dissenting :
It is admitted in the opinion filed on behalf of the majority of the court in this case, that the invested funds aggregating §81,646,779, are properly to be taxed, if they are held in trust for others. It can only fairly escape the same taxation as other moneys at interest pay, if it is owned by the trust company in its own right. It appears from the record that in 1898, when the commonwealth undertook to do the very thing which the trust company now says ought to be done, that is, tax the insurance assets as the property of the company held by it in its own right, the company strenuously resisted. It then set forth, referring to its charter, that it was “ authorized by said charter to conduct, and it does conduct, in pursuance of said charter authority, two separate and distinct branches of business, viz.: the business ordinarily incident to a trust company and the business of a life insurance company. . . .
“ Its capital stock, surplus fund, and undivided profits above mentioned are not used with reference to, or in connection with, or as part of, its life insurance business in any way whatsoever, but are entirely separate and distinct therefrom, and its stockholders, as such stockholders, have no interest in the life insurance business, which is conducted as other life insurance companies are conducted, not for the benefit of stockholders but for the benefit of the insured; it being expressly provided by the Act of February 18, 1869, P. L. 194, supplementary to the original act incorporating the company, that £ the net profits to be derived from the business of life insurance, after deducting the expenses of the company, shall be divided pro rata among the holders of the policies of such life insurance, equitably and ratably, as the directors of said company shall and may, from time to time, ascertain, determine, and report the same for division.’ Such divisions are from time to time made *82to the holders of policies, but no division of profits arising from the insurance business are, or ever have been divided among the stockholders as such. The assets of the insurance part of the company’s business are kept in an entirely separate and distinct fund, and are not covered by the capital stock of the company, and have no relation thereto, no more than if the insurance business were conducted by an entirely separate and distinct corporation.”
The contention of the company in this respect was well founded and was sustained by the Dauphin county court. But the present attitude of the company is entirely inconsistent with the view for which it so stoutly and successfully contended at that time. The result is that under the conclusion reached by the trial judge in this case, and affirmed by the majority of this court, this very large invested fund, composed of the insurance assets of the company, escapes taxation altogether. Under any other circumstances than those in which it now seeks to avoid taxation, the company would no doubt reject with vigor, any suggestion that it did not hold the insurance assets in trust for the policy holders. It would be most insistent that in common with all other sound and reliable insurance companies, its attitude to its policy holders is that of a pure trusteeship. The policy holders contribute the capital, which is invested on their account to equalize the mortality risks; and after paying the cost of administration, the whole amount, surplus as well as legal reserve, is morally and equitably the property of the policjr holders. Not a dollar of it belongs to, or can in any way lawfully be distributed among the stockholders of the trust company. They have no more right to it than to any fund which the company may hold as guardian, administrator or receiver.
There can be no question but that the fund now under consideration is made up of the proceeds of premiums paid by the policy holders to cover the mortality risks for the whole period' of their policies. It is the amount reserved to meet claims accruing from the insurance in force. It belongs to the holders of policies who are entitled at their maturity to the face value and in addition to a pro rata share in the accumulated profits.
How then is it possible to hold that this is not a fund held by the company in trust for them ?
*83The company holds the legal title to the fund, but to suggest that it holds the fund in its own right, for the benefit of its stockholders, is startling in the extreme. The only benefit which can accrue to the stockholders of the trust company, is in the handling of the fund as a deposit in course of investment, and from the incidental advantages which accrue from the control of large sums of money. In addition to this, under its charter privilege, all expenses of conducting the trust company are chargeable to the insurance department of the business. To my mind, it is perfectly clear that the fund in question is made up of trust assets, and as such, they are taxable as in the case of individuals.
I would therefore reverse the decree of the court below, and dismiss the bill.
Dean, J., concurs in this dissent.