dissenting as to personal property.
I am unable to concur in the holding that personal property inherited by a surviving husband or wife is not subject to the provisions of the inheritance tax law.
The opinion takes the broad ground that no personal property of a surviving spouse is taxable as being derived by inheritance. The inheritance tax statute provides that when any property shall pa-ss by inheritance to husband or wife from the other the tax shall be 1 per cent, on the market value of all property received above $10,000, while *838a larger tax is assessed on persons related in a remoter degree. The opinion of the majority repeals this statute with respect to personal property without action by the legislature.
An examination of the only changes made by the law of 1907 in the inheritance of personal property shows that there is no basis for the theory that it in anywise affected or repealed the inheritance tax law in this regard. Prior to the enactment of the law of 1907, if the intestate left no children, all his real estate went to his widow for life, and at her death to his father. If he left a widow and no kindred, all his estate descended to his widow. The husband took nothing but his curtesy and homestead rights. By the 1907 law the surviving husband was also given the right to inherit, which was one of the most radical changes made. The share of both husband and wife was fixed at the same proportion, and the inheritance of the real estate was not made to depend upon the contingency of there being no children, but was taken in various proportions, depending upon the parentage of the children. As to personal property, however, under the new law the widow may in some cases receive identically the same amount of property as she would have received under the child’s share provision of the old law. This inheritance was taxable before the law of 1907, and I am unable to see why it is not still taxable. The title to the act is, “An act to provide for succession to the estates of decedents and to repeal sections -4903,” etc., and the act has nothing to do with taxation. If it is to be held that an act which merely creates a new class of inheritors and fixes the shares they shall take repeals the provisions of another statute relating to the taxation of inheritances, then we have in truth opened a Avide door for evasions of the proAdsions of the constitution preventing surreptitious legislation. Moreover, there is no repugnancy between the neAV law and the taxing law, and consequently, there is no repeal by implication.
It is also worthy of mention that this holding is un*839solicited. No one has had the hardihood to argue that the shares of stock are not subject to the inheritance tax on account of any change made by the law of 1907. The a pi fell ant’s claim is that the situs of personal property is at the residence of the owner, which was in Iowá, and that the shares are not within the jurisdiction of this court. The opinion, therefore, decides a point not presented or argued in the briefs. It also overrules Douglas County v. Kountze, 84 Neb. 500, without mentioning that case, which is directly in point as to the taxation of shares of stock.
The effect of the opinion will be that vast estates, consisting in large degree of personal property, such as involved in the Kountze case, and where the property is left either to the surviving husband or wife, will be relieved from taxation, which certainly was not in the legislative mind when the succession act was passed.
I also dissent from the opinion of Judge Sedgwick, which has been furnished me since the foregoing was written. The use of the word “succession” in the title of the act seems to me to indicate the very reverse of what it is construed to mean by Judge Sedgwick. In a large number of instances the words “inheritance” and “succession” are used interchángeably. It has been said that a “succession tax” “is one upon the privilege of acquiring properfcyby inheritance.” Wallace v. Myers, 38 Fed. 184. Speaking of the Iüwa inheritance tax lawTJudge Deemer says: “Such taxes as are imposed by the act under consideration have been almost universally denominated succession taxes, and they have been upheld on the theory that the right to succeed to property upon the death of the owner is the creation of law, and that the state, which creates this right, may regulate it.” Ferry v. Campbell, 110 Ia. 290. See, also, the definition of “inheritance” and “succession,” in Words and Phrases, and 37 Cyc. 1553.
There can be no argument, therefore, predicated upon the use of the word “succession” instead of the word “inheritance” in the inheritance statute of 1907. If the act can be construed to mean that property passing to one *840spouse on the death of the other passes “by Virtue of the. marital relations,” and not by inheritance, as Judge Sedgwick suggests, why does not property which passes from parent to child under the same act pass “by virtue of the parental relation,” and not by inheritance. The argument based upon the use of the word “succession” instead of the word “inheritance” is equally as sound in one case as in the other, and is equally without merit.
The inheritance tax law makes all property taxable “which shall, pass by will or by the intestate laws of this state.” The succession law of 1907 is indubitably “the intestate law of this state.” In fact, it is now the only intestate law there is in this state, and is clearly included within the terms of the taxing statute.
The quotation from the brief in the opinion by Judge Sedgwick is incomplete. It is followed by language which shows that it is only certain classes of personalty that the writer considers to be immune from the tax, “the courts universally holding that her allowances for support pending administration, her right to certain specific articles of personalty, such as household furniture, wearing apparel, and the like, in fact, all personalty which by statute goes to her at his death regardless of any attempt by him to dispose of it by will, is immune from inheritance tax.” This is the view the writer takes in this respect. Counsel nowhere contends that all personalty going from one spouse to the other is exempt, which is what the majority opinion holds, and the question is decided without argument.