(dissenting) — The majority holds that because the decedent's promise to make a will was supported by adequate consideration the testamentary transfer is not subject to inheritance tax. In so holding, the majority misconstrues both our case law on the subject and the applicable statutes. Therefore, I dissent.
Although there is some division of authority among the states as to whether a transfer by will, executed pursuant to a contract to make a will, is subject to inheritance tax, this question has been settled for more than 50 years in Washington. RCW 83.08.0104 imposes an inheritance tax on all estates subject to RCW Title 83 at rates set forth in RCW *81683.08. The property subject to taxation is set forth in RCW 83.04.010,5 which in pertinent part provides:
All property within the jurisdiction of this state, and any interest therein, whether belonging to a person domiciled in this state or not, and whether tangible or intangible, which shall pass
(1) by will or by the statutes of inheritance of this or any other state . . .
(4) . . . shall, for the use of the state, be subject to a tax as provided for in chapter 83.08 RCW measured by the full value of the entire property after deduction of the amounts allowable under RCW 83.04.013.
(Italics mine.)
RCW 83.04.010 is very clear. Property which passes by will is subject to the tax. Mrs. McLeod left the Millers her house and certain furnishings in her last will and testament. Under the terms of RCW 83.04.010 this property is subject to inheritance tax.
The fact that Mrs. McLeod executed the will pursuant to her contract with the Millers does not shield these assets from taxation. This court in In re Estate of Gaudette, 165 Wash. 412, 5 P.2d 503 (1931) ruled that a transfer pursuant to a contract to make a will is subject to inheritance tax. This is true even though the contract is supported by valuable consideration and the bequest is not gratuitous.
Whether the property passes by will or under a contract, makes no difference. The determinative factor is whether the transfer of the property is to take effect in possession or enjoyment after the death of the transferor.
"It can make no difference that there was a valid consideration for the contract to transfer the property by will. The imposition of the tax is not limited to property passing gratuitously by will, but extends to 'all property' so passing.
In re Estate of Gaudette, at 414-16.
*817The great majority of courts which have considered statutes nearly identical to Washington's inheritance tax scheme have reached the same result. They have held that a testamentary transfer, otherwise subject to inheritance tax, will not be excluded from the decedent's estate even if made pursuant to a contract supported by full consideration. See, e.g., Slyder v. District of Columbia, 187 F.2d 217 (D.C. Cir. 1951); State v. Mollier, 96 Kan. 514, 152 P. 771 (1915); Clarke v. Treasurer & Receiver Gen., 226 Mass. 301, 115 N.E. 416 (1917); State ex rel. Marsh v. Probate Court, 168 Minn. 508, 210 N.W. 389 (1926); Carter v. Craig, 77 N.H. 200, 90 A. 598 (1914); In re Estate of Gould, 156 N.Y. 423, 51 N.E. 287 (1898); Sheppard v. Desmond, 169 S.W.2d 788 (Tex. Civ. App. 1943). See also Note, Taxability of Testamentary Transfer Made for Adequate Consideration, 18 Hastings L.J. 440 (1967); Note, State Inheritance Taxation of Nongratuitous Transfers, 43 N.Y.U. L. Rev. 744 (1968).
In rejecting Gaudette and the rule so clearly stated in RCW 83.04.010, the majority relies on the deductions contained in RCW 83.04.013 and the decisions of In re Estate of Krueger, 11 Wn.2d 329, 119 P.2d 312 (1941) and In re Estate of Birkeland, 56 Wn.2d 441, 353 P.2d 667 (1960). This reliance is clearly unwarranted.
RCW 83.04.013 provides in part:
The following shall be allowed as deductions from the gross value of the property passing:
(1) All debts owing by decedent at the date of death: Provided, That debts founded upon a promise or agreement shall be allowable only to the extent that they were contracted, bona fide, and for full and adequate consideration in money or money's worth;
A contract to make a bequest is simply not a debt owing by the decedent at the date of death. See Kelly v. Glaser, 112 N.J. Super. 419, 271 A.2d 602 (1970); In re Estate of Hitchcock, 385 Pa. 569, 124 A.2d 360 (1956); In re Will of Taylor, 95 N.Y.S.2d 459 (1950).
Rather than casting doubt on the rule stated in Gau-*818dette, this court's decision in Krueger reaffirms that rule. In Krueger this court distinguished the circumstances giving rise to a deductible debt from those involving a transfer pursuant to a contract to dispose of property by will. The court there was concerned with the taxability of a check payable on the death of the drawer for personal services rendered during his lifetime. This court disagreed with the contention that this transaction was a testamentary disposition:
With this contention, however, we cannot agree. In the first place, a comparison of the cited cases with the instant case reveals a marked difference not only in facts, but also in legal theory. In the former, action was brought on a contract to make provision by will. . . .
The instant case, on the other hand, is one of a contract creditor seeking recovery against the estate for services rendered. Hence, the position of Gostina is no different from any other creditor of the estate. Consequently, the principle announced in In re Gaudette's Estate, supra, is not authority here. It is obvious that there is a marked difference between the payment of a contractual obligation, as an established claim against the estate, and a transfer of property pursuant to a contract to dispose of property by will.
Although the indebtedness was not payable until death, still the payment-time element could not change its status from a debt to something either testamentary in character or a device designed to evade the tax statute.
(Some italics mine.) In re Estate of Krueger, at 335-36.
This analysis, contrary to the assertion of the majority, clearly supports the position that a contract to devise is not a debt owing by the decedent. Thus, the bequest is not deductible from the value of the estate for inheritance tax purposes.
Moreover, the decision in Birkeland does not support the majority's holding, as that case was concerned with a wholly different type of transfer and consequently different statutory provisions governing taxation of the transfer. Birke-land involved a transfer of property pursuant to a *819partnership agreement providing that the widow of a deceased partner had a right to purchase her deceased husband's partnership interest at book value.
RCW 83.04.060 (later codified as 83.04.025) provides that any transfer, "except in the case of a bona fide sale for an adequate and full consideration . . .", the possession or enjoyment of which is to be effectuated at a time determinable solely by reference to the transferor's death, is subject to an inheritance tax. (Italics mine). The court held that there was no question but that the transfer was to be effectuated at a time solely referable to the death of the trans-feror, and would under normal conditions be a taxable transfer. Nonetheless, because the statute specifically excluded sales made with adequate supporting consideration, the court held that to the extent the book value purchase price represented the fair market value of the partnership interest, the sale was exempt from taxation. Any excessive value received in the sales transaction would constitute a gift within the contemplation of the statute, subject to the inheritance tax.
Birkeland does not support an argument that an inheritance tax applies only to gratuitous transfers. The exception from inheritance taxation found in RCW 83.04.025 is confined to a bona fide sale for an adequate and full consideration.
In the instant action there is no sale of property with the transfer to take effect after death, but a contract to make a will. The Washington inheritance tax scheme contemplates this distinction. The Legislature has made it quite clear that every transfer by will or intestacy is subject to an inheritance tax. Moreover, no exception has been provided for a transfer pursuant to a contract to make a will even if it is supported by adequate and full consideration.
The holding of In re Estate of Gaudette has not been undermined by the decisions in Krueger and Birkeland and clearly controls in this action.
I would affirm the judgment of the trial court disallowing *820the deduction for the transfer made pursuant to a contract to make a will.
Andersen and Goodloe, JJ., concur with Dore, J.RCW 83.08 was repealed by Laws of 1981, 2d Ex. Sess., ch. 7 (effective January 1, 1982).
RCW 83,04 was repealed by Laws of 1981, 2d Ex. Sess., ch. 7 (effective January 1, 1982).