Kohr's Estate v. Boardman

I concur in denying the motion for rehearing and do so the more readily because of what seems to me to be the clear legislative intent of subdivision 4 of section 10400.1, Revised Codes, which like section 7724, Revised Codes of 1907, deals with transfers where the transferee becomes "beneficially entitled, in possession or expectancy," and which by express terms makes that Act applicable to transfers "whether made before or after the *Page 177 passage of this act." That Act applies the rates therein prescribed to all such transfers. (Par. 8, sec. 10400.1 and sec. 10400.2, Revised Codes 1935.)

There was a clear legislative intent to apply the higher rates provided for in section 10400.2 to all transfers whether made before or after the passage of the later Act as to all estates where the transferror died after the passage of the later Act.

I think under both the 1907 Act, section 7724 et seq., and under section 10400.1 et seq., the legislature intended death as the operative event that makes the tax collectible and that it is competent for the legislature to increase the rate at any time between the making of the transfer and the death of the transferror.

I believe the reasoning of the court in the cases of Milliken v. United States, 283 U.S. 15, 51 S. Ct. 324, 75 L. Ed. 809, and In re Bass' Estate, Okla. Supp., 190 P.2d 800, has application here. I see no difference in principle where the subsequent statute constitutes an amendment to an inheritance tax law as here rather than the substitution of an estate tax in the place of a prior inheritance tax statute as in Re Bass' Estate.

Rehearing denied November 29, 1948.