(dissenting)':
I agree with the views expressed by Mr. Justice Pattebsokt on the first, second and third propositions, but I dissent from his discussion of the fourth proposition and from his construction of section 230 of the Tax Law (Laws of 1896, chap. 908), as amended by chapter 76 of the Laws of 1899. The construction of the statute given in the prevailing opinion renders the amendment nugatory, as it is the same as that which prevailed prior to the adoption thereof. The Collateral Inheritance Tax Law, as it formerly existed, provided,, in effect, that the tax upon contingent remainders should not be payable until the remainders vested in possession. Consequently, part of the tax was collectible immediately, and the collection of part was postponed uutil the vesting of the remainders.
This system was given a trial, after which the Legislature, by the amendment of 1899, in my opinion, intended to enact, and did very clearly prescribe, that all such collateral inheritance taxes should be imposed and collected forthwith. This amendment took effect prior to the death of the testator and it applies to his will.
The Legislature has not interfered with the disposition of property by will. It has, however, distinctly provided that where property is transferred in trust or otherwise to await the happening of a contingency, which is to determine the ultimate right thereto, the share and interest of the property which is to be forfeited to the State as a collateral inheritance tax shall be forthwith ascertained and deducted; at a future time when it shall be known definitely who takes then if their relationship to the testator would have required a lower rate, if that had been known when the tax was imposed, the statute provides for a return of the excess.
*38.To my mind this intention on the part of the Legislature is manifest. The provision is general, and I see no constitutional objection to its enforcement. The Legislature has, in effect, said that if property is so devised that the relationship of the ultimate transferee to the testator cannot be definitely determined, at the time of the appraisal of the property, for the purpose of imposing the collateral-inheritance tax, then a tax shall be presently imposed at the highest rate applicable to any of those whose interests'are uncertain or contingent, as if such interest then vested in possession.. In other words, the amendment of 1899 treats the transfer to the trustee, which takes place at the death of the testator, as the transfer upon which the tax is imposed, and it merely considers those who are contingently entitled as a means of determining the percentage of the tax.
Decree modified as directed in opinion, and as modified affirmed, without costs.