Kirkwood

The statute which, by its express terms, should govern this case is section 13805 of the Revenue and Taxation Code. That section declares that “Property equal in amount to the clear market value of one-half of the decedent’s separate property shall, if transferred to the spouse of the deceased, he exempt from the tax imposed by this part ...” (Italics added.) I find nothing unclear in the language chosen by the Legislature.

The computations of the executor are obedient to the statute. But the Controller, with the approval of a majority of this court, in effect amends the statute by changing the base of the exemption from the “clear market value of one-half of the decedent’s separate property” to one-half of the value of such portion of the decedent’s separate property as may *359 remain after the federal estate tax shall have been deducted from the value of the estate.

This act, if regarded as legislative, obviously is in derogation of section 1 of article III of the California Constitution. If justification is sought on the theory that it is “judicial construction” it is equally indefensible, for the construction brings a result contrary to the interest of the taxpayer in…

The executor of the estate of Herbert E. Law appeals from the orders of the trial court overruling its objections and fixing the marital exemption under section 13805 of the Revenue and Taxation Code at the amount computed by the Controller.

Decedent died testate on June 18, 1952. He left over half his estate to his wife, provided a legacy for an adopted daugh *349 ter, and left the residue in trust for other beneficiaries. The will provided that inheritance and estate taxes should be paid “out of my residuary estate in the same manner as an expense of administration” and should not be apportioned, prorated, or charged against any of the devisees, legatees, or beneficiaries. This provision precluded proration of the federal estate tax under sections 970 to 977 of the Probate Code. The market value of decedent’s estate, which consisted solely of separate property, was $2,961,436.71. The computations of the marital exemption contended for by the parties are as follows:

Controller’s Computation Market value of decedent’s estate ......$2,961,436.71

Less all allowable deductions, including federal estate tax ... 491,005.67

Executor’s Computation Market value of decedent’s estate…