Dissenting Opinion
Boyle, P. J.,Exceptions are filed by the executrix of the will to the decree of the hearing judge entered February 28, 1958, dismissing the appeal of the estate of Gordon W. Cameron, deceased, from the inheritance tax appraisement filed January 22, 1957, by the Commonwealth of Pennsylvania. Exceptions are also filed to the decree of distribution entered March 14, 1958, in which transfer inheritance tax in the amount of $772.20 plus interest thereon in the amount of $86.87 was decreed to the Commonwealth of Pennsylvania.
The two sets of exceptions raise the same question, viz.: Whether the value of the payments required to be made by an employer to. the widow of an employe under an employer-employe agreement of which the *564widow is a third party beneficiary is subject to Pennsylvania transfer inheritance tax where none of the money payable under the agreement ever became the property of the deceased employe and he had no right or power to assign or otherwise affect the payments to be made to his widow after his death.
The hearing judge held that the commuted value. $38,610, of the monthly payments to be made to the widow under the agreement is subject to transfer inheritance tax and entered a decree dismissing the appeal of the executrix from the appraisement and another decree allowing the tax.
The Transfer Inheritance Tax Act of June 20, 1919, P. L. 521, art. I, sec. 1, as amended, 72 PS §2301, provides as follows:
“A tax shall be, and is hereby, imposed upon the transfer of any property, real or personal, or of any interest therein or income therefrom in trust or otherwise, to persons or corporations in the following cases: . . .
“(c) When the transfer is of property made by a resident... by deed, grant, bargain, sale or gift made in contemplation of death of the grantor, vendor, or donor, or intended to take effect in posession or enjoyment at or after such death . . .”
By the way of prefatory observation it appears that the case at bar is not viewed accurately if one accepts the term “deferred compensation” used in the stipulation filed by the parties as a proper description of the money benefits to be paid under the amended agreement of December 21, 1954, between decedent and Aluminum Company of America. Scrutiny of the agreement reveals that the “additional compensation” or bonus paid to decedent after November 23, 1953, was merely a standard of measurement of the benefits to be paid to decedent or his widow under the agree*565ment of December 21, 1954. The payments under the agreement are not “deferred compensation.”
The only property right which the husband possessed under the agreement was the right to receive payments during his life and after his retirement provided that he complied with the conditions requiring him to serve in an advisory capacity and to refrain from entering the service of a competitor of his employer. Any right of his to receive payments under the agreement ceased with his death.
It is certain that decedent, acting alone under the terms of paragraph 4 of the amended agreement, could not have eliminated Mrs. Cameron’s interest. Any change in the agreement could only be made with the consent of the other signatory to it, viz., the Aluminum Company of America. In addition there is the question as to whether Mrs. Cameron is not a third party doneebeneficiary of the agreement whose rights vested at the time of its execution on December 21, 1954, and who cannot be prejudiced by the parties to the agreement without her consent. The courts of Pennsylvania have looked with favor on the rights of donee-beneficiaries under contracts: Brill v. Brill, 282 Pa. 276; Fidelity-Philadelphia Trust Company v. Bankers Life Insurance Company, 370 Pa. 513; Logan v. Glass, 136 Pa. Superior Ct. 221. See also Rhodes v. Rhodes, 266 S. W. 2d 790 (Ky.), where the facts were that an employe and employer made an agreement under which an annuity was to be paid for 10 years to the employe’s son if the employe died before age 65. A clause in the agreement permitted renegotiation in view of the possibility of fluctuation in the value of American and British currencies. Subsequently the contract was renegotiated. The employe’s salary was increased and the employe’s wife was named as beneficiary instead of the son. Upon the death of the employe, before *566reaching the age of 65, his widow brought suit to compel payment to her of the annuity. The Kentucky Court of Appeals held that the employer and the employe could not, even acting together, rescind or amend the contract so as to deprive the son. of his rights thereunder.
It is true that the coming into possession of her rights was dependent upon the widow’s survival of her husband before the expiration of the 10-year term provided in the agreement. But the determining factor in resolving the question before the court is that no property of decedent was transferred by or from him to the widow by reason of his death. In Lowry’s Estate, 314 Pa. 518, 520, it was held:
“. . . The word ‘transfer’ as used in the title of the Act of 1919, and in the body of the act itself, and in the title of the amendatory Act of 1929, and in the body of that act, has a long established meaning. As applied to property it means that the owner delivers it to another person with the intent of passing the rights which he had in it, to the latter.” See also Tack’s Estate, 325 Pa. 545.
Decedent’s entire property rights under the agreement ceased with his death. He owned no part of any fund which was payable under the agreement. It is this fact which distinguishes the case at bar from Dorsey Estate, 366 Pa. 557, and Bayer’s Estate, 345 Pa. 308. As much as decedent could have assigned under the agreement was his right to receive payments during his life. He possessed no right to make an assignment affecting the rights of the widow, Mrs. Cameron: Entwistle v. Travelers Insurance Company, 202 Pa. 141. Any assignment of Mrs. Cameron’s rights could only have been made with her consent and the joinder of the Aluminum Company of America.
The distinction between situations where the funds transferred came from decedent and where they came *567from somebody else, such as decedent’s employer, is well drawn in the Burke and Enbody Estates, 3 Piduc. Rep. 344. Both of these cases involved payments to be made as directed by a decedent under company pension plans. In both cases the contributions were made by the employer. In the Burke case, to the extent the'employe made contributions to the fund, such contributions were concededly taxable. The transfers in issue, however, involved only contributions to the plan made by the employers. Although both employes had the power to designate the beneficiaries who would take the funds if they died before receiving the entire amounts, the Orphans’ Court of Philadelphia held that the transfers were not subject to inheritance tax. In both cases the employes had retired and were receiving benefits under the plans at their deaths. The remaining benefits were paid to the beneficiaries designated by them. The cases were decided by separate auditing judges and the court en banc affirmed both cases on the opinions of the auditing judges.
The distinction between having a property right in a fund and having the power to designate the beneficiary is admirably discussed by Judge Hunter where he states:
“The difficulty with the Commonwealth’s claim is that it confuses ownership of the fund with the right to designate the beneficiary of it. Conceding that the decedent had the absolute right to designate the beneficiary of the fund, she did not by exercising that right transfer her own property to the beneficiary. She did not own the fund over which she exercised the right, nor did she have the power to acquire it”: 3 Piduc. Rep. 358.
The case at bar is indistinguishable from Burke and Enbody Estates.
The exceptions should be.sustained.