dissenting in part.
I am unable to concur in so much of the opinion of the court as invalidates the tax upon the interests passing to the appellants under the deed of 1862 and reduces the amount of the tax under the will of 1891.
On September 1, 1907, the Commonwealth of Massachusetts laid a tax upon the subject of any transfer to take effect in possession or enjoyment after the death of a donor, whether the succession was brought about by will or intestacy or gift inter vivos. Acts 1907, c. 563. This court held in Coolidge v. Long, 282 U. S. 582, that as to remainders already vested, but dependent upon an estate for life, the tax so imposed is a denial of due process, though the life estate did not end until after the passage of the statute. In 1909 the legislature of the Commonwealth enacted another statute providing in substance that where the transfer becomes complete through the exercise or non-exercise of a power of appointment (cf. Saltonstall v. Saltonstall, 276 U. S. 260, 270, 271; Guaranty Trust Co. v. Blodgett, 287 U. S. 509, 511) the succession shall be deemed to have been derived from the donee of the power, if the power had its origin in a disposition of property made before September 1, 1907, and *296if made after that date, from the donor of the power. Acts 1909, c. 527, § 8: G. L. (Tercentenary Ed.) c. 65, § 2. Is the result of that amendment an unlawful discrimination when applied to the deed of 1862 and the exercise or non-exercise of the power there created?
If succession must be treated as derived from the donor, irrespective of the date when the power was created, many interests will go free that in fairness should contribute their quota to the fisc. “Whatever be the technical source of title of a grantee under a power of appointment, it cannot be denied that in reality and substance it is the execution of the power that gives to the grantee the property passing under it.” Matter of Dows, 167 N. Y. 227, 231; 60 N. E. 439; aff’d sub nom. Orr v. Gilman, 183 U. S. 278, 287; Matter of Delano, 176 N. Y. 486; 68 N. E. 871; aff’d sub nom. Chanler v. Kelsey, 205 U. S. 466, 478. This court has held that a legislature does not violate the Fourteenth Amendment by giving heed to these realities when taxing a succession. Orr v. Gilman, supra; Chanler v. Kelsey, supra. The cases that have been cited had their origin in New York. For a time the .tax laws of Massachusetts were drawn along stricter lines. Emmons v. Shaw, 171 Mass. 410, 413; 50 N. E. 1033. Until the Act of 1909, a transfer through a power, if made under an instrument effective before September, 1907, escaped taxation altogether, though the gift in substance and reality may have had its origin thereafter. Acts 1907, c. 563, § 25; cf. Saltonstall v. Saltonstall, supra; also Saltonstall v. Saltonstall, 256 Mass. 519, 522, 525; 153 N. E. 4. This was unfair to the Commonwealth. It was perhaps unfair to legatees who were taxable under gifts of later date. But the evil, however patent, was not subject to correction through the medium of a uniform rule taxing the succession under every power of appointment exercised thereafter, and taxing it as derived from the primary donor. Such a method of assessment would be adequate • in its application to instruments to be executed in the *297future, but quite inadequate as to instruments executed in the past. There was need for a distinction based on difference in time.
One may take for illustration a will made in 1914, seven years after the Act of 1907, and another made in 1900, seven years before. Each, let it be assumed, provides for a life estate, with power to the life tenant to appoint the remainder, and with a gift over to children in default of an appointment. The life tenants die in 1921. If an assessment is made upon the right of succession under the will of later date, there will be no difficulty in collecting the tax, economically and swiftly, out of the estate of the donor. The power having been created after 1907, the executors will be under a duty to retain so much of the estate as may be necessary to pay the tax in full. But in respect of the 1900 will, the situation is very different. The probability is that before the adoption of the statute the executors under that instrument will have been given their discharge. In that' event the probate court will no longer have control of the estate, and the Commonwealth will be left to a precarious remedy against remaindermen deriving their possession through the non-exercise of the power, if perchance the failure to exercise it becomes known at all. Estates of subsequent donors will thus be made to bear the burden while those of earlier donors are left substantially immune. The amendment of 1909 corrects that inequality. Has it substituted another to be condemned as more offensive?
The rule is elementary that a state in adopting a system of taxation is not confined to a formula of rigid uniformity. Swiss Oil Co. v. Shanks, 273 U. S. 407, 413. It may tax some kinds of property at one rate, and others at another, and exempt others altogether. Bell’s Gap R. Co. v. Pennsylvania, 134 U. S. 232; Stebbins v. Riley, 268 U. S. 137, 142; Ohio Oil Co. v. Conway, 281 U. S. 146, 150. It may lay an excise on the operations of a *298particular kind of business, and exempt some other kind of business closely akin thereto. Quong Wing v. Kirkendoll, 223 U. S. 59, 62; American Sugar Refining Co. v. Louisiana, 179 U. S. 89, 94; Armour Packing Co. v. Lacy, 200 U. S. 226, 235; Brown-Forman Co. v. Kentucky, 217 U. S. 563, 573; Heisler v. Thomas Colliery Co., 260 U. S. 245, 255; State Board of Tax Comm’rs v. Jackson, 283 U. S. 527, 537, 538. What is true of division into classes according to subject matter must be true of division into classes dependent upon time. The temporal arrangement must have its origin, to be sure, in something more than whim or fantasy, a tyrannical exhibition of arbitrary power. If that reproach has been avoided, the classification does not fail because the burdens before and after are not always and everywhere in perfect equilibrium.
From all this it follows that a distinction between wills or deeds effective before 1907 and those effective after-wards — the exercise or non-exercise of powers under instruments of the first class giving rise to a succession to be taxed as a bequest from the donee, and the exercise or non-exercise of powers under instruments of the second class to be taxed as a bequest from the donor — is not rooted in caprice. The point of time which separates the classes is not interjected arbitrarily or by an exertion of brute force, but corresponds to the behests of a rational taxonomy. This being so, the division ought not to fail because the deed of 1862 was framed in such a way that succession thereunder would not have been taxable to any one, either the estate of the donor or that of the donee, if a like deed had been executed after the passage of the statute. A legislature cannot be expected in drafting legislation to think out every conceivable situation in which the members of one class will bear a heavier burden than the members of another. Under the statute challenged as invalid many deeds inter vivos continue to be taxable irrespective of their date. An interest in re*299mainder to take effect in possession or enjoyment through the exercise or non-exercise of a power of appointment after the death of the donor (Guaranty Trust Co. v. Blodgett, supra) will gain nothing from the fact that a non-testamentary conveyance brought the power into being. The only reason why this particular interest would be exempt if the deed of 1862 had been made after August, 1907, is because the remainder was so limited that the power might be exercised while the donor was yet alive. Such untoward accidents do not take a method of division out of the domain of the rational into the land of whim and fantasy. Eccentricities of incidence are common, and perhaps inevitable, in every system of taxation. The future would have to be scanned with microscopical powers of vision to foresee and forestall every possible diversity. For present purposes it is enough that the order of events removes the stigma of caprice from a system of classification whereby donees of a power before the passage of the act are treated as grantors, the tax to be laid upon that basis, whereas donors of a power are recognized as the source of the succession in respect of transfers afterwards. Emmons v. Shaw, supra. “And inequalities that result not from hostile discrimination, but occasionally and incidentally in the application of a system that is not arbitrary in its classification, are not sufficient to defeat the law.” Maxwell v. Bugbee, 250 U. S. 525, 543. Cf. Metropolis Theatre Co. v. Chicago, 228 U. S. 61, 69, 70; Salomon v. State Tax Comm’n, 278 U. S. 484, 491.
What has been said as to the deed of 1862 and the power there created applies with equal force to the will of 1891 and to the quantum of the tax payable by the legatees thereunder.
For these reasons I dissent from the modification of the decree and vote to affirm it.
Mr. Justice Brandéis joins in this opinion.