(dissenting).
This court held in Re McAnelly’s Estate, ......Mont......., 258 Pac. (2d) 741, that the bank account which was established within three years prior to the death of decedent is taxable as property of the decedent. It likewise was noted that Pearl Griesinger does not claim the bank account as her own either by right of survivorship or by virtue of having deposited her own money in the account. In effect we held that the entire $68,282.01 was taxable as property of decedent. As I see it, since the evidence shows that Pearl Griesinger had no interest in the joint bank account and since she disclaimed any interest in it, it passes to the residuary legatees under the will, viz., Pearl Griesinger, Alice Quinn and Frank Maxwell. The court’s order determining the inheritance tax was made on this basis, and I think correctly so.
In any event, one-half of the joint account, the one-half retained by the decedent should be taxable to the three residuary legatees. R. C. M. 1947, sec. 91-4405. If the rebuttable presumption of a gift of the other half to Pearl is not sufficiently overcome by the evidence, then it is only that one-half together with Pearl’s interest as a residuary legatee in the other one-half that is taxable to her.