Estate of Bowditch

LENNON, J.

The administratrix with the will annexed of the estate of Charlotte Bowditch, deceased, and certain legatees and devisees under said will, appeal from an order decreeing, among other things, that an inheritance or succession tax be paid on account of the purported transfer under said will of certain personal property valued at

[378]

$299,260.66. The uncontradieted material facts pertinent to the point presented on the appeal are these:

J. Ingersoll Bowditch, who died in the year 1889, was a resident of the state of Massachusetts, where his will was admitted to probate and his estate distributed. By his will the property here involved was bequeathed to certain trustees in trust, to pay the net income derived therefrom to Charlotte Bowditch during her life and, upon her death, to convey the

corpus

and remainder of said property “to such person or persons, and in such way or manner as such child [Charlotte Bowditch] shall direct in and by . . . her last will, if any.” In accordance with this testamentary direction, the trustees under the will of J. Ingersoll Bowditch paid the income from the property to Charlotte Bowditch during her lifetime, and, upon her death, transferred the property to certain persons named in her will, accepting the latter instrument as a proper exercise of the power of appointment created in her favor by the will of J. Ingersoll Bowditch. At all times herein mentioned all of said trustees were residents of the state of Massachusetts and it is stipulated that the property itself always remained physically within that state. Charlotte Bowditch,- however, was a resident of the county of Santa Barbara, state of California, continuously from the date of the execution of her will, August 7, 1912, to the day of her death, September 3, 1919.

The order from which the present appeal is taken decrees that the transfers of the said trust property to the persons named in the will of Charlotte Bowditch are taxable under subdivision 6 of section 2 of the California Inheritance Act of 1917 (Stats. 1917, p. 880), which provides, in part, that “Whenever any person, trustee or corporation shall exercise a power of appointment derived from any disposition of property made either before or after the passage of this Act, such appointment, when made, shall be deemed a transfer taxable under the provisions of this Act, in the same manner as though the property to which such appointment relates belonged absolutely to the donee of such power, and had been bequeathed or devised by such donee by will.” It is appellants’ contention that the transfers in question are not taxable by the state of California.