(dissenting). Appellant was granted a rehearing, and urges that both the circuit court and this court were in error, for the reason that the New York cases relied upon were founded upon the construction of a statute different from the statute of this State, relative to the payment of a mortgage debt upon real estate; that the statute of New York requires the heir or devisee to satisfy the mortgage out of his own property, unless otherwise provided by will, and that in Michigan the personal estate of a decedent is first chargeable with the payment of all debts. Upon a re-examination of the cases cited in the opinion of the learned trial judge, and the conclusions drawn therefrom, adopted by this court in this case (154 Mich. 5 [117 N. W. 558]), and a consideration of the briefs and oral arguments upon the rehearing, we are satisfied that the former decision was correct. The statute provides for the taxation of inheritances, transfers of property, etc., and is known as the “inheritance tax law.” The question involved does not affect the classification under the statute. The rule laid down does not discriminate between those in the same class. The statute was construed to require the deduction of the value of a mortgage upon real estate from the value of the real estate, to find the basis in computing the amount of the inheritance tax. No one is given any property by such determination, nor is any property taken from any one. The basis adopted is the only one clearly intended by the legislature, in the *424form of the judicial determination of the probate court of transfers subject to inheritance taxation, required by section 17, Act No. 195, Pub. Acts 1903, and does not repeal any of the statutes of this State relative to administration and distribution of estates of deceased persons, and in fixing such basis the legislature was clearly within its constitutional authority. This is not a tax upon property, but upon the transfer, and the construction given applies to all transfers of the kind in question.
It was urged, when the case was first argued, that the New York cases were based entirely upon the New York statute, and the opinion discusses the question, citing In re Livingston's Estate, 1 App. Div. (N. Y.) 568 (37 N. Y. Supp. 463); In re Offerman's Estate, 25 App. Div. (N. Y.) 94 (48 N. Y. Supp. 993); In re Pullman's Estate, 46 App. Div. (N. Y.) 574 (62 N. Y. Supp. 395), etc. From these cases it appears that the matter was discussed, and is passed upon against the present contention.