In Re Estate of Mahoney

GRAY, C.

The decedent left all his estate by will to his ten nephews and nieces, all of whom are non-residents of the state of California, three of them residing in the state of New York and seven in Ireland. Seven of the said nieces and nephews appeal,— 1. From that portion of the decree of final distribution herein which deducts five per cent from their respective distributive shares for collateral inheritance tax, and 2. From that portion of said decree which deducts a further sum of one dollar and ninety cents on each one hundred dollars for taxes claimed to be due on said estate.

1. Appellants contend that legacies to nephews and nieces are exempt from the collateral inheritance tax, whether they reside in this state or not. This contention cannot be upheld without a violation of the clearly expressed intention of the legislature. The collateral inheritance tax law of this state, as it originally existed, is to be found in the Statutes of 1893 (p. 193). It provided that all property of an estate valued at

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five hundred dollars or more, which shall pass by will, or by the intestate laws of this state, other than to or for the use of certain relatives of the decedent named in the statute, shall be subject to the said tax. Nephews and nieces are not named among the relatives who are exempt from the tax. The act was amended in 1897, however, so as to exempt “ nieces and nephews when a resident of this state,” from the said tax. (See Stats. 1897, p. 77.) In so far as the statute as thus amended affects the questions involved in this case, it reads as follows: —

“ Section 1. After the passage of this act, all property which shall pass by will, . . . other than to the use of his or her father, mother, husband, wife, lawful issue, brother, sister,

and nieces or nephews when a resident of this

state, . . . shall be and is subject to a tax of five dollars on every one hundred dollars of the market value of such property, ... for the use of the state; . . . provided, that an estate which may be valued at a less sum than five hundred dollars shall not be subject to such duty or tax.”

In 1899 the legislature again amended the said act, and left out the clause exempting nieces and nephews from the tax. The present case rests upon the law as it stood prior to this last amendment, and as it was amended in 1897. The language of the statute as amended in 1897 shows that it was the purpose of the framers of the law that nieces and nephews nonresident of the state should be subject to the tax; and if, as contended for by appellants, we eliminate from the statute the clause, “when a resident of the state,” and leave in the words, “ and nieces and nephews,” we establish a law as to nieces and nephews non-resident of this state, in direct opposition to the apparent legislative intent. This we may not do. Where there are two provisions in a statute, the one constitutional and the other one not, the unconstitutional provision may be rejected and the other stand, but here there is but one provision in question, and, being clearly unconstitutional, it should be rejected as a whole, and held invalid.