Cranston

This is an appeal by the executors of the will of Giovanni (John) Vai from an order fixing an inheritance tax and overruling objections to a report of the inheritance tax appraiser imposing a tax on property placed in trust for John’s daughter under the terms of his will. The question for determination is whether an inheritance tax may be levied on property which a testator leaves to a daughter by will pursuant to a valid contract entered into during his lifetime. We hold, for reasons which shall hereinafter appear, that such a bequest is not subject to an inheritance tax if the testator has received full consideration in money or money’s worth, within the meaning of the inheritance tax law, for the promised bequest.

John and Tranquilla Vai were married in 1907. They had one daughter, Madeline (now 40 years old) who is mentally arrested and requires constant care and attention. After a period of marital discord, Tranquilla filed an action for separate maintenance against John. In March 1953 they entered into a property settlement agreement through which Tranquilla was to receive less than half the community property but John undertook to support Madeline during his lifetime, to…

I dissent. The Legislature has provided in plain terms that every transfer by will is subject to the inheritance tax. 1 A testator’s transfer by bequest or devise in performance of an agreement is no less a “transfer by will” than a bequest or devise for any other purpose. Nothing in the present statute or its prede *157 cessors suggests that a transfer by will pursuant to an enforceable contract is excepted from the normal operation of the tax. In all the years since the Legislature first selected succession as a subject of tax (Stats. 1853, ch. 127, art. V [Comp. Laws of Cal., Garfielde, 1853, p. 678]) it has never so much as intimated in any provision for computation of the tax, deductions or exemptions, or in any other provision that it meant to exclude from “transfer by will” a transfer by will pursuant to a contract.

The 1893 inheritance tax statute (Stats. 1893, ch. 168, p. 193) and subsequent statutes have also imposed an inheritance tax on certain inter vivos transfers. 2 The purpose of this tax is to reach inter vivos transfers so like testamentary dispositions that they might be used in lieu thereof to avoid the inheritance tax. (Estate of Potter (1922) 188 Cal. 55, 63…