dissenting, February 10, 1956. — While the facts of this case are unique, the principle of law *595which this decision will enunciate will in no sense be sui generis. The decision of the majority will create a precedent which will not only result “in a race for deductions”, but in many cases injustice substantively and chaos administratively in this phase of tax legislation. If this taxable be declared entitled to the claimed deduction, other similar nonprobate property in' all estates will be entitled to participate in all claimed deductions, even though such property does not come into the hands of the personal representative, and is not amenable to the payment of the debts, funeral and administration expenses, etc., all of which must be paid out of the probate estate. In volume I, Hunter’s Orphans’ Court Commonplace Book “Inheritance Tax, §6 (c), p. 614” are listed some of the other types of similarly taxable property. See Dick’s Estate, 273 Pa. 69, 71, involving a tax payable by the trustee of an inter vivos trust; Graham Estate, 358 Pa. 383, defense bonds in joint names; Commonwealth v. Nolan Estate, 345 Pa. 98, joint bank account.
Thus the beneficiaries of probate estates whose shares are liable for the payment of the debts will have to share tax deductions .with those who have acquired nonprobate property which is not liable for debts, etc. The injustice to probate beneficiaries as well as to the Commonwealth is apparent. This will create a lack of uniformity which is repugnant to article IX, sec. 1 of the Constitution of Pennsylvania. The unutterable confusion which will result in the attempt to determine the allocation of the deductions and the rate of tax on the net estate is something which the legislature never intended to create nor did it intend to open the door to fraud and collusion between taxpayers, the opportunity for which the majority opinion would encourage.
When one contemplates the problems it will raise not only in the estates of Pennsylvania decedents who *596died leaving real and personal property held by various tenancies, encumbered and unencumbered located here or leaving intangible personal property in various other states or foreign countries, as well as in the estates of non-Pennsylvania decedents who die leaving tangibles and real estate located here and subject to Pennsylvania tax, and the many other subjects of taxation, one realizes the extent of the mischief which the majority opinion would visit upon the administration of this act of assembly. The act, as amended, is definitely a hodgepodge. It is not, however, the absurdity which the majority opinion would make of it. It is all very well to state that we shall meet these questions when they arise, but we must answer them 'now. They are inherent in this case; the ripened seeds are present.
The majority decision is erroneous because it removes the deduction section of the act from its context, and then erroneously applies to it the strict presumption against taxation.
Actually there are three pertinent parts to section 58, art. IV, of the Statutory Construction Act of May 28,1937, P. L. 101.9, supra, upon one of which the hearing judge relied. These three sections are as follows: “All provisions of a law of the classes hereafter enumerated shall be strictly construed': ... (3) Provisions imposing taxes; ... (5) Provisions exempting persons and property from taxation; . . . [and] (concluding paragraph). All other provisions of a law shall' be liberally construed to effect their objects and to promote justice.”
These presumptions no doubt are derived from Justice Simpson’s concurring opinion in Callery’s Appeal, 272 Pa. 255, 272 (1922) as follows: “In construing statutes relating to taxation, three rules must be steadily borne in mind: (1) No tax can be collected in the absence of a provision clearly imposing it upon the class to *597which the taxpayer or his property belongs; (2) Where the taxpayer or his property is within the general language of the statute imposing the tax, all exempting provisions are to be strictly construed against the claim for exemption; (3) Provisions relating either to the imposition of or exemption from a tax, are to be so construed as to give effect, as nearly as reasonably may be, to the common law duty to tax equitably and ratably all those within the given class, this subject being partially dealt with also in article IX, section 1, of our Constitution.” This case was cited with approval in Shillington Bank Trustees’ Case, 129 Pa. Superior Ct. 316, wherein the court also cited Commonwealth v. Sunbeam Water Co., 284 Pa. 180; Commonwealth v. Stegmaier Brewing Co., 309 Pa. 52; Sellers’ Estate, 325 Pa. 377; Tack’s Estate, 325 Pa. 545.
The three decisions of the Supreme Court of Pennsylvania cited by the hearing judge sustaining the strict construction in the instant case all deal with taxable property. Neither these nor any other decisions, including Panther Valley Television Co. v. Summit Hill Borough, 376 Pa. 375, and Commonwealth v. Butler County Nat. Bank, 376 Pa. 66, apply the presumption in deduction cases. In Krause’s Estate, 325 Pa. 479, 483, the court limits the presumption specifically to the determination of “taxables”. Hermann Estate, 349 Pa. 230, applies the presumption against exemptions. Since exemptions in inheritance tax law are on an equality with deductions, we should hold that the presumption against' exemptions likewise applies to deductions, and the burden is upon the one claiming the deduction to prove his right to it.3
*598Lancaster City Ordinance Case, 383 Pa. 471, decides that a rule of statutory construction set forth in the Statutory Construction Act is not to be applied where it would result in a construction inconsistent with the manifest intention of the legislature: Statutory Construction Act of May 28, 1937, P. L. 1019, sec. 31. The action of the legislature in drawing non-probate property, by successive amendments to the Act of 1919 into the orbit of taxables was in accordance with modern concepts occasioned by the practice of many owners of property transferring it by various devices prior to death in order to avoid inheritance taxes. In so doing it was the manifest intention of the amendments to retain the benefits of deductions exclusively for probate property which is amenable to the payment of debts and not to require it to share such benefits with nonprobate property which is not amenable to the payment of debts which are the subjects of the deductions. If the legislature had intended to extend the benefit of deductions to nonprobate property, it would have so declared. Were the presumption against the Commonwealth, it might be well contended that the legislature in failing to expressly extend the benefits of the deductions to nonprobate property, intended to include it.
In McClelland v. Pittsburgh et al., 358 Pa. 448, 452 and 453, and in Philadelphia v. Samuels, 338 Pa. 321, 324, the Supreme Court in applying the 1937 Statutory Construction Act, supra, stated: “words in taxing statutes may be and are used in different senses. The object of interpretation and construction is to ascertain and effectuate the intention of the legislature. For this purpose the occasion and necessity for the law, and the object to be attained, must be considered.” In Commonwealth v. Budd Realty Corp., 345 Pa. 343, 346, appears the following: “As was said in Commonwealth v. Mortgage Trust Company, *599227 Pa. 163, 182: ‘It is not so much what the general rule of construction is as what did the legislature intend . .
Section 52, art. IV of the Statutory Construction Act of 1937, supra, reads: “In ascertaining the intention of the legislature in the enactment of a law, the Courts may be guided by the following presumptions among others: (1) That the Legislature does not intend a result that is absurd, impossible of execution or unreasonable.”
This section was applied in Dawkins Unemployment Compensation Case, 358 Pa. 224, where it was held that all laws should receive a sensible construction, that statutes must be construed, if possible, that absurdity and mischief may be avoided. In Indiana Township Lines Alteration Case, 171 Pa. Superior Ct. 642, 647, affirmed 373 Pa. 319, Judge (now Justice) Arnold said:
“In Null v. Staiger, 333 Pa. 370, 375, 4 A. 2d 883, the Supreme Court quoted from Endlich on the Interpretation of Statutes, sec. 258: ‘ “It is obvious that the administration of justice requires something more than the mere application of the letter of the law, designed for some particular class of ordinary cases, to all others, however modified by accident or withdrawn by extraordinary circumstances from the spirit of its enactment. It follows that ‘general terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will- always, therefore, be presumed that the Legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter’ ”
The Transfer Inheritance Tax Act of 1919 is divisible into three parts. The first designates the subjects of taxation, the second, the rate of the tax, and the third, deductions. The subjects of taxation may be *600classified under two distinct headings. The first is probate property, i.e., property immediately owned and possessed by the testator and the possession of which upon his death passes to his personal representative, devisee or heir and which is liable for the debts, etc., listed in the enumerated items of deduction. This subject is dealt with in Tack’s Estate, 325 Pa. 545, wherein Justice (now Chief Justice) Horace Stern stated that in theory the operation of the Pennsylvania inheritance tax is actually a retention by the Commonwealth of a portion of the deceased’s property, the rest of which the Commonwealth permits decedent to transfer whether by will or under the Intestate Laws to certain beneficiaries. The second heading may be termed nonprobate, i.e., taxables which do not come into the hands of the personal representative and which are not amenable to the payment of the debts of decedent. This type of taxable, the subject of this case, includes the right of accrual to the survivor upon the death of a joint life tenant, of complete possession, ownership and enjoyment in the subject of the tenancy: Cochrane’s Estate, 342 Pa. 108. In this type of taxable it is quite clear that no property passes from decedent because whatever property right he possessed in the taxable asset died with him.
In Cochrane’s Estate, supra, where the constitutionality of the pertinent Amendment of July 14,1936, P. L. 44, was sustained, the court construed several ambiguous sections of the act in deciding: (1) That both the probate and nonprobate property has to be appraised in one appraisement. This does not mean that the nonprobate property comes into the hands of the personal representative, because the latter is only liable for that which passes through his hands; (2) who shall pay the tax depends upon who receives the property; (3) the personal representative pays *601the tax only on assets coming into his possession; (4) the Commonwealth must look to the individual who receives nonprobate property for the tax on such property at the rate fixed by the Act. Therefore, in our treatment of the obscurity or ambiguity in the deduction section, we must endeavor to make sense out of the language in order to do justice.
The term “clear value” as employed in the second section of the act was held in Scranton Lackawanna Trust Co., to use, v. Scranton Lackawanna Trust Co. et al., 310 Pa. 125, to mean the equity of redemption in mortgaged real estate, and in Moffett Estate, 369 Pa. 159, to signify “net worth”.
When we come, therefore, to the deduction section we observe that it deals with the “clear value” of “such estates”. The question then arises whether the phrase “such estates” comprehends the one or both types of taxables. The phrase, therefore, becomes inherently ambiguous. The anomalous result. reached by the majority opinion arises from a refusal to recognize this ambiguity and in concluding that “estate” is synonymous with “property” and “property passing” and, therefore, the deduction section deals with both types of taxables. It is practically common knowledge and, therefore, is properly the subject of judicial notice that the word “estate” in decedent’s estates refers to the estate of decedent which comes into the hands of his personal representative and which is amenable to his debts. In the interests of a uniform, sensible and just solution, one that will void the absurdity and unutterable confusion otherwise resulting, I would hold that “estate” must be so construed and that any other connotation must be excluded. This is consistent with section 45, article V of the said Act of 1919 which states:
“The words ‘estate’ and ‘property’, wherever used in this act, except where the’ subject or context is re*602pugnant to such construction, shall be construed to mean the interest of the testator, intestate, grantor, bargainer, or vendor, passing or transferred to the individual or specific legatee, devisee, heir, next of kin, grantee, donee, or vendee, not exempt under the provisions of this act, whether such property be situated within or without this Commonwealth.” (Italics supplied.)
Construction should be derived, from the context, not necessarily from the general terminology. The narrow construction herein given to the key phrase, “such estates”, is supported by the principle that where a statute amends part of a general code so that its apparent effect i's to materially modify, partially destroy or interfere with the general purpose of the code by conflict with other provisions, the amendment should be strictly construed and made to conform to the general purposes unless the legislative intent is clearly and specifically otherwise: Ehret v. Kulpmont Borough School District, 333 Pa. 518, and Walters v. Topper et al., 139 Pa. Superior Ct. 292.
The majority opinion erroneously relies in part upon Kershaw Estate, 352 Pa. 205, and Mellor’s Estate, 286 Pa. 149. If at all apposite they stand for the opposite conclusion to that for which they are cited. In Kershaw the proceeding was an appeal by the personal representative of the solvent estate of a deceased husband who, with the surviving widow, had owned real estate by the entireties and upon which there was an outstanding mortgage, the bond for which had been executed by both the husband and the wife. Following the husband’s death, the widow sold the property, subject to the mortgage, and the Supreme Court decided that since decedent was personally liable on the bond, his estate was indebted for it. Had the bond been collected from the estate, the latter would have had a right of contribution from *603the widow for one half; that the right of contribution was, therefore, a taxable asset and the court below correctly allowed a deduction of one half of the amount of the bond in assessing the tax. The cited cases stand for the principle that a debt collectible from a solvent estate in the hands of a personal representative constitutes a valid deduction allowable to such estate.
Mellor’s Estate, supra, decided that although the surviving husband of a decedent may be liable, for her funeral expenses, the Act of 1919, as amended, lifts that responsibility for inheritance tax purposes only from him and places it upon the testamentary estate, thereby entitling the testamentary estate to the deduction of such expenses in the computation of the tax. This is entirely different from holding that the deduction is available to the computation of the tax on nonprobate property. In the cited cases the deductions were allowed as a matter of right. Here the taxpayer who has no interest in decedent’s estate and whose property is not liable for the debt is claiming as a volunteer. In Kershaw the equitable right of contribution arising from the widow’s liability for half of the debt was the asset of the estate, not the survivorship right of the husband in the property held by entireties. The taxable property here, not being the subject of the mortgage, which was security for the bond indebtedness, is not associated with any right of contribution.
The Federal cases cited in the majority opinion are inapposite. The natures of the Federal estate tax and of the Pennsylvania transfer inheritance tax are fundamentally different. The impact and the implications of the two taxes are also entirely different. This is exemplified in the necessity which impelled this Commonwealth to pass the Equitable Proration Tax Act of 1937 and the decision of the Supreme Court in *604Mellon Estate, 347 Pa. 520, wherein the fundamental equitable rights of contribution between taxpayers of Federal taxes were judicially invoked.
I would follow the decision in Keran Estate, N. Y. Surrogate Court, New York Law Journal, June 29, 1954, where it was held that the deductions for funeral, administration expenses and debts of the estate were limited to the amount of the “true estate” of decedent consisting of the personal property standing in his own name at the date of his death. Nonprobate property was held not entitled to deduction for such expenses and debts.
Palpably, the practice of the Attorney General as stated in the majority opinion in permitting deductions to the payers of taxes on nonprobate property for debts actually paid by such taxpayers is purely a matter of grace. Here the taxpayer did not pay the debt for which the deduction is claimed and for which her property is not amenable for payment.
The exceptions should be sustained and the appeal dismissed.
Judges Hunter and Shoyer join in this dissenting opinion.
See Neller Estate, 356 Pa. 628; Mills’ Estate, 367 Pa. 504, 509; Hetrick Estate, 78 D. & C. 52, 55; Ashbridge’s Estate, 47 D. & C. 343, 348; Geary Estate, 2 D. & C. 2d 453.