Argued December 15, 1932; reversed January 31, 1933 ON THE MERITS (18 P.2d 591) Department 1. REVERSED. REHEARING GRANTED AND JUDGMENT AFFIRMED. This is an appeal from an order of the circuit court which sustained the objection of the State Treasurer to the final account of Florence Staiger, executrix of the estate of Hannah Blagen, because her final account segregated as exempt from taxation under our inheritance tax law property which Hannah Blagen had received from the estate of N.J. Blagen, who died October 16, 1929. An inheritance tax was paid on that estate July 18, 1930. July 15, 1930, the estate of N.J. Blagen was closed, and, by order of the circuit court, all of the property was then delivered *Page 73 to the widow, Hannah Blagen. November 21, 1930, Hannah Blagen died, and shortly thereafter her will was admitted to probate. The assets of her estate were substantially the same property which had constituted the N.J. Blagen estate. The final account of Florence Staiger deducted from the total value of the estate the value of the property which Hannah Blagen had received from the estate of N.J. Blagen on the ground that section 10-604, Oregon Code 1930, authorized the deduction. The State Treasurer objected to this report, contending that, since the two deaths had not occurred within one year, the above section of our laws did not warrant the exemption. This objection was sustained by the circuit court, and on July 31, 1931, that court entered an order holding the estate subject to an inheritance tax of $14,861.67, which the executrix paid July 18, 1931. August 29, 1931, the executrix filed notice of appeal from the aforementioned order, and thereupon the State Treasurer moved to dismiss the appeal on the ground that payment precluded an appeal. The motion was denied by this court. This motion is argued again in respondent's brief, and we have again considered the matter but remain satisfied with our previous decision.
Section 10-604, Oregon Code 1930, which is a part of our laws imposing a tax upon the right of inheritance, provides:
"There shall be allowed as a deduction from the value of the property subject to the taxes imposed by section 10-603, Oregon Code, an amount equal to the value of any property received by the decedent within one year prior to his death by inheritance, devise or bequest, where such property can be identified as having been so received, and where the tax on such property shall within one year have been imposed and accrued in this state under sections 10-603 and 10-606, Oregon Code, and the tax subsequently paid. * * *" *Page 74
It will be observed that the statute exempts property "received by the decedent within one year prior to his death by inheritance, devise or bequest". The statute adds that the property exempt is such as "can be identified as having been so received, and where the tax on such property shall within one year have been imposed and accrued in this state". Respondent, after directing attention to the facts that an inheritance tax is a tax on the right to receive as distinguished from a tax upon the property itself, and that the tax accrues upon the day of the death of the testator (§ 10-606, Oregon Code 1930), employs these two facts as the premise for a contention that the two deaths must occur within one year of each other before the right to exemption is established. It will be observed, however, that this construction assigns no effect whatever to the words "property received by the decedent within one year prior to his death by inheritance, devise or bequest" yet we believe that the words just quoted are among the most important of the act. The words "where the tax on such property shall within one year have been imposed and accrued" do not of necessity demand that the second death must have occurred within one year of the accrual of the tax. With equal reason it is permissible to infer that they require that the property must have been received by the second decedent within one year of the accrual of the tax. The executrix was entitled to possession of the real and personal property of the estate until some other disposition had been made of it by order of the court: Section 11-309, Oregon Code 1930; Re Estateof McDermid, 109 Or. 633 (222 P. 295); Mahon v. Harney CountyNational Bank, 104 Or. 323 (206 P. 224); and, hence, Hannah Blagen did not receive the property which constituted the assets of her *Page 75 husband's estate until the order of July 15, 1930. She died November 21, 1930. Hence, receipt of the property by Hannah Blagen, in so far as it means the right to enjoy it, and her death occurred within one year of each other. If the legislature had intended that the two deaths must occur within one year of each other in order to entitle the estate of the second decedent to exemption it could have so stated and would have avoided the language of section 10-604. In that section the legislature declared that the exemption arises whenever the property is "received by the decedent within one year prior to his death by inheritance, devise or bequest". Such being the rule, we are of the opinion that the objections of the State Treasurer to the final account of Florence Staiger, executrix, should have been overruled.
The order of the circuit court is reversed.
RAND, C.J., BEAN and KELLY, JJ., concur.