dissenting:
It is my belief that the majority in Syllabus Points 1, 2 and 3 adopts a forced construction of W. Va. Code, 44-2-16a, and reads into W. Va. Code, 11-11-5, language that is nonexistent. The result, in my opinion, radically departs from what I consider to be a settled area of West Virginia estate practice.
Without any analysis, the majority holds that W. Va. Code, 44-2-16a, “provides that unless specific direction is given to an executor to pay federal estate taxes from a specific fund, the federal estate taxes shall be apportioned among the beneficiaries in proportion to their pro rata shares.” Syllabus Point 1, in part. In Dilmore v. Heflin, 159 W. Va. 46, 218 S.E.2d 888, 892 (1975), this Court recognized that W. Va. Code, 44-2-16a, was enacted in 1959 in order to modify this Court’s holding in Cuppett v. Neilly, 143 W. Va. 845, 105 S.E.2d 548 (1958). In Cuppett, we said:
“[T]he general rule supported by the weight of authority is that, in the absence of a state statute or a testamentary direction to the contrary, the ultimate burden of an estate tax falls on the residuary estate if the residuary estate is sufficient for the payment of the tax.” 143 W. Va. at 864-65,105 S.E.2d at 561.
There can be little doubt that W. Va. Code, 44-2-16a(2),1 *248modified Cuppett by providing generally that the federal estate tax should be shared pro rata among the beneficiaries in proportion to the value their inherited property bears to the total value of the estate.2 What the majority disregards is the provision of W. Va. Code, 44-2-16a(5), which contains the following proviso:
“But it is expressly provided that the foregoing provisions of this section are subject to the following qualification, that none of such provisions shall in any way impair the right or power of any person by will or by written instrument executed inter vivos to make direction for the payment of such estate taxes, and to designate the fund or funds or property out of which such *249payment shall be made, and in every such case the provisions of the will or of such written instrument executed inter vivos shall be given effect to the same extent as if this section had not been enacted.”
To my mind, this proviso embodies two distinct concepts. First, the testator can direct that his executor pay the taxes. The statutory phrase is: “to make direction for the payment of such estate taxes.” W. Va. Code, 42-2-16a(5). In this case, the will so provided in its first article:
“FIRST: I direct that all my just debts, funeral expenses of my last illness and all the expenses of the settlement of my estate, including any taxes which may be assessed by the Federal or State Government, be paid out of my estate by my Executor as soon as conveniently may be done after my decease.”
This provision is markedly similar to that contained in In re Ogburn’s Estate, 406 P.2d 655 (Wyo. 1965), where the court held the language supplied sufficient direction to exonerate the various legacies from the apportionment statute. Cf. Starr v. Watrous, 116 Conn. 448, 165 A. 459 (1933); In re Betts Estate, 2 Ill. App.2d 453, 119 N.E.2d 801 (1954); In re Crozier’s Estate, 105 N.H. 440, 201 A.2d 895 (1964); In re Horn’s Estate, 351 Pa. 131, 40 A.2d 471 (1945); Baylor v. National Bank of Commerce of Norfolk, 194 Va. 1, 72 S.E.2d 282 (1952); In re Cudahy’s Will, 251 Wis. 116, 28 N.W. 340 (1947). See also, 69 A.L.R.3d 122, 174 (1976); 71 A.L.R.3d 247, 312 (1976).
The second clause in the statutory apportionment exception is: “and to designate the fund or funds or property out of which such payment shall be made.” W. Va. Code, 42-2-16a(5). It is an error in logic to assume, as the majority does, that this phrase imposes a condition on the first phrase: “to make direction for the payment of such taxes.” I believe the second phrase simply represents a legislative recognition that a testator, instead of directing the executor to pay the taxes, may in the alternative designate particular assets out of which the taxes should be paid. In my opinion, such language would also constitute *250sufficient indication of the testator’s desire to preclude the application of the general apportionment statute.
Consequently, I would hold that where the testator directs in his will that the executor shall pay all just debts, including taxes which may be assessed out of the estate (which is the case here), there is sufficient direction on the part of the testator to preclude the application of our general apportionment statute. W. Va. Code, 44-2-16a.
The majority’s other error is its conclusion that W. Va. Code, 11-11-5,3 requires an apportionment of the federal estate debt to an amount equal to the federal estate tax due on West Virginia assets.
In Central Trust Company v. James, 120 W. Va. 611, 199 S.E. 881 (1938), we held held that the term “debt” or “encumbrance” used in this statute was sufficiently broad to include the debt of federal estate taxes, and such debt could be deducted before computing the State inheritance tax liability. In Cuppett v. Neilly, 143 W. Va. 845, 863, 105 S.E.2d 548, 561 (1958), after quoting from the Internal Revenue Code, 26 U.S.C.A. §2002, which makes the executor of an estate primarily liable for payment of the federal estate tax, we said:
“The federal estate tax is a tax on the right to transmit property by will or under intestacy laws and is gauged by the value of the whole estate, less deductions authorized by federal statute. Kanawha Banking and Trust Company v. Alderson, 129 W.Va. 510, 40 S.E.2d 881; Central Trust Company v. James, 120 W.Va. 611, 199 S.E. 881. It is a tax on the right to transfer property but not on the right to *251receive property. Wilmington Trust Company v. Copeland, 33 Del.Ch. 399, 94 A.2d 703. The federal estate tax is a charge against the estate of the decedent and is payable out of the estate as a whole. In re Poe’s Estate, 356 Mo. 276, 201 S.W.2d 441; Rogan v. Taylor, 9 Cir., 136 F.2d 598. It is imposed upon the transfer of the entire net estate of the decedent and not upon any particular legacy, devise or distributive share, and is payable primarily by the executor of the estate before distribution. Bankers Trust Company v. Hess, 2 N.J.Super. 308, 63 A.2d 712.”
See also Guaranty National Bank v. Mitchell, 144 W. Va. 828, 111 S.E.2d 494 (1959). It is clear to me from the foregoing that once the entire federal estate tax liability can be assessed and collected against the executor as in the present case, then the entire amount can be considered as a debt under W. Va. Code, 11-11-5.
Admittedly, the legislature could, by specific enactment, apportion the federal estate deduction as between the value of the West Virginia and non-West Virginia property4 as the State of Ohio has done, Ohio Revised Code §§5731.18 to 5731.19. In fact, the majority uses the Ohio statutes as a means of finding some comparable apportionment in W. Va. Code, 11-11-5, which, to my mind, is simply incredible.
The determination made by the majority is a matter for the legislature. Until such time as a proper apportionment satute or amendment to W. Va. Code, 11-11-5, is enacted providing a specific mechanism for confining the federal estate debt to West Virginia property only, I would permit the estate to deduct the full amount of the federal estate tax.
*252Cuppett clearly illustrates that once the legislature determines that one of our decisions has created undesirable results, there is no reluctance to pass an appropriate statute. Indeed, the legislature may, in the future, answer the maj ority, making clear its intent that the entire federal estate tax be deducted from the estate since federal law makes the executor primarily liable and requires that the tax be paid out of the general assets of the estate. The simple point is that this decision to amend the tax statute is within the legislature’s prerogative, and not ours. It is impossible to read into W. Va. Code, 11-11-5, the requirement that the federal estate tax debt be apportioned between West Virginia and non-West Virginia property before it can be deducted from the State inheritance tax return.
The settled rule of statutory construction in this jurisdiction is that tax statutes are to be strictly construed and any ambiguity is to be liberally construed in favor of the taxpayer. Consolidation Coal v. Krupica, 163 W. Va. 74, 254 S.E.2d 13 (1979); Woodell v. Dailey, 65 W. Va. 160, 230 S.E.2d 466 (1977). The majority now stands this rule on its head and adds a new twist by amending the statute to favor the taxing authority. I find the result reached by the author of the majority opinion nothing short of astounding, taking into account that he claims to be ever scrupulous to the concept of judicial restraint and dedication to our prior case law. See State ex rel. Board of Education v. Rockefeller, _W. Va._, 281 S.E.2d 131 (1981) (Neely, J., dissenting).
The relevant language of W. Va. Code, 44-2-16a(2), is:
“Whenever it appears upon any settlement of accounts or in any other appropriate action or proceeding, that an executor, administrator, curator, trustee or other person acting in a fiduciary capacity, has paid an estate tax levied or assessed under the provisions of any estate tax law of the United States heretofore or hereafter enacted, upon or with respect to any property required to be included in the gross estate of a decedent under the provisions of any such law, the amount of the tax so paid *248shall be prorated among the persons interested in the estate to whom such property is or may be transferred or to whom any benefit accrues. Such apportionment shall be made in the proportion that the value of the property, interest or benefit of each such person bears to the total value of the property, interests and benefits received by all such persons interested in the estate,..
The principal purpose of apportionment statutes is to avoid the harsh results sometimes attendant upon the general rule that the burden of estate taxes, in the absence of a contrary direction, falls upon the residuary estate and usually, the natural objects of the testator’s bounty. Hale v. Leeds, 28 N.J. 277, 146 A.2d 216 (1958); Re Pepper’s Estate, 307 N.Y. 242, 120 N.E.2d 807 (1954); Guaranty National Bank v. Mitchell, 144 W. Va. 828, 111 S.E.2d 494 (1959); 68 A.L.R.3d 714, 730-34 (1976). Thus, it is said the purpose of the apportionment statutes is to require that all persons whose gifts or benefits are included in a taxable estate shall pay a share of the tax in proportion that their gifts or benefits have contributed to the tax. Re Estate of Erieg, 439 Pa. 550, 267 A.2d 841 (1970).
Nonetheless, it is often the case that the testator actually prefers those named as specific legatees over the beneficiaries named in the residuary clause or at least intends that these specific legatees take their bequests free from taxation. In In re Betts Estate, 2 Ill. App.2d 453, 458, 119 N.E.2d 801, 804 (1954), the court stated:
“Here ... the apparent intention of the testator was to give specific legacies and that costs of administration, inheritance taxes and other expenses be paid out of the residuary estate.”
See also People v. McCormick, 327 Ill. 547, 158 N.E. 861 (1927); Succession of Jones, 172 So.2d 312 (La. App. 1965); Thomas v. Fox, 348 Mass. 152, 202 N.E.2d 912 (1964); In re Crozier’s Estate, 105 N.H. 440, 201 A.2d 895 (1964).
The relevant portion of W. Va. Code, 11-11-5, is:
“The market value of property is its actual market value after deducting debts and encumbrances for which the same is liable, and to the payment of which it shall actually be subjected. In fixing such market value, allowances shall not be made for debts incurred by the decedent, or encumbrances made by him, unless such debts or encumbrances were incurred or created in good faith for an adequate consideration, nor for any debt in respect whereof there is a right to reimbursement from any other estate or person, unless such reimbursement from any other estate or person cannot be obtained.”
The reason that states can determine how much of the federal estate tax debt can be deducted on a State Inheritance Tax return is set forth in Riggs v. Del Drago, 317 U.S. 95, 87 L.Ed. 106, 63 S.Ct. 109 (1942):
“Congress did not contemplate that the Government would be interested in the distribution of the estate tax after the tax was paid, and that Congress intended that state law should determine the ultimate thrust of the tax.” 317 U.S. at 98, 87 L.Ed. at 111, 63 S.Ct. at 110-11.