Dissenting Opinion
by Mr. Justice Eagen :I dissent.
This appeal was originally argued before six members of this Court on April 23, 1969. After careful consideration of the issues involved, the Court found itself equally divided and subsequently entered an order affirming the decree of the court below. The late Mr. Justice Cohen filed an opinion in support of the order of affirmance.1 The appeal was later directed to be reargued and Mr. Justice Roberts has now filed an opinion reversing the decree of the court below.
Together with Mr. Justice O’Brien, I joined in Mr. Justice Cohen’s opinion and nothing has happened since to persuade me to change my position. I take the privilege of now adopting Mr. Justice Cohen’s opinion, Avhich, in my Anew, is a correct disposition of the case.
*25“This case involves an appeal by the surviving trustees of a testamentary trust, appellants, from a supplemental Resident Inheritance Tax Appraisement made by the Commonwealth which denied the charitable exemption claimed by appellants. The proceedings were commenced in the Court of Common Pleas of Lawrence County, Orphans’ Court Division, by the filing of a Petition of Appeal from Inheritance Tax Appraisement and Assessment on May 5, 1967. The parties filed a Stipulation of Facts, and on July 11, 1969, the court below dismissed the appeal.
“The facts are as follows: Frank E. Moore (Frank) died testate on February 6, 1954, a resident of Ellwood City, Lawrence County. By his will he left his residuary estate to Edith Moore, Thomas Johnson and Lawrence Savings and Trust Company, as trustees, and directed them to divide the trust estate into two parts, designated Part I—Trust for Edith Brown Moore, and Part 2—Frank E. Moore Trust Estate. The present appeal concerns only the trust of Part I where the trustees were directed to pay the net income to the decedent’s wife, Edith Brown Moore (Edith) for her lifetime and on her death to distribute the principal to such parties, including her estate, as she might appoint by her last will.
“Edith died on December 24, 1965, and by her will exercised her power of appointment by appointing the principal to Lawrence Savings and Trust Company to be held in trust for the benefit of The First Presbyterian Church of Ellwood City, Pennsylvania (now Christ Church United Presbyterian) and the Ellwood City Hospital—the trust to be perpetual unless the principal is needed for a capital program.
“Appellants notified the Commonwealth of Edith’s death and filed with the Register of Wills, as agent for the Commonwealth, schedules showing the assets held in *26the Part 1 and Part 2 trusts on the date of Edith’s death together with a claim for charitable exemption from inheritance tax on the entire Part 1 trust. The Commonwealth denied the claims for charitable exemption, and the inheritance tax was recomputed at 2% on the life estates and 15% on the remainder interests resulting in a total tax of $294,150.87.
“The sole issue in this case is whether property which passes to charity pursuant to the exercise of a general testamentary power of appointment which is created by the will of the donor is subject to inheritance tax in the estate of the donor under the tax statute in effect at the time of his death or whether such property is relieved from the tax by virtue of an amendment to the statute exempting transfers to charity from the tax where the exemption takes effect after the creation of the power by the donor but before the exercise of the power by the donee. The parties agree that the applicable tax statute is the Transfer Inheritance Act of 1919, P. L. 521, §l(d), as amended, 72 P.S. §2301 (d), which in relevant part states: ‘A tax shall be, and is hereby imposed upon the transfer of any property, real or personal, or of any interest therein or income therefrom in trust or otherwise, to persons or corporations in the following cases: ‘ (d) When any person or corporation comes into the possession or enjoyment by a transfer from a resident ... of any property transferred pursuant to a power of appointment contained in any instrument taking effect after the passage of this act .... Provided, That property transferred pursuant to powers of appointment shall, in all cases where the power is hereafter exercised, be taxed as of the estate of the donor, notwithstanding any blending of such property of the donee.’ Section 45, 72 P.S. §2461, stated: ‘The word “transfer” as used in this act shall be taken to include the passing of property, or any *27interest therein, in possession or enjoyment, present or future, by distribution, by statute, descent, devise bequest, grant deed, bargain, sale or gift.’ Also relevant is the Act of May 28, 1956, P. L. (1955) 1757, §1, as amended 1957, July 11, P. L. 821, §1, 72 P.S. §2301.1, which states: ‘No transfer inheritance tax shall be imposed upon the transfer of any property ... to persons, corporations and organizations where the transfer is by will ... (a) to or for the use of any corporation, unincorporated association, or society, organized and operated, exclusively, for religious, charitable, scientific, literary or educational purposes____’
“Appellants concede that for inheritance tax purposes the donor of the power of appointment is regarded as the transferor, that the time of enjoyment is not controlling, and that the charitable exemption act is prospective and does not apply to transfers that were completed by vesting in the transferee prior to June 1, 1957. Tracy Estate, 403 Pa. 373, 170 A. 2d 93 (1961). Their argument is that this charitable gift did not vest until Edith’s exercise of the power of appointment in her will (1965), that there was not a ‘transfer to’ (the statute’s wording) the appointees until 1965 and that the time of the exercise of the power does not relate back to the date of Frank’s death.
“Firmly embedded in Pennsylvania law is the concept of relation-back as it pertains to powers of appointment. Barton Trust, 348 Pa. 279, 35 A. 2d 266 (1944); Huddy’s Estate, 236 Pa. 276, 84 Atl. 909 (1912); Commonwealth v. William’s Executors, 13 Pa. 29 (1850). ‘As variously expressed, the essence of the doctrine is that the exercise of a power of appointment relates back to the instrument creating the power, that the person to whom an appointment is made is “in by the donor” [the person creating the power] and takes his title from him as though the creation of the power *28and the exercise of it were effected by the same instrument. Thus, where A devises property to B for life, remainder as B shall appoint, B’s power is considered, in substance, as an authority to fill in a blank in A’s will; and when B exercises the power in favor of C, C is considered as receiving the property by transfer from A, not from B.’ 5 American Law of Property §23.3 at 465-6 (Callahan and Leach 1952).2 Appellants concede the existence of this doctrine but say that it does not prevent them from gaining the charitable exemption because ‘[a] 11 the relation-back doctrine requires is that the transfer of title be regarded as made by the donor of the power .... Where the question concerns when the transfer takes place, however, the actualities of the case are honored.’ Here, the question when the transfer took place is all important for, as mentioned above, the charitable exemption statute operates prospectively only.
“This is the first opportunity we have had to face this particular question.3 By its terms the statute imposes a tax on ‘transfers to’ persons, or corporations, but neither it nor the cases which have defined transfer, Tracy Estate, supra at 378, Mayer’s Estate, 330 Pa. 39, 198 Atl. 439 (1938), are helpful in answering the question whether transfer is deemed to occur at the *29moment of the exercise of the power of appointment or is related back and deemed to occur at the moment the donor died.
“The relation-back doctrine has been used, however, in the situation in which there has been an increase in the tax rates between the time of the donor’s death and the donee’s exercise of the power so as to make the donor’s estate taxed at the rate applicable at the donor’s death. In Morris’ Estate, 42 Pa. D. & C. 522 (O.C. Montg. 1941) the decedent-donor who died in 1893 gave a life interest in a trust created by her will with a general testamentary power to appoint the remainder to a granddaughter who died in 1940 leaving a will by which she exercised the power in favor of the Smithsonian Institution of Washington, D.O. The court held that the appointed property was taxable in the estate of the donor at the rate of 5% applicable to collaterals under the Act of 1887, P. L. 79 (the rate in effect at the donor’s death) and not at the 10% rate applicable to collaterals at the date of the donee’s death. See, also, Fry Estate, 41 Pa. D. & C. 2d 187, 192 (O.C. Phila. 1966) ; Hess’s Estate, 11 Pa. D. & C. 311 (O.C. Phila. 1928); Parke’s Estate, 13 Pa. Dist. Rep. 196 (O.C. Phila. 1904) ; Grossman & Smith, Pennsylvania Inheritance and Estate Tax, §408-1 (1961) ; Restatement, Property §333, Illus. 1, Exam. 1 at 1876 (1940).
“Appellant seeks to distinguish these cases on the ground that ‘although the transfer was not completed before the act was passed, it was certainly initiated before that time and, in any event, was a transfer by the donor of the power . . . .’ If initiation is the key factor, however, certainly Frank did as much initiating as the donor in any of the above cases. Those cases stand not only for the proposition that the appointive property passes from the donor and is taxed in his estate but also for the proposition that the transfer is *30deemed to have taken place at the time of the donor’s death for if it were otherwise there would he no need to apply the rates applicable as of the date of the donor’s death.
“There can be no question that if the legislature had never passed the charitable exemption act of 1956 the gift the church and the hospital are to receive as a result of the exercise of the power of appointment Avould be subject to transfer inheritance tax at the rate of 15%. Although that act is an exemption statute, it is similar to a change-of-rate statute for in effect it lowers the rate on gifts to charities from 15% to 0%. Therefore, we are here faced with a similar situation as in the cases cited above with the exception that in them the rates were raised instead of lowered in the interval between the donor’s death and the donee’s exercise of the power. Certainly it would not be reasonable to have the relation-back doctrine apply when the rate goes up and not have it apply when the rate goes doAvn.
“Appellants argue that the case cited as the foundation of the relation-back principle, Marlborough v. Godolphin, 2 Ves. Sen. 61, 28 English Reprints 41 (1750), specifically refused to relate back the time of the exercise of the poAver to the date of the donor’s death. That case, however, raised the issue whether a gift lapsed where the donee of the power designated an appointee Avho survived the donor but predeceased the donee, and ‘If the appointee under a power to appoint by Avill dies before the donee of the power, the decisions are uniform to the effect that he cannot take under the power .... If courts folloAved consistently the doctrine that the exercise of the poAver is read- back into the instrument creating the power, the result would be otherwise. Rut it seems reasonable to suppose that a donor who did not permit the donee to make an effective ap*31pointment until the donee’s death intended the donee to make an appointment only to persons who survived him.’ gimes & Smith, The Law of Future Interests §917 (2d ed. 1956). Therefore this lapse situation is a special one and distinguishable from the problem we now face.
“Consistency in the imposition of tax requires that the time of the transfer (i.e., the exercise of the power) be considered as the date of the donor’s death. This has been done in the rate-change cases cited above, and we believe that this is essentially like a rate-change case. Therefore the charitable exemption statute is not applicable to property appointed after the effective date of the act under a power of appointment created prior to the effective date of the act.
“Our decision in this matter and the clarification of the law will undoubtedly obviate some appeals since the converse of this issue will occur in view of the fact that by the Act of December 29, 1967, P. L. 915, §1, 72 P.S. §2185-403, Class A rates have been increased from 2% to 6%. These appeals would be as to decedents dying between January 1, 1962 and December 28, 1967 who created powers of appointment which were exercised in favor of Class A transferrees on or after December 29, 1967.4 Unless we are prepared to abandon our consistent approach, the tax on the donor’s estate created would be at the rates in existence at the time of the creation of the power.”
Mr. Justice O’Brien joins in this dissenting opinion.
Mr. Justice Roberts filed a dissenting opinion in which Mr. Chief Justice Bell joined. Mr. Justice Jones noted a dissent.
The editors express some criticism of the doctrine, but their comments are addressed to facts not present in this action, e.g., the relation of the doctrine to a general power presently exercisable and the situation where the doctrine enables a donee effectively to exercise a power although he lacks the capacity to make a conveyance.
Two lower courts have faced the problem of a donor dying before June 1, 1957 and in his will creating a contingent remainder in favor of a charity which contingency is removed after June 1, 1957; and they have come to opposite conclusions. Holsman Estate, 19 Fid. Rep. 641 (O.C. Phila. 1969) and Kerr Estate, 26 Pa. D. & C. 2d 130 (O.C. York 1961).
Section 103 of the Act of June 15, 1961, P. L. 373, 72 P.S. §2485-103, clearly states that the Inheritance Tax Act applies only to decedents dying on or after January 1, 1962, and that existing law (as to which the rate as to lineals remains at 2% applies to decedents dying before that date.