(dissenting.)
I protest against this result, for to me it seems a judicial amendment of the inheritance tax statute. This of course is a mere characterization, but in attempted justification of it the following is submitted:
Our inheritance tax law (G. S. 1913, § 2271), imposes a tax “upon every transfer of property * * * or any interest therein * * * when the transfer is by will or by the intestate laws of this state, from any person dying possessed of the property while a resident of the state.” If, therefore, the transfer of a homestead to the children is by will or the intestate laws, a tax should be imposed.
In such a case the transfer is impossible except by will or the intestate laws for, so far as the children alone are concerned, *396a testator may do what he pleases with his homestead. Against his children alone he is just as much at liberty to devise the homestead to others as he is so to dispose of the rest of his estate. The law gives the children no vested interest in the homestead, and as to it they are just as open to disinheritance as they are with respect to the other property of a testator. How then is it possible to argue that the transfer of a homestead to his children, on the death of the owner, is not by operation of a will or the intestate laws? Testate or intestate, it is by operation of a will in the one case or the intestate laws in another. It is upon the negation of that argument that the majority opinion must stand.
There is nothing in our prior decisions justifying the present holding, for in not one of them (the Pettit Case, 137 Minn. 238, 163 N. W. 285, L. R. A. 1917F, 436; the Murphy Case, 116 Minn. 418, 178 N. W. 1003, 179 N. W. 728, and the Ekstrum Case, 159 Minn. 231, 198 N. W. 459), was the transfer of a homestead or any interest therein to a child or children under consideration.
The transfer of a homestead to a surviving spouse, under our statute, is a very different thiBg from one to a child or children. The interest of the surviving spouse arises by reason and upon the institution of the marriage relation. True, it remains inchoate until the death of the owner of the homestead. However, it is a vested interest in real estate and one not to be divested except by the consent in writing of the surviving spouse.
The rights of children are in a very different category. Essentially, they are of a different character. They may be divested by will, subject to the rule of Schacht v. Schacht, 86 Minn. 91, 90 N. W. 127. They do not vest upon the birth of children but only at the death of the parent. Then they vest solely by virtue of the will or by reason of the intestate laws of this state.
The argument that “Two legislatures have sat since the decision was rendered” in the Murphy case is of but little weight. In the first place the legislature is pretty well occupied with matters other than the search for judicial error in the construction of statutes. Moreover, we are concerned with the intention of the legislature that enacted the inheritance tax law, and not that of those that have *397convened since. In the next place, it is difficult to say how a legislator, entirely familiar with the decisions in the Pettit and Murphy cases, could anticipate an expansion of their doctrine so violent as to permit its application to the transfer of a homestead, by will or under the intestate laws, to the children of the deceased.
The suggestion that the transfer of the homestead to the children should not be burdened with the transfer tax as long as a similar transfer to a widow is not so laden has some force. But distinctions of that kind are for the legislature rather than the courts.
Finally, it is wholly beside the question to attempt any distinction between portions of an estate because the evidence of transfer, or the instrument consummating it, is in one case an order setting aside a homestead, and in the other a final decree of distribution. As was said by Mr. Justice Dibell, dissenting in the Murphy case, such things are mere “procedural” details. They are matters of form, not at all affecting the substance of the inquiry. The essential thing to determine is the genesis of the transfer. ' What creates the right — that without which there would be no transfer. In the widow’s succession to a homestead, the foundation of her right is the marriage relation and not, under the theory of our decisions, a will or the intestate laws. Not so with the children succeeding to the homestead upon the death of a parent. They inherit, take the property, not by virtue of any law controlling the relation of parent and child, but solely under the will or the intestate laws. That must be so because a will may deprive them of the homestead.
It follows then that children acquire the homestead, if at all, by will or the operation of the “intestate laws.” Therefore, subject only to the statutory exemptions, it should be held taxable.