same." In re Clark's Estate, 105 Mont. 401, 74 P.2d 401,411, 114 A.L.R. 496.
In the case of the In re Schuh's Estate, 66 Mont. 50,212 P. 516, which the court considers as one presaging its present reading of the statute, Mary Schuh in 1917 transferred property to her children. On the same day the children executed a trust agreement with a bank whereby they delivered to the bank all the property transferred to them by their mother. The mother died in 1918, and one of her sons named as executor in her will filed his inventory of his mother's estate but did not include any part of the property she had described in her transfer to the children, and by them transferred in trust to the bank. The court held that the transfer by the mother to the children, and the trust agreement and transfer by the children to the bank, constituted but one transaction, and whether made "in contemplation of death" or not it was a transfer "intended to take effect in possession or enjoyment" at her death, and that as such a transfer it was taxable. A reading of the case discloses that it is more in support of this dissent than otherwise.
This is the first case in this court that presents the question, whether it is the inter vivos transfer that the statute says is the thing or act upon which the tax is imposed, or whether it is the later gaining possession thereof. To hold the latter requires reading into the statute what is not therein contained.
I concede that the legislature can make such coming into possession arising from the transfer of title and ownership, the taxable event. I say it has not done so.
The writer of the opinion of the court, Mr. Justice Metcalf, has suggested that in this dissent the conclusion of the court, *Page 170 with which I agree, that the so-called modification agreement of April 12, 1934, is not material in answering the question propounded by the appeal, be somewhat amplified. This by reason of the contention of appellant that the later agreement constitutes the taxable transfer, and of the respondents that by reason of failure to consent thereto of alleged contingent beneficiaries the trust transfer of 1915 was not revoked. The contentions are briefly, and so far as the result is concerned, adequately disposed of by Mr. Justice Metcalf in the opinion herein. But as suggested by him it is perhaps well to further elucidate. The contentions adverted to present for consideration the instrument of April 12, 1934, its nature, character and capacity, and its effect on the tax issue involved.
It is contended by the state board that the agreement of April 12, 1934, is a revocation of the trust created in 1915, or, if not, that it is a disclaimer or renunciation by Mrs. Boardman and Mrs. Bogart of the gifts made to them by the transfer of July 20, 1915. Respondents say it is not consented to by all the beneficiaries, and in any event is but a modification of the trust.
The trust transfer reserved no right of revocation. Consequently it could only be revoked or modified by compliance with section 7921, Revised Codes of Montana 1935, which provides that, "A trust cannot be revoked by the trustor after its acceptance, actual or presumed, by the trustee and beneficiaries, except by the consent of all the beneficiaries, unless the declaration of trust reserves a power of revocation to the trustor, and in that case the power must be strictly pursued."
There is little conflict in authority concerning the requirement that where the settlor of a trust has not reserved the right of revocation it may be revoked only with the consent of "all the beneficiaries." The language of the statute appears to include beneficiaries whose interests are contingent as well as those whose rights are vested.
In Schoelkopf v. Marine Trust Co., 267 N.Y. 358, 196 N.E. 288, it is held that any person who, under the trust instrument, has right, whether present or future, or vested or contingent, to *Page 171 income or principal of the trust fund, has the "beneficial interest" that requires his consent to the revocation of the trust. To the same point is Whittemore v. Equitable Trust Co.,250 N.Y. 298, 165 N.E. 454. Respondent contends all who have contingent beneficial interests have not consented. But here it is not required to determine the rule nor to apply it. The court's opinion properly holds that the agreement of April 12, 1934, did not constitute a revocation of the trust. To revoke a gift is to take the thing given back into the ownership of the giver. Where the power to take back the gift to the giver was not reserved when the gift was made it can only be taken back by consent of donor and donee and all parties having an interest vested or contingent in the gift. Such is the effect of the statute, section 7921, supra. Here, if it be assumed that Mrs. Boardman and Mrs. Bogart constituted all the cestuis, all the persons in interest (other than the trustee), in the Kohrs Company stock, the gift was not taken back into the ownership of the donor. The legal title and ownership was vested in the trustee bank, the equitable title and ownership was vested in the cestuis. The effect of the agreement of April 12, 1934, was not to divest the equitable title of Mrs. Boardman and Mrs. Bogart in the stock, and vest it in Augusta Kohrs. Its effect, if it had any, was to transfer the equitable title of Mrs. Boardman and Mrs. Bogart in the stock to the grandchildren of Mrs. Kohrs, the three children of Mrs. Bogart. That transfer could be made only by Mrs. Boardman and Mrs. Bogart as such title was vested in them.
It is urged that, if not a revocation, the agreement of April 12, 1934, constituted a disclaimer or renunciation by Mrs. Boardman and Mrs. Bogart of the gift of stock to them by the transfer of July 20, 1915. The rule applicable to this is well settled. It is stated by Bogert on Trusts and Trustees as follows: After the beneficiary of a trust has received and accepted the equitable estate, "he cannot thereafter disclaim. If he wishes to be freed of his equitable property, he must find some one willing to take a transfer of it for a consideration or by way of gift. And a cestui must disclaim or accept the trust as a whole. He cannot *Page 172 accept as to a part of the property and reject as to the remainder." Bogart on Trusts and Trustees, sec. 173.
Applying the rule, we find that Mrs. Boardman and Mrs. Bogart could not disclaim. In the language of the statute there had been an "acceptance, actual or presumed," by them of the trust. Their participation in the agreement of April 12, 1934, itself evidences their acceptance, aside from the presumption thereof. (Sec. 10606, Rev. Codes, 1935.) But even where the right to disclaim or renounce the gift may be exercised the disclaimer or renunciation must be as to the whole gift. The cestui may not accept part and reject the remainder. Mrs. Boardman and Mrs. Bogart were given by the gift of 1915 a future interest in the Kohrs Company stock, an estate in expectancy therein, and also net receipts and profits arising from the stock upon the contingencies in the instrument set forth. By agreement of April 12, 1934, they purport to transfer to the children of Mrs. Bogart the stock but retain for the term of their lives the income, profits and dividends therefrom. The agreement constitutes neither a revocation of the trust nor a disclaimer or renunciation of the trust and gift therein made to them. It follows that said writings signed by Augusta Kohrs, Anna Boardman and Katherine K. Bogart, two of the beneficiaries designated in the trust transfer and contract, and by the trustee bank, did not constitute a transfer or gift of the stock by Augusta Kohrs to any one. She then did not own the stock. It was not hers to transfer or give. She had made the gift and transfer nearly nineteen years before. Upon that transfer a tax liability of the beneficiaries arose in favor of the state of Montana. If the modification agreement was a new transfer within the contemplation of the inheritance tax statute it was not a transfer from Augusta Kohrs to her grand-children, but from the daughters to said children. The daughters at the time of the modification agreement owned the stock. Their ownership thereof was a vested right. Their title could only be divested by their act. If it was divested it was by their act in signing the agreement. *Page 173 If divested, their act in executing the agreement was the effective instrument of transfer.
That this is the effect of the modification agreement of April 12, 1934 (assuming the modification to be valid), is certain. It was held in Cerf v. Commissioner of Int. Revenue, 3 Cir.,141 F.2d 564, that where the consent of a beneficiary is necessary to the amendment of a trust by the settlor, and the beneficiary consents to the amendment which reduces her interest and increases that of the settlor, there is a gift from the beneficiary to the settlor. The case was where a wife beneficiary consented to release a part of her beneficial interest in an irrevocable trust to her husband, the settlor of the trust. It was held that this constituted a transfer from the beneficiary to the husband and was taxable as a gift as of the date of the amendment of the trust.
If the agreement of April 12, 1934, constituted a transfer, it was from Mrs. Boardman and Mrs. Bogart to Mrs. Bogart's children. If that was taxable transfer it was not before the court for determination in the making of the order from which this appeal was taken.
The matter before the court in this case was the determination of the state inheritance tax due and payable in the matter of the estate of Augusta Kohrs, deceased. She left estate disposed of by her will, and the transfer by such will is taxable. She also in her lifetime transferred certain property in trust. It is conceded that such inter vivos transfer is taxable. This transfer was made July 20, 1915, and the tax was imposed on the ones who then became beneficially entitled in expectancy to the property transferred. The tax on both classes of inter vivos transfers, by provision of the statutes, is "due and payable at the time of the death of decedent." These transfers and the tax due and payable were the matters before the court. To whom distribution of the estate should be made was not before the court.
In view of the court's appraisal of the 1934 agreement and of the fuller analysis of it here given it is not necessary for the purpose of decision herein to consider the question whether the *Page 174 trust of July 20, 1915, which created in addition to the vested interests therein set forth certain contingent interests in grandchildren or the trustor, and probably in heirs of Anna Boardman, could be revoked, altered or amended, without the consent of all the beneficiaries, including such contingent beneficiaries.
Because the statute plainly reads that the tax is imposed "When any such person or corporation becomes beneficially entitled," [either] "in possession or expectancy, to any property * * * by any such transfer," I am of the opinion that the date the tax here was imposed was July 20, 1915, and that the rate than fixed by law upon the transfer is the rate of tax to be collected by reason thereof, and that the district court read the law aright and that its order should be affirmed.