(dissenting).
I dissent. In my opinion the moneys received by a beneficiary under a death benefit clause of a retirement plan covering employees of a company under the facts here disclosed are not taxable under the provisions of our inheritance tax statutes. This court in In re Fenner’s Estate1 has indicated that it approves the view that the proceeds of life insurance policies payable to specific beneficiaries are not, in the absence of statutes to the contrary, subject to taxes on the death of the insured because the proceeds pass by reason of the terms of the insurance contract and the rights of a beneficiary arise at the time the contract is made and not upon the will of a testator or under the intestacy laws.2 Because of this, it is my opinion that the proceeds is not property includable within the gross estate of a decedent under the provisions of Sec. 59-12-3, U.C.A.1953, which provides that property shall be included which passes “by testamentary disposition or by law of inheritance or succession * * * or by deed, grant, bargain, sale or gift made in contemplation of the death of the grantor, vendor or donor, or intended to take effect in possession or enjoyment at or after his death * * * ” This reasoning is equally applicable to the death benefit clause in. group retirement insurance as far as the beneficiary under such clause is concerned. His right to the benefits came into being at the time the policy was issued, even though the insured might have the right to change the particular beneficiary at will, and it passes to him under the terms of the policy and not as a sale or gift made in contemplation of death or under a will or under the intestacy law. The fact that the beneficiary’s right was part of a group annuity contract does not change the nature of the right, which is to obtain the benefits under the terms of the contract upon the death of the insured.3 I think that the legislature .recognized the fact that annuity insurance policies might also be life insur-*439anee policies when in Sec. 31-11-2, U.C.A. 1953 it said:
“Annuities are all agreements to make periodical payments where the making or continuance of all or some of the series of such payments, or the amount of any such payment, is dependent upon the continuance of human life, except payments made under authority of the previous paragraph.” (Emphasis mine.)
The previous paragraph defines life insurance. The right which the beneficiary has is an endowment benefit. Endowment benefits are included within the definition of life insurance. If endowment benefits were to be included within the definition of annuities there would have been no need for the legislature to have made the exception to distinguish payments made under the annuity provisions of the contract and those made under an endowment provision for the benefit of one other than the insured.
. In re Fenner’s Estate, 2 Utah 2d 134, 270 P.2d 449.
. 150 A.L.R. Annotation p. 1288, Sub. Ilia.
. In re Fligman’s Estate, 113 Mont. 505, 129 P.2d 027.