The opinion
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Rathbun, J.
I heartily concur with the majority in the conclusion reached by them that the succession tax is valid but I am unable to subscribe to the finding that the legislature failed to express an intention to authorize the assessment of an estate tax upon the same property.
Section 1 of the Tax Act of 1916 imposes a tax upon the net estate of non-resident decedents “consisting of real property located within this state, or any interest therein, as a tax upon the right to transfer.” Section 2 of said act, as amended by Chapter 1946 of the Public Laws of 1920, contains the following provision relative to ascertaining the value of the net estate which is subject to the tax imposed by said Section 1: “The value of the net estate of a nonresident decedent for the assessment of the tax imposed by Section 1 of this act shall be ascertained by taking the full and fair cash value of the real property located in Rhode Island, and any interest therein, including such real property and interests in real property as are described in paragraphs 2, 3 and 4 of Section 5 of this act.” If we examine paragraph 3 of said Section 5 we find described precisely the kind of property which we have under consideration, that is, property subject to a power of appointment with the donee of the power of appointment omitting and failing to exercise the power. Excepting our use of italics said paragraph 3 is as follows: “Whenever any person shall exercise a power of appointment, derived from any disposition of property made whether 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; and whenever any person possessing such a power of appointment so derived shall omit or fail to exercise the same within the time provided therefor in whole or in part, a
transfer taxable under the provisions of this act shall be deemed to take place to the extent of such omission or failure,
in the same manner as though the
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person thereby becoming entitled to the possession or enjoyment of the property to which such power related had succeeded thereto by a will of the donee of the power failing to exercise such power, and shall take effect at the time of such omission or failure.” Of course, the remainder in question was not the property of the donee of the power but said paragraph 3 provides that,
“a
transfer taxable under the provisions of this act shall be deemed to take place to the extent of such omission or failure” and said Section 2 directs that, in ascertaining the value of the estate which is subject to an estate tax, the property described in said paragraph 3, that is, property subject to a power of appointment, shall be included in the list of property of the non-resident decedent, even when the power is not exercised. I can see no escape from the conclusion that the legislature intended to impose an estate tax, as well as a succession tax, upon the property in question but whether the statute by which that intention is expressed is constitutional as applied to the facts in this case I express no opinion.
Tillinghast & Collins, James A. Tillinghast,
for petitioner.
Herbert L. Carpenter, Attorney General, Harold W. J ames,
for respondents.