concurring.
Whether the personal property of the decedent to which the surviving spouse succeeds under the act of 1907, ch. 49, is subject to an inheritance tax is a question which is perhaps not clear from the wording of the statute, and which has provoked much discussion and required of the court unusual consideration. Tt is said in the brief: “In the reason of the rule, therefore, there is no distinction between realty and personalty, and such personalty as comes within the reason of the rule must be likewise immune from the tax.” This proposition is ably presented and the position fortified by the collection of numerous authorities. The act of 1907 is a comprehensive act and is complete in itself ; it repeals many sections of the former statutes which are inconsistent with its general provisions, and those which appear to be inconsistent with the purpose and spirit of the new act. The act of 1907 took several distinct and important rights that had existed under the former statute away from the surviving spouse, and, as all agree, intended to give something better in their place. It repealed dower and curtesy. The former statute provided that if the husband exchanged land for other lands the widow should not have dower in .both, and that-statute is repealed. The former statute provided that if the husband mortgaged his land before marriage the wife should *835not have dower as against the mortgagee, bnt against all other persons, and if the husband purchased land during marriage, and at the same time mortgaged it for the purchase money, the widow should not have dower as against tlie mortgagee, even if she did not sign the mortgage, and if such mortgaged lands were sold upon the mortgage after the husband’s death the widow should have only an income of one-third part of the surplus, and if the heirs or other persons claiming under the husband paid the mortgage the amount so paid should be deducted from the land, and the widow should have only one-third of the rents. The old statute provided that if the husband had deeded land in his lifetime, and the lands had enhanced in value afterwards, the widow should have dower only in the value at the time they were alienated. The old statute also provided that when the husband died seized of land in several counties the widow’s dower might be assigned in land in either county, and where the estate could not by divided, whether in one or more counties, the dower might be assigned in the rents, issues and profits. The old statute provided that any woman residing out of the state should have dower in the land of which her husband should die seized. All these provisions were repealed. There were other provisions in the old statute which were repealed by the new. The new statute provides simply that the surviving spouse shall have the* same portion of personal property as of real property. In case there is only one child the surviving spouse gets one-half of the property, real and personal. Under the old statute, if there was no child, the wife took the whole property. Under the new statute apparently she only takes one-half. This applies to personal property as well as real. In view of all these changes', and in view of the fact that the rule under the new statute is the same for personal property as it is for real, it is not inconsistent to suppose that the legislature intended that the surviving spouse takes both by the same right, that is,' by right and because of the marriage relation, and not by inheritance. Such construction is plain, and avoids many complications that might otherwise arise.
*836The title of the present act is, “An act to provide for succession to the estates of decedents and to repeal (sections named).” Under this act the husband and wife are placed upon exact equality as to the rights of each in the property of the other. The surviving spouse “succeeds” to the rights which the statute gives in the property that was held in the name of the decedent. It does not “pass by will or by the intestate laws of this state.” It therefore is not within the letter of the inheritance tax law, which by express terms provides only that property which so passes “shall be and is subject to a tax.” Comp. St. 1911, ch. 77, art. VIII, sec. 1. If, therefore, a tax is imposed upon property to which the surviving spouse succeeds by virtue of this act of 1907, it must be by construction as a necessary implication from the general purpose and spirit of the act. It is true that there is no reference in this later act to the inheritance tax law; but no such reference was necessary, for that law was purposely and necessarily so framed as to adapt itself to any changes that might be made in the law of wills and the law of devolution of estates of decedents. The provision that all property “which shall pass by will or by the intestate laws of this state” contemplates that such laws may be changed from time to time, and is so worded as to apply to property which so passes under the law at the time. Our object of course is to ascertain and declare the intention of the lawmakers. It seems to me that the scope and purpose of the new legislation indicates that the legislature acted advisedly Avhen avoiding any language that could be construed literally so as to impose a tax on property that passes from one spouse to the other. They use a new expression in the title of the act; it is “succession to the estates of decedents,” an expression broad enough to include both inheritance and conjugal rights. The former act provided that the wife should take as a child, which was naturally construed to make her an heir. But now the husband succeeds to property of his deceased wife as the wife does to property of her deceased husband. The policy *837of our law, as developed, by legislation from time to time, lias been more and more to place husband and wife upon an equality as to their property, and to regard each as interested in the property held in the name of either. It may have been considered that the marital relation is of great importance to the state, and generally covers the active life of both parties. Their fortunes are made together, and by their mutual help and contribution. When their property descends to their children it is taxed. In some states only such property is taxed as goes to collateral heirs for want of children to inherit. Whatever may be just in that regard, it seems clear that it is not unreasonable that such property as the surviving spouse takes as a matter of right, not by the will of the decedent or the intestate laws, and without regard to whether decedent was testate or intestate, should be taxed, if at all, only when that surviving spouse passes it on to his or her children. Tims the whole property, not used by those who produced it, is once taxed, which may very well be thought the reasonable intention of the legislature.
Douglas County v. Kountze, 84 Neb. 506, has no application. Herman Kountze died' in 1906, before the present statute fixing the rights of the surviving spouse in the personal property of the decedent, and if it is true that the statute gives the right by virtue of the marriage, and not by inheritance, then Douglas County v. Kountze is not in conflict with the present opinion.