dissenting. — The matter before the court on exceptions is the construction of an act relating to transfer inheritance tax, passed in 1923.
I, therefore, fail to see the application of Mitchell’s Estate, 79 Pa. Superior Ct. 208 (decided in 1922, before the act was approved), either in so far as it applies to the items of credit embodied in the first exception or, for that matter, to the funeral expenses which are the subject of the second exception.
The decision in the cited case was in effect that a surviving husband who elects to take against his wife’s will cannot invoke the benefit of an item in *525that will which practically exonerates him from payment of the funeral expenses. In my judgment, this was proper. But no question of taxation nor of the method of determining the clear value of an estate passing from a decedent was involved, and, therefore, the case is not an authority for the action of the auditing judge in the instant case.
He, in passing upon the question raised by the Commonwealth, ignored the plain wording of the act under which the tax was assessable.
The Act of June 12, 1923, P. L. 1078, by its 2nd section, provides that all taxes imposed by the act shall be at the rate of 2 per centum upon the cleatr value of the property passing to a husband; and, further, that in ascertaining the clear value the only deductions, among other things, shall be the debts of the decedent, and reasonable and customary funeral expenses.
In the instant case, a woman, having a separate estate of upwards of $36,000, contracted in her lifetime — and as she contracted, liability attached to her separate estate — for items aggregating $360.08. This fact is shown by stipulation filed of record. In fixing the clear value of the estate, the auditing judge, despite the stipulation, added these items of credit and treated such contracts as if non-existent. He also added to the balance shown by the account so much of the funeral expenses for which credit was taken as was agreed upon as reasonable in the premises. In this, I believe, he erred. There is nothing on the face of the act itself which shows that it does not apply to every decedent, male or female, married or single. The ruling is in the teeth of the act itself.
Apart from the provisions of the will which direct payment of just debts and funeral expenses, I am of opinion that the auditing judge reads into the act something which is not there nor intended to be there, and for that reason I dissent.