dissenting. — At the audit the Commonwealth claimed “collateral inheritance tax on the amount passing to charity.” (See Appearance Slip of counsel.) As nothing passed or was to be awarded to the Borough of Columbia except excess income, I declined to allow tax on such income. At the time I felt that my ruling was justified by the given facts; despite the argument of counsel for the exceptant, I am “of the same opinion still.” The Borough of Columbia has a vested interest in the corpus; this interest cannot be divested; all income earned by that corpus in excess of what is required to pay annuities belongs to the borough, and this whether it accumulates by direction, by want of direction or is given in express terms by the will. This, therefore, is a tax on such income and on nothing else. The record shows that the Commonwealth has once before collected tax on the specific amount of income, and the probability is that it will do the same again. I know of no authority in point authorizing such method of taxation, nor do I believe there is any; counsel cites none. A sum certain of income earned by principal, which principal is vested in a residuary legatee, is not, in any proper sense of the word, an estate!
I write this because I cannot concur in the majority opinion reversing my ruling that, in the circumstances of the instant case, the income is not taxable. While I have my own views of what should be done, or at least attempted, I deal with the record as made up, the parties in interest not seeking a declaratory judgment.
Henderson, J., was absent.