The judgment imposing a transfer tax on the beneficial interests of testator’s children and grandchild is assailed upon the ground of the invalidity of ch. 44, Laws of 1903, as amended by ch. 249, Laws of 1903, in that this law is an unjust and unreasonable exercise of the taxing power, and in that it violates limitations of the state and federal constitutions.
The constitutionality of this law was considered and upheld in the cases of Nunnemacher v. State, 129 Wis. 190, 108 N. W. 627, and Beals v. State, ante, p. 544, 121 N. W. 347. In these cases it was decided that the act was a proper exercise of the taxing power of the state; that the tax was a valid one; that it is one in the nature of an excise tax, imposed on the transfer of property by will, the intestate law of the state, or “by deed, grant, bargain, sale or gift, made in contemplation of the death of the grantor, vendor or donor, or intended to take effect in possession or enjoyment at or after such death;” that it was not a tax on property within the meaning of see. 1, art. VIII, of the state constitution; and that the law is not violative of the constitutional guaranties of the equal protection and the uniformity in operation of the laws. The necessity for further consideration and discussion of these questions does not arise on this appeal. So far as they are involved, we shall here regard them as ruled and determined in those cases and shall consider that no further comment or discussion is required.
The appellant urges that the law is invalid upon additional grounds, namely, that it attempts to impose a tax on transfers limited to vest on contingencies which may never happen or to persons not in being or ascertainable, in making the tax due and payable forthwith out of the property transferred, by compelling parties to pay such tax on defeasible estates which they may never own, and in contemplating the payment of penalties before any opportunity is afforded to pay *584the tax. The provisions of the law thus assailed will be considered so far as the facts and circumstances of the transfers involved in this estate require.
The object and purpose of the law being to impose a tax on the transfer of the property of testators, intestates, grantors, bargainors, or vendors who transfer property in contemplation of death or by a transfer intended to take effect in possession or enjoyment at or after such death, directs all consideration of it to the right of the state to impose this burden on the transfer by which decedent’s property devolves on those who take it under such transfers. The right of the state to exercise this power by the imposition of direct taxes on property is therefore excluded from consideration, since the tax is in no sense a direct tax on property, but is an excise tax imposed on the transfer. See Nunnemacher and Beals Cases and State v. Railway Cos. 128 Wis. 449, 108 N. W. 594. The provisions of the law are in substance those of the New York transfer tax act; hence, so far as applicable, the decisions of the courts of that state construing the law are to be resorted to for aid in construing the one in question. In Matter of Westurn, 152 N. Y. 93, 102, 46 N. E. 317, in speaking of the right of the state to impose such a tax, it is said:
“The devolution of the property and the right of the state have their origin at the same moment of time. The ascertainment of the value of the taxable interest and the fixing of the tax necessarily takes place subsequent to the death. But the guide is the value at the time of the death, when the interests were acquired.”
The provisions of ch. 44, Laws of 1903, in words are expressive of the intent that the tax shall be imposed at the time of the death of the transferor, in the manner and under the conditions prescribed, upon the interests transferred by him. Sec. 1 specifically contemplates that the tax shall be imposed on the transfer of a decedent’s property under a will, *585intestate law, or upon a grant or gift made in contemplation of death, and subd. 4 of this section declares that the tax shall be imposed when persons or corporations become beneficially-entitled in possession or .expectancy to the property or the income thereof. By subd. 6 it is enacted that the tax at the prescribed rates shall be upon the clear market value of the property transferred, exclusive of the exemption. The context of the law expresses as its purpose and object that the tax shall be imposed on the transfer at the time of the death of the decedent and rest as a lien on the property so transferred until paid.
The question as to when the tax so imposed becomes due and payable is presented under various claims and upon different considerations. Sec. 5 declares: “All taxes imposed by this act shall be due and payable at the time of the transfer,” except as otherwise provided. It is also provided that in cases where the fair market value of estates, property, or interests therein are limited, conditioned, dependent, or determinable upon the happening of any contingency or future event and cannot by reason thereof be ascertained at the time of transfer, the tax shall become due and payable when the beneficiary shall come into the actual possession and enjoyment thereof. This portion of the law does not operate to postpone the imposition of the tax on the transfer beyond the time of the death of the transferor, for, as we have seen, the tax comes into existence at the time of the death of the decedent and remains a lien on the property involved until paid; but, since the fair market value thereof is not then ascertainable, it operates to postpone payment to the time when it is ascertainable, namely, when the contingency happens which gives the beneficiary the actual possession or enjoyment of the property transferred. Aside from this exception, all taxes are due and payable at the time of the transfer and then accrue. An examination of the provisions of the law fixing the time when the tax is declared due and payable and when it *586accrues shows that these terms were used as equivalent, and that it was intended to prescribe that the tax accrues at the time of transfer, excepting as to those estates which are so-limited, conditioned, dependent, or determinable upon future contingencies that their value cannot be ascertained. As to them the tax becomes due and payable and accrues at the time of the actual possession or enjoyment. In this case, then, the tax, at the moment of the death of Frederick Pabst, was im- > posed by operation of law on the taxable transfers and became a lien on the property so transferred, and the lien persists until the taxes shall be paid.
The provision made for a discount if the tax be paid within one year from its accruing, the charging of interest on-payments deferred beyond eighteen months from the date-when the tax accrues, and the proceedings to be taken to appraise the property after the transfer are attacked as discriminatory and impossible of performance in the usual course of' the administration of a decedent’s property. It is provided that any interested party may apply for an appraisal, which shall be made “immediately upon the transfer or as soon thereafter as practicable.” Ample provision is therefore made for parties to complete an appraisal and to have the assessment and determination of the amount of the tax fixed within the-time allowed for payment and thus avoid the penalties pre-' scribed.
We find no merit in the claim that the law imposes a tax on transfers limited to vest on contingencies which may never happen, to persons not in being or ascertainable, or on transfers of defeasible estates which, may never go to the parties who are taxed. True, the tax is imposed on every transfer defined by sec. 24 of the act, namely, “the passing of property or any interest therein, in possession or enjoyment, present or future, by inheritance, descent, devise, succession, bequest, grant, deed, bargain, sale, gift or appointment in the manner herein prescribed.” As above stated, the tax is imposed at *587the time of the devolution of the property, which is at the-time of the transferor’s death; but the law does not operate to enforce assessment and payment of the tax on interests or-estates not vested or on those whose value cannot be ascertained by reason of the, uncertainties of contingencies. Payment of the tax on such transfer^ is expressly postponed until the beneficiary comes into the actual possession or enjoyment thereof. The claim that the present owners of defeasible estates are compelled to pay the tax on the whole transfer, and that this operates to unjustly tax them, is not well founded,, because provision for reimbursing them is made should it. happen that such estates and interests should “be abridged, defeated or diminished.” Subd. 3, sec. 13. Nor is such-payment in the nature of an advancement by the first beneficiary. Of course the tax does not accrue unless the party becomes beneficially entitled in possession or expectancy to-the property or the income thereof under the transfer. When the transfer confers the benefit of the estate, property, or income, then the beneficiary pays for what he is enjoying until the happening of a contingency deprives him thereof. In such event restitution is made out of the corpus of the estate- or property. This operates to impose the tax only on the-interest so actually received and enjoyed, and when an estate is terminated the tax is imposed on the party then receiving the property. Subd. 3 of sec. 13 makes provision for such a refund of overpayments to be enforced in the manner provided in sec. 8 of the act.
It is contended that the court erred in holding that the children of the decedent became beneficially entitled in possession or expectancy to any property or the income thereof under the-will ftnd the deed of gift of which the fair market value could, be ascertained at the time of the death of the testator and donor. The claim that the widow’s option to take one-sixth of the decedent’s entire estate in lieu of the $50,000 per annum to be paid to her during her life out of the income of' *588the estate postponed the time of the accruing of the tax cannot be acceded to. It in no way affected the transfers actually made to the children under the will and the deed of gift. Under the conditions of the transfer the children became beneficially entitled to the property and the income ■thereof, subject to the annual payments to the widow for her life and the cost of Elspeth’s education and maintenance during the widow’s life until Elspeth’s twenty-first year. There is nothing in these conditions which postpones their right to the property or the income thereof from the time of the decedent’s death. Nor is their right thereto limited, conditioned, dependent, or determinable by a contingency, by reason of which the fair market value of their interests could not then be ascertained. The law provides a means of calculating the value of the interest of the widow and of Elspeth, and hence the fair market value of the remainder of the estate and the other interests was ascertainable.
It is further urged that Emma Soehnlein’s interest and estate in the property transferred are not ascertainable in view of the conditions attached to the transfer. We do not so regard them. It is provided that if she should have no issue ■of the age of ten years living at the time of the widow’s death, then the interest and estate transferred to her should remain in trust, and only the income thereof should be paid to her until she should have a child of the age of ten years. If no •child of hers shall attain this age, then she is to receive during life only the income of the share of the estate set aside for her, ■and the body of this share is to go to her children surviving her or to the issue of any deceased child or children. If no child or the issue of any deceased child or children survives her, then her share is to go to the other heirs of the testator in equal parts. We have then a transfer in trust for her benefit, upon the condition that she shall receive only the income thereof during her life, unless she shall have a child which shall attain the age of ten years. The conditions of *589this transfer are governed by the provisions of subd. 5 of sec. 13, because her rights, interest, and estate in the property so-transferred in trust are dependent upon contingencies or conditions which may extend and change her interest and estate from a life estate to one in fee in the property so transferred to her. The act [Laws of 1903, ch. 44, see. 13, subd. 5, as amended by Laws of 1903, ch. 249, sec. 2] provides that such a transfer shall be taxed at the lowest possible rate under the conditions on which it passes at the time of transfer, and that the tax shall be due and payable forthwith out of the property so transferred. In this case the rate imposed on this share, under the conditions existing at the time of decedent’s death, was the same as the rate which would be imposed on this share if her brothers and sisters should eventually become entitled thereto under the conditions of the will and deed, being the rate prescribed for lineal issue by subd. 1, sec. 2. It therefore follows that the trial court imposed the proper tax on the transfer to Emma Boehrilein, that it accrued at decedent’s death, and was payable as that of the other children. In the event that she shall enjoy no more than a life interest, she will be entitled to be reimbursed, in the manner above indicated, out of the corpus of the share so transferred to her.
/ It is contended that the court erred in holding that the deed of gift was a transfer in contemplation of death by the donor. The statute imposes a tax upon the transfer of property by deed or gift, “made in contemplation of the death of the grantor, vendor or donor, or intended to take effect in possession or enjoyment at or after such death.”. Subd. 3, sec. 1. The meaning of the words “in contemplation of death,” as-used in the statute, must be inferred and ascertained from the context of the act and the object sought to be accomplished by the law. It is manifest that they were intended to cover transfers of parties who were prompted to make them by reason of the expectation of death, and which, in view of that event, accomplish transfers of the property of decedents in the-*590nature of a testamentary disposition. It is therefore obvious that they are not used as referring to that expectation of death generally entertained by every person. The words are evidently intended to refer to an expectation of death which •arises from such a bodily or mental condition as prompts persons to dispose of their property and bestow it on those whom they regard as entitled to their bounty. This accords with the general objects and purposes of the law, namely, the imposition of a tax on the devolution of property involved in the ■demise of the owner. The supreme court of Illinois in Rosenthal v. People, 211 Ill. 306, 309, 71 N. E. 1123, interpreted these words in such a tax law as follows:
“A gift is made in contemplation of an event when it is made in expectation of that event and having it in view, and ■a gift made when the donor is looking forward to his death as impending, and in view of that event, is within the language •of the statute.”
The claim that the words can include only gifts causa mortis attributes to them too restricted a meaning. A transfer valid as a gift inter vivos, if made under circumstances which impress it with the distinguishing characteristics of being prompted by an apprehension of impending death, occasioned by a bodily or mental state which has a basis for the apprehension that death is imminent, would be a transfer made in •contemplation of death within the meaning of the law.
In the case of Estate of Merrifleld v. People, 212 Ill. 400, 405, 72 N. E. 447, in speaking on this subject, the court says:
“It is said, however, by appellants that a transfer of property made without consideration, in contemplation of death, is a gift causa mortis, and that the stipulation is that the gift was absolute. Hence it could not be a gift causa mortis, as a •gift causa mortis is conditioned upon the death of the donor. A gift causa mortis, strictly speaking, applies only to personal property, and the gift is defeated if the donor recovers. In this case the subject matter of the transfers was both real and personal property and the transfers were absolute, and not *591upon the condition that they should be revocable in case of the recovery of the donor. They were, however, made in con'templation of his death. They fall, therefore, more nearly within the description gifts inter vivos made in contemplation •of death than within the designation gifts causa mortis In re Estate of Benton, 231 Ill. 366, 84 N. E. 1026.
Though there is some divergence of view in the earlier cases in New York in their interpretation of these words, the view expressed in the Illinois cases was adopted in the recent decision of Matter of Palmer, 117 App. Div. 360, 102 N. Y. Supp. 236, as the proper one under the law as it then stood, which is substantially the same as the law of this state.
The statute was not intended to restrict persons in their right to transfer property in all legitimate ways, but it clearly manifests a purpose to tax all transfers which are accomplished by will, the intestate laws, and those made prior to death which can be classed as similar in nature and effect, because they accomplish a transfer of property under circumstances which impress on it the characteristics of a devolution made at the time of the donor’s death. It is strenuously contended that the trial court’s finding of fact that the deceased’s execution of the deed of trust, transferring the brewing company’s stock to his four children, was made in contemplation of death within this law, is not sustained by the evidence. The evidence on this issue is volmninous and so far as necessary has been incorporated in the statement of the case.
It is urged that the trial court was misled in its conclusion •of fact on this issue through the error of receiving the death certificate in evidence. The claim is that the statute prohibiting decedent’s attending physician from testifying to any fact concerning decedent’s condition of which he had ac•quired knowledge in his professional capacity, and which it was necessary for him as a physician to know in order to properly prescribe for him, is a ground for the exclusion of the certificate as-evidence. We discover no force in this *592claim. Physicians are required by secs. 1024 and 1024a,. Stats. (1898), to make the death certificate. This is made a-, public record. Its contents are published to the world and are no longer treated as privileged. Was the certificate-properly received as evidence of its contents? Sec. 4160, Stats. (1898), provides that when the records specified in the section are produced by the proper custodian and are supported by the oath of the person in lawful charge thereof that the record is what it purports to be and is genuine, it “may be-admitted as prima facie evidence” of its material contents. The amendment of 1898 to the section contemplates that the-records of a physician, which are included in the section, should be received as evidence. We are of opinion that the-death certificate is included in this section and was properly admitted as prima facie evidence of the material facts stated therein. In the case of Rohloff v. Aid Asso. 130 Wis. 61, 109 N. W. 989, a ruling excluding as original evidence a certificate of death, made by a health officer was upheld. This-ruling was evidently upon the ground that the amendment does not include the records of health officers.
The evidentiary facts relied on to show decedent’s physical condition at the time of making the deed of gift and the will are in many respects uncontroverted. It is without dispute-that he had had diabetes for many years, that he was fully informed of the state of his health during the period of his affliction, that he made a number of trips to parts of this and' to foreign countries to build up his health, and that he received constant treatment from his physician to retard the-progress of the disease. In the early part of the year 1903 his strength and health had become so impaired that his physicians advised him to pass the winter and the ensuing spring, season in California. While upon this trip he had serious attacks of illness, one of which seriously imperiled his life. After his return to Milwaukee and during the early summer of 1903 he was under constant treatment, but showed signs of' *593declining vitality to such a degree that consultations of physicians were held concerning his condition. No evidence indicative of improvement was then discovered, and complications became manifest during the summer and autumn of 1903. True, there is conflict in the evidence of the experts called into the ease and in the evidence of his physicians, the members of his family, and of others who observed him throughout his illness; but an attentive reading and examination of the evidence persuades us that the decedent, by reason of his apprehension of impending death, was led to make the deed of gift to transfer part of his estate to those whom he desired should have and enjoy it after his death.
Much stress is laid on decedent’s declaration in the year 1900, while he was abroad for recuperation and rest, that in recognition of the valuable aid of his sons in building up his estate he intended, upon his return home, to dispose of part of his estate to his children. It is significant that he did not then do so or in the immediately succeeding years. He took no such steps until he had undergone the serious illness of 1903, which naturally admonished him of his rapid decline in strength and health. Considering his condition, the execution of the deed of gift and the will simultaneously indicates that he was disposing of his property to those whom he regarded as the natural objects of his bounty, rather than that he was transferring it to them as compensation for worthy and valuable services rendered by them in its accumulation. He knew his condition and was aware of the outcome to be inferred from his symptoms. After his return to Milwaukee he conferred with his attorneys and made the deed of gift and his will. These instruments were made and executed at the same time as one transaction. The evidence, in our opinion, abundantly sustains the trial court’s conclusion that the deed of gift was made in contemplation of death. /
The court’s finding as to the value of the stock? in the brewing company is excepted to as erroneous. The court found *594tbe value of tbe brewing company’s stock on January 1, 1904, the date of the decedent’s death, to be $1,150 per share. The appraisers appointed by the county court reported the same value in January, 1905. The county court upon the trial valued it at $1,408.45 per share on January 1, 1904. The face value is $1,000 per share. The law requires that the tax shall be assessed on the clear market value of. the property. It appears that there had been no general sales of this stock in the market. On the various occasions when he secured stock for the corporation or when there were dealings between members of the family, the decedent had dealt with this stock on the basis of its book value. The transfers shown were apparently made in reliance on the book value. The evidence adduced showed the dividends declared and paid for the years from 1896 to 1904, inclusive, and the value of the corporation’s assets from 1896 to 1906, inclusive, exclusive of the good will of the business. In the deed of gift decedent declared the book value of 2,840 shares of stock to be $4,000,000. These items of evidence were offered as the best proof attainable to show the value of the stock. They were evidences of value, though they were not direct and general tests of market value. Many and various reasons are assigned why the evidence adduced on stock value fails to sustain the court’s finding as to the value of the stock. These contentions are based on the claims that the dividends have been small, that the brewing plant has no convenient shipping facilities, that the stock transfers and the value of the corporation’s assets, as carried on the books, are not reliable criteria, because they represent no more than the decedent’s estimate of his business, and because there are no proper and necessary deductions for depreciation, losses, decrease in business, and other causes incident to the conduct and operation of so large and extensive an enterprise and its holdings. Special probative force is claimed for the opinion evidence of values adduced by appellants as tending to show that the *595stock is worth less than its face value. After giving full effect to these considerations, we cannot say that the court erred by overestimating the actual value of the stock. The facts and circumstances regarding the business of the corporation and its properties, the progress, growth, and general financial results, furnish a basis for valuation. These evidences of the value of the stock are sufficient to sustain the conclusion of the trial court, and the findings of facts on this branch of the case must stand.
The court imposed a penalty of ten per cent, per annum from January 1, 190J, to March 1, 1907, upon the amount of tax found due from the appellants. See. 6 of the act provides :
“If such tax is not paid within eighteen months from the ■accruing thereof, interest shall be charged and collected thereon at the rate of ten per centum per annum from the time the tax accrued,- unless by reason of claims made upon the estate, necessary litigation or other unavoidable cause of delay, such tax shall not be determined and paid as herein provided, in which case interest at the rate of six per centum per annum shall be charged upon such tax from the accrual ■thereof until the cause of such delay is removed, after which ten per centum shall be charged.”
The question arises: Do the facts and circumstances of this case show that, by reason of “necessary litigation or other unavoidable delay,” the tax cannot be deemed to have been determined and to have accrued? The record discloses that on December 31, 190-4, the executors and trustees paid $58,711.72 to the state as the tax due on the transfer of property under the will, subject to the right to recover the same if the law should be declared invalid. This payment included no tax on the transfer made by the deed of gift and omitted items of property. The omitted items were added by way of a supplemental inventory, by agreement of all the parties to this litigation, and thereafter additional amounts, .as finally determined and assessed, were paid to apply in dis*596charge of the tax upon the transfer by which the decedent’s property passed to his heirs. In view of the nature and conditions of the transfer and the consequent difficulty of ascertaining the value of the property, the estates, and the interests transferred, the devolution of decedent’s property obviously presented to the executors, trustees, and his heirs doubtful and perplexing questions as to their liability for the transfer tax and the amount thereof. It is clear from an examination of the case that uncertainty existed as to when the tax was due and payable and when it accrued, as to whether or not the transfer by the deed of gift was subject to taxation, as to the amount of stock included in the provision for Elspeth, as to the value of the stock of the brewing company, and as to other matters which will finally be determined by this litigation. We have no doubt that the situation and condition of affairs accounts for the delays by the executors, trustees, and the heirs of the decedent in beginning the administration and settlement of the estate and in paying the full amount of the transfer tax, and that they did not intend to defraud the state of any part of the tax justly due. We are also of opinion that this litigation is necessary within the contemplation of the inheritance tax law to determine upon the tax, and that the uncertainties incident thereto necessarily occasioned unavoidable delays in the ascertainment and assessment of the tax. Upon these considerations the penalty of ten per cent, per annum should not have been imposed upon the appellants on the amounts found due from them from January 1, 1904, to March 1, 1907. Under the provisions of sec. 6 of the act, the tax on the transfer under the deed of gift and the will accrued at the time of the decedent’s death, but the interest charge of ten per cent, per annum had not become due under the facts and circumstances shown in this case.
The result of these considerations is that the trial court’s findings and conclusions are approved in all matters except as to the imposition of the ten per cent, interest charge on the amounts found due from the appellants. The error com*597mitted in rendering a judgment including sucb interest requires reversal of tbe judgment. The cause must be remanded to the trial court for judgment on the findings as approved by this court. All the findings of the circuit court are approved on this appeal except the one finding ten per cent, interest due from January 1, 1901, to March 1, 1907.
By the Oourt. — Judgment reversed, and the cause remanded to the trial court for judgment on the findings as made by the trial court and approved by this court in accordance with this opinion.
Timlin, J., dissents.