This case is reported in 154 Mich. 5 (117 N. W. 558). The facts are there sufficiently stated. A rehearing has been granted upon the question of whether, in the determination of an inheritance tax, a debt of the deceased secured by real estate mortgage should be deducted from the personal estate in determining the amount upon which the tax is to be paid. The conclusion was reached in our former opinion that no deduction should be made on account of such mortgage indebtedness. In reaching that conclusion reliance was placed upon New York decisions, which are based upon a statute similar to our statute imposing a tax on inheritance. We are convinced that in reaching this conclusion we failed to give sufficient force to the distinction which exists between New York and Michigan, as to the law for the distribution of estates. It is the undoubted rule in this State that the net personal ostate for distribution consists of the personal property of the deceased after all debts and expenses have been met, including the debts secured by mortgage upon real estate, such debts being a charge upon the personal estate, as well as unsecured debts. Larzelere v. Starkweather, 38 Mich. 96; Willard v. Van Leeuwen, 56 Mich. 15 (22 N. W. 185); Osmun v. Oakland Circuit Judge, 107 Mich. 27 (64 N. W. 949); see, also, Schouler on Executors and Administrators, §§ 430, 512; 3 Williams on Executors (7 Am. Ed.), p. 147.
The statute of New York, on the other hand, provides that:
"Whenever any real estate, subject to a mortgage executed by any ancestor or testator, shall descend to an heir or pass to a devisee, such heir or devisee shall satisfy and discharge such mortgage out of his own property, without resorting to the executor or administrator.” N. Y. Rev. Stat. (1st Ed.) pt. 2, chap. 1, tit. 5, § 4.
The cases cited from New York would indicate that the conclusion of the New York courts that the amount of a mortgage is not to be deducted from personal property in determining the amount to be taxed is based, in large part at *422least, upon the fact that, under the statutes of distribution, the real estate, and not the personal property, is chargeable with the debt.
In re Kene’s Estate, 29 N. Y. Supp. 1079, in overruling the appraiser who held that the mortgage should be deducted from the personal estate, and not from the real estate, the surrogate said:
‘ ‘ If this view [that of the appraiser] were correct, the mortgage would be satisfied out of the personal estate, and the devisee of the house and lot would take it free therefrom, and so be liable to the payment of the tax. In this he [the appraiser] seems to be in error. Such was the rule in England. But it was changed in this State as early as 1786, and is continued to the present day ” — citing the statute above referred to.
In re Livingston's Estate, 1 App. Div. (N. Y.) 568 (37 N. Y. Supp. 463), the real estate was subject to a mortgage, and the executor had power to use the personal estate in paying the mortgage, and he contended that the mortgage debt under the circumstances ought to be deducted from the personal estate. In overruling the contention of the executor the appellate court said:
. “ The learned surrogate, in declining to reduce the personal estate as demanded by the appellant, acted upon the principle that the mortgage debt was, under the Revised Statutes, properly payable by the heir or devisee. N. Y. Rev. Stat. (1st Ed.), pt. 2, chap. 1, tit. 5, § 4. The appellant insists that the statute (which requires mortgage debts to be paid from the real estate) is inapplicable to cases where the same persons take the realty and personalty as a blended fund. The contrary seems to us to be the correct view.”'
We are convinced that the intent and purpose of this statute was to tax the personal estate subject to such deductions as should be made directly under the general statute of distribution.
Attention has been directed to section 17 of the act (Act No. 195, Pub. Acts 1903), which prescribes the form of the order to be followed by the probate judge. This form *423was evidently copied from the New York statute, but can hardly be held, in and of itself, to have established a rule for fixing the amount of the inheritance tax. That is done by other provisions of the statute which render the form inserted inapplicable.
The order of the court below should be reversed and the order of the probate judge affirmed.
Blair, C. J., and Grant, Ostrander, Hooker, Moore, and Brooke, JJ., concurred with Montgomery, J.