In re the Estate of Wilmerding

Harrison, J. The decedent, by his last will and testament, left various legacies to his brothers and sisters, and also a legacy of two hundred thousand dollars to his nephew, Henry W. Payne. Upon proceedings therefor in the superior court of the city and county of San Francisco, by virtue of the act commonly known as the act providing for a collateral inheritance tax, passed March 23, 1893 (Stats. 1893, p. 193), it was determined that the value of the legacy was one hundred and forty-eight thousand nine hundred and ninety-nine dollars and thirty-four cents, and thereupon the court made an order directing the executors to pay to the treasurer of the city and county the sum of seven thousand four hundred and forty-four dollars and ninety-six cents, as and for the tax upon this legacy. From this order the executors have appealed.

The act under which the order appealed from' was made is entitled “An act to establish a tax on collateral inheritances, bequests, and devises, to provide for its collection, and to direct the disposition of the proceeds.” Section 1 of the act declares: “After the passage of this act all property which shall pass by will, or by the intestate laws of this state, from any person who may die seised or possessed of the same while a resident of this state .... to any person or persons .... ‘ other than to or for the use of his or her father, mother, husband, [284]wife, lawful issue, brother, sister, the wife or widow of a son, or the husband of a daughter, or any child or children adopted as such in conformity with the laws of the state of California, and any lineal descendant of such decedent born in lawful wedlock, or the societies, corporations, and institutions now exempted bylaw from taxation/ . . shall be subject to a tax of five dollars on every hundred dollars of the market value of such property, to be paid to the treasurer of the proper county, as hereinafter defined, for the use of the state, and ajl administrators, executors, and trustees shall be liable for any and all such taxes until the same shall have been paid as hereinafter directed; 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.”

Similar statutes have been enacted in other states, and, with the exception of New Hampshire, have been sustained by the courts in those states upon the ground that the charge thus imposed is in the nature of an excise tax or a tax upon the right of succession, and is within the constitutional power of the legislature. (State v. Hamlin, 86 Me. 495; 41 Am. St. Rep. 569; Minot v. Winthrop, 162 Mass. 113; Hoffman’s Estate, 143 N. Y. 327; Strode v. Commonwealth, 52 Pa. St. 181; State v. Dalrymple, 70 Md. 294; Eyre v. Jacob, 14 Gratt. 422; 73 Am. Dec. 367; State v. Alston, 94 Tenn. 674. See, also, United States v. Perkins, 163 U. S. 625.) The principles upon which the tax is upheld have been so fully and clearly elaborated in the above cases that it is necessary to do no more than refer to the cases. The right of inheritance, including the designation of heirs and the proportions which the several heirs shall receive, as well as the right of testamentary disposition, are entirely matters of statutory enactment, and within the control of the legislature. As it is only by virtue of the statute that the heir is entitled to receive any of his ancestor’s estate, or that the ancestor can divert his estate from the heir, the same authority which