I dissent.
The majority opinion sustains the order of the probate court under which the value of the interest of Louise, the succeeding life tenant, which was originally computed in the first report of the inheritance tax appraiser as of the date of the testator’s death, was recomputed in the second report after the death of William, the first life tenant, at its then assumed value so as to impose a greater tax on Louise’s interest than that authorized by the value of her interest at the date of the death of the testator. I am of the view that there is no statutory authority for such procedure, and that the order of the probate court should be reversed.
The result reached in the majority opinion is there justified on the ground that it accomplishes “reasonable symmetry” in the valuation of the several interests. However, the question here is not whether the Legislature could have provided for such revaluation of Louise’s interest upon the death of the first life tenant, but whether the Legislature has so provided. In my opinion, it has not so provided but, on the other hand, has provided directly to the contrary.
It must be remembered that an inheritance tax is not a tax upon property as such, as implied in the majority opinion, but upon the privilege of succeeding to property (24 Cal.Jur. § 395, p. 425; Estate of Miller, 184 Cal. 674, 678 [195 P. 413, 16 A.L.R. 694]; Estate of Watkinson, 191 Cal. 591, 597 [217 P. 1073]), and that ordinarily the value of that privilege is to be determined as of the date of the testator’s death. Thus the general rule with respect to the valuation as of that date (24 Cal.Jur. § 422, p. 463; Estate of Hite, 159 Cal. 392, 395 [113 P. 1072]; Riley v. Howard, 193 Cal. 522, 528 [226 P. 393]) has been carried into the statutory provisions declaring the date for valuation (Rev. & Tax. Code, §§ 13311, 13951), *836the interests which are affected (Rev. & Tax. Code, § 13952), and the method for determining the value of the particular interests here involved according to the mortality tables (Rev. & Tax. Code, § 13953).
It is thus recognized in the cited sections that whenever the law deals with the valuation of the privilege of succeeding to successive life interests, it is necessarily dealing with probabilities, and that a date must be fixed for determining the value of such successive interests based upon such probabilities. With one single exception, the general provisions all relate to valuation as of the date of the transferor’s death. (Rev. & Tax. Code, §§ 13311, 13951, 13952, supra.) That single exception covers any life tenant who may die before the tax is fixed (Rev. & Tax. Code, § 13955), in which case the “life estate is terminated by the death” and the value of the interest of such deceased life tenant may be computed with certainty. The value of the interest of any succeeding life tenant, living at the date of the fixing of the inheritance tax, is not thereby rendered certain, and as to such life tenant, it cannot be said that “certainty has taken the place of probabilities.” Any such succeeding life tenant might die shortly after the order fixing the tax had become final and the tax had been paid; and it may well be for this reason that the Legislature has made no provision for the reeomputation of value for inheritance tax purposes based upon shifting probabilities which may ultimately prove to be very inaccurate in forecasting subsequent events. But whatever the reason may have been, the Legislature has not provided for any recomputation of the value of Louise’s interest following the death of William.
The majority opinion relies strongly upon the forerunner of the above mentioned section 13955 (Stats 1935, p. 1279) and the following phrase is quoted with the indicated emphasis: “When an annuity or a life estate is terminated by the death of the annuitant or life tenant, and the tax upon such interest has not been fixed and determined, the value of said interest for the purpose of taxation under this aet shall be the amount of the annuity or income actually paid or payable to the annuitant or life tenant during the period for which such annuitant or life tenant was entitled to the annuity or was in possession of the life estate.” The emphasis should have been placed upon the words “the value of said interest,” but with or without emphasis, it is too clear to require further discussion that neither its forerunner nor the present section *83713955 was or is concerned with anything other than the valuation of the interest of a life tenant who may die before the inheritance tax may have been fixed.
While the cited statutory provisions appear to be entirely clear upon the point here involved, ;it may now be assumed solely for the purpose of this discussion that some uncertainty exists concerning their application to the facts before us. This assumption brings into play the well settled rule that “Since tax proceedings are in invitum, tax laws are strictly construed in favor of the taxpayer and against the state. . . . Strict construction in such cases is reasonable, because presumptively the Legislature has given in plain terms all the power intended to be exercised.” (24 Cal.Jur. § 11, pp. 27-28; see, also, Estate of Potter, 188 Cal. 55, 64-65 [204 P. 826]; Estate of Steehler, 195 Cal. 386, 389 [233 P. 972].) I am of the view that this salutary rule should be followed rather than repudiated, and that the majority opinion constitutes a wide departure therefrom.
reverse the probate court, with directions to tax the interest of Louise Allen Knapp according to its value as of the date of the death of the testator as determined in the first report of the inheritance tax appraiser.
Shenk, J., and Schauer, J., concurred.
Appellant’s petition for a rehearing was denied November 19, 1951. Shenk, J., Schauer, J., and Spence, J., voted for a rehearing.