principles. Where the tax is made to apply to every estate which is devised or bequeathed to, or inherited by, the persons specified in the law, it is equal, and therefore free from objections on legal grounds,150

So an excise upon the transmitting of property by will or descent is not unequal, and so unreasonable, by reason either of an exemption of kindred in the direct line, or of a higher rate as to collaterals and strangers. It is not so clearly unreasonable, by reason of an exemption of estates under $10,000, as to render it unconstitutional.151

And in a recent case in Maine, under the inheritance tax law of that state,152 the court held that: "It is entirely within the province of the legislature to determine who shall and who shall not take the estate, and the proportion in which they may take, and whether severally or as joint tenants, per capita or per stirpes. In the absence of constitutional prohibition, the legislature is supreme, and may dispose of an intestate's estate, after payment of his debts, to any class or classes of his kindred, to the exclusion of any class or classes. It may limit heirship to lineal descendants, to the absolute exclusion of all collaterals. If it permits, as our laws now do, collateral kindred to inherit, no reason is perceived why the state is debarred from exacting an excise or duty from such collateral for such privilege allowed by the state. It is necessary to make such excise uniform as to the entire class of collaterals. It must not tax one and

exempt another in the same class.

But it is not a violation

of this principle to require an excise from all collaterals and strangers, and exempt from the excise classes nearer in blood to the decedent." Statutes have been passed, however, creating exemptions, which have been declared void, as violating constitutional provisions.

150 In re Sherwell's Estate, 125 N. Y. 379, 26 N. E. 464.

151 Minot v. Winthrop (1894) 162 Mass. 113, 38 N. E. 512. 162 State v. Hamlin (1894) 86 Me. 502, 30 Atl. 76.

In Curry v. Spencer,153 an inheritance tax law was held unconstitutional, as violating the provision limiting the power to tax "proportional and reasonable assessments, rates and taxes upon all the inhabitants and residents within the said state, and upon the estates within the same,” and as violating the bill of rights, requiring every inhabitant to contribute not more of his proportional share of the common burden. The court said: "We therefore go no further than to say that, if the legislature deems it expedient to defray the expenses of probate courts by a tax upon recipients of estates therein adjudicated, such tax must be proportional, and constitute only the just share of those upon whom it is imposed; that it cannot lawfully make discriminations, and cast the burden upon one class of beneficiaries, and exempt all other classes from its operation; and that it cannot, therefore, for purposes of taxation, exempt legacies and successions to husband, wife, children, and grandchildren, and include only those by the collaterals and others than those specified." In Ohio the direct inheritance tax act 154 has recently been declared unconstitutional, as violating the rule of uniformity and equality, in that the exemptions under the act were restricted to certain classes and amounts, and did not apply to all persons.155

And in Minnesota,156 a statute requiring, as a condition precedent to probate proceedings for the settlement of estates, the payment to the county treasurer of specified sums, arbitrarily prescribed with reference to the value of the esstate, was held unconstitutional, being contrary to clauses requiring equality of taxation, and the dispensation of jus

153 1882, 61 N. H. 624.

154 Appendix, Act 1894 (91 Ohio Laws, 166).

155 State v. Ferris (April, 1895) supra, p. 68.

156 State v. Gorman (1889) 40 Minn. 232, 41 N. W. 948. The constitution of this state now allows such a tax. See section 11, supra.

tice freely and without purchase. The court said: 157 "It is thus apparent that these exactions are taxes, in the general and in the precise meaning of that word, and, if the constitutional rule of approximate equality has been disregarded, the law cannot stand. It seems hardly necessary to refer particularly to the schedule of values and of amounts required to be paid, to show that the law wholly fails, in apportioning the burden imposed, to regard the constitutional rule of equality, measured with reference to the value of the prop erty taxed. In the first place, estates not exceeding $2,000 If es

in value are wholly exempt from any contribution. tates are taxable in this manner at all, such an exemption is contrary to the requirements of the constitution."

This ruling is now probably overcome by the recent amendment to the constitution of that state, providing for an inheritance tax.158

Under the constitution of Pennsylvania to exempt an institution from taxation it is an essential feature that it be a public charity, free from any element of private or corporate gain. When it is free from the latter element, and is an institution devoted to charity by its act of incorporation, its character as such charity is not destroyed, if to some extent it receive a revenue from the recipients of its bounty.159

§ 31. General Questions as to Jurisdiction. Surrogates' courts are constitutionally empowered to determine the tax, as it is simply an incident in the settlement of the estate of deceased persons.160 And the power to im

157 40 Minn. 235, 41 N. W. 949. 158 Supra, section 11.

159 Philadelphia v. Woman's Christian Ass'n (1889) 125 Pa. St. 572, 17 Atl. 475; Philadelphia v. Pennsylvania Hospital, 47 Leg. Int. 70.

160 In re McPherson (1887) 104 N. Y. 306, 10 N. E. 685; Wallace v. Myers, 38 Fed. 184.

pose a succession tax may be delegated by the legislature to counties and municipal corporations, though it should be plainly and unmistakably conferred, and the law will be strictly construed.101

161 Peters v. City of Lynchburg, 76 Va. 927; Schoolfield v. City of Lynchburg, 78 Va. 366. Constitutional rule considered with reference to valuation of life estates. See William's Case, 3 Bland, 186.

(72)

CHAPTER III.

EXEMPTIONS.1

32. Taxation the General Rule.

33. Policy of Inheritance, Legacy, and Succession Tax Laws. 34. An Enumeration of Statutory Exemptions.

(a) New York.

(1) Under General Tax Laws.

(2) Collateral Heirs under Acts 1887 and 1892.

(3) Direct or Lineal Heirs-Act 1892.

(4) Religious and Other Corporations-Act 1890.

(b) Pennsylvania.

(c) Maryland.

(d) Virginia.

(e) West Virginia.

(f) Delaware.

(g) Connecticut.

(h) North Carolina.

(i) California.

(j) Maine.

(k) Massachusetts.

(1) New Jersey.

(m) Ohio.

(1) Collateral Heirs-Act 1893.

(2) Direct or Lineal Heirs-Act 1894.

(n) Tennessee.

(0) Illinois.

(p) Minnesota.

35. Charitable, Religious, and Other Corporations and Objects. 36. Foreign Corporations and Governments.

37. Adopted Children-Mutually Acknowledged Relation of Parent and Illegitimate Children, etc.

38. Widows, and Husbands of Deceased Daughters. 39. Next of Kin, Lineal and Lawful Descendants.

1 See, also, chapter 2, § 30, on constitutionality of exemptions; chapter 4, as to resident and nonresident decedents; chapter 6, as to Constructive exemptions, remainders, trusts, powers, and legacies.