Vann, J.
This appeal presents the question whether the legislature is prohibited by the Constitution, State or Federal, from passing an act to impose a transfer tax upon the exercise, by a last will and testament, of a power of appointment derived from a deed, executed before the passage of any statute imposing a tax upon the right of succession to the property of a decedent.
The facts out of which this question arose are as follows : On the 30th of September, 1848, William B. Astor owned a house and lot on Lafayette place, in the city of Eew York, and on that day he conveyed the same to his daughter, Mrs. Laura Delano, for life, and upon her death, without issue, to her brothers and her sister Alida, or their issue as they might then survive,
per stirpes.
By the same deed he conferred upon Mrs. Delano a power of appointment, to be exercised, in her discretion, by an
instrument “ in its nature testamentary,” in such a manner as “ to give the said land and premises, or any share or. part thereof, to and amongst her said * * * brothers and sister Alida, or their issue, in such manner and proportions as she may appoint.”
On the 6th of September, 1849, said William B. Astor transferred certificates of the public debt of the state of Ohio, amounting to $50,000, to James Gallatin and another, in trust to receive the income and apply it to the use of his daughter Laura during her life, and upon her death without issue to 'transfer “the capital of the said stock * * * to her surviving brothers and sister Alida ” or their issue then surviving. . This gift was also subject to a power of appointment created by the trust deed, whereby the said Laura was authorized “ by any instrument duly executed as a will of personal estate to dispose of said capital into and amongst her * * * brothers, sister and their issue in such shares and proportions as she may think fit and upon such limitations, by way of trust or otherwise, as in her discretion may be lawfully devised.”
William B. Astor died on the 24th of November, 1875, about twenty-six years after the date of the last deed, and neither of said instruments was made by him in contemplation of death. Mrs. Delano, his daughter, died June 15th, 1902, without issue, leaving a last will and testament, which has been duly admitted to probate, whereby she exercised the power of appointment contained in said deeds in favor of Arthur Astor Carey, her nephew.
A proceeding was commenced before the proper surrogate to make the usual appraisal for the purpose of assessing a transfer tax upon the property transferred and appointed by the last will and testament of Mrs. Delano, and Mr. Carey was notified to appear. He appeared only for the purpose of objecting to the jurisdiction of the surrogate, from whom he procured an order requiring the executors of Mrs. Delano and the comptroller of the state to show cause why the proceeding should not be dismissed as to him for the want of jurisdiction. The surrogate denied the motion, but upon appeal to the
Appellate Division liis order was reversed and the proceeding was dismissed as to Mr. Carey. The comptroller appealed to this court.
Article 10 of the Tax Law relates to taxable transfers, and embraces sections 220 to 242 inclusive. Section 220, as amended in 1897, imposes a tax upon the transfer of any property, real or personal, not only by will or intestate law, but also “ whenever any person or corporation shall exercise a power of appointment derived from any disposition of property made either 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; * * (L. 1897, ch. 284, § 220, subd. 5.)
The learned Appellate Division held that the statute, as amended, applied to the property in question, but that the appointee took under the deeds and not under the will, and the attempt of the act to impose a tax upon the property under the guise of a tax upon succession, was retroactive and unconstihitional.
The statute, as we read it, does not attempt to impose a tax upon property, but upon the exercise of a power of appointment. The power in this case was exercised by will, in such a way that the appointee became entitled to all the property, instead of an aliquot part. While the property came to him. by deed from his grandfather, only a part of it could have reached him but for the will of his aunt. His title to the most of it depended on the will, as well as upon the deed. He is compelled to resort to the will -in order to establish his right, for the deed alone will not suffice. The privilege of making a will is not a natural or inherent right, but one which the state can grant or withhold in its discretion. If granted, it may be upon such conditions and with such limitations as the legislature sees fit to create. The payment of a sum in gross, or of an amount measured by the value of the property
affected, may be exacted, or the right may be limited to one or more kinds of property and withdrawn as to all others. The legislature could provide that no power of appointment should be exercised by will, or that it should be exercised only upon the payment of a gross or ratable sum for the privilege. It could exact this condition, independent of the date or origin of the power. All this necessarily flows from the absolute control by the legislature of the right to make a will.
(Matter of Sherman,
153 N. Y. 1, 4;
Matter of Dows,
167 N. Y. 227, 231;
Magoun
v.
Illinois Trust & Sav. Bank,
170 U. S. 283;
United States
v.
Perkins,
163 U. S. 625, 628;
Mager
v.
Grima,
8 How. [U. S.] 490, 493.)
We do not regard the cpiestion presented as open in this court, for we have recently passed upon it in two cases, each of which arose under the statute as amended in 1897. In the earlier case a testator, who died in 1885, created a trust fund and gave the income thereof to his son during life, but directed that upon his death the principal should be paid to his issue in such shares or proportions as he should by will appoint, with a gift directly to such issue if the power of appointment was not exercised. The son died in 1899, leaving a will by which he exercised the power. We held, adopting the opinion of the court below, that, although the ultimate right of succession to the fund was not taxable under the statute in force when the father died, still the shares of the appointees under the son’s will were subject to a transfer tax under the act of 1897.
(Matter of Vanderbilt,
50 App. Div. 246; 163 N. Y. 597.)
In the second case the testator died in 1880, after devising certain real property in trust to pay the income to his son during life and upon his death said realty was to vest absolutely and at once in such of his children and the issue of his deceased children as he should by will appoint.
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Vann, J.
This appeal presents the question whether the legislature is prohibited by the Constitution, State or Federal, from passing an act to impose a transfer tax upon the exercise, by a last will and testament, of a power of appointment derived from a deed, executed before the passage of any statute imposing a tax upon the right of succession to the property of a decedent.
The facts out of which this question arose are as follows : On the 30th of September, 1848, William B. Astor owned a house and lot on Lafayette place, in the city of Eew York, and on that day he conveyed the same to his daughter, Mrs. Laura Delano, for life, and upon her death, without issue, to her brothers and her sister Alida, or their issue as they might then survive,
per stirpes.
By the same deed he conferred upon Mrs. Delano a power of appointment, to be exercised, in her discretion, by an
instrument “ in its nature testamentary,” in such a manner as “ to give the said land and premises, or any share or. part thereof, to and amongst her said * * * brothers and sister Alida, or their issue, in such manner and proportions as she may appoint.”
On the 6th of September, 1849, said William B. Astor transferred certificates of the public debt of the state of Ohio, amounting to $50,000, to James Gallatin and another, in trust to receive the income and apply it to the use of his daughter Laura during her life, and upon her death without issue to 'transfer “the capital of the said stock * * * to her surviving brothers and sister Alida ” or their issue then surviving. . This gift was also subject to a power of appointment created by the trust deed, whereby the said Laura was authorized “ by any instrument duly executed as a will of personal estate to dispose of said capital into and amongst her * * * brothers, sister and their issue in such shares and proportions as she may think fit and upon such limitations, by way of trust or otherwise, as in her discretion may be lawfully devised.”
William B. Astor died on the 24th of November, 1875, about twenty-six years after the date of the last deed, and neither of said instruments was made by him in contemplation of death. Mrs. Delano, his daughter, died June 15th, 1902, without issue, leaving a last will and testament, which has been duly admitted to probate, whereby she exercised the power of appointment contained in said deeds in favor of Arthur Astor Carey, her nephew.
A proceeding was commenced before the proper surrogate to make the usual appraisal for the purpose of assessing a transfer tax upon the property transferred and appointed by the last will and testament of Mrs. Delano, and Mr. Carey was notified to appear. He appeared only for the purpose of objecting to the jurisdiction of the surrogate, from whom he procured an order requiring the executors of Mrs. Delano and the comptroller of the state to show cause why the proceeding should not be dismissed as to him for the want of jurisdiction. The surrogate denied the motion, but upon appeal to the
Appellate Division liis order was reversed and the proceeding was dismissed as to Mr. Carey. The comptroller appealed to this court.
Article 10 of the Tax Law relates to taxable transfers, and embraces sections 220 to 242 inclusive. Section 220, as amended in 1897, imposes a tax upon the transfer of any property, real or personal, not only by will or intestate law, but also “ whenever any person or corporation shall exercise a power of appointment derived from any disposition of property made either 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; * * (L. 1897, ch. 284, § 220, subd. 5.)
The learned Appellate Division held that the statute, as amended, applied to the property in question, but that the appointee took under the deeds and not under the will, and the attempt of the act to impose a tax upon the property under the guise of a tax upon succession, was retroactive and unconstihitional.
The statute, as we read it, does not attempt to impose a tax upon property, but upon the exercise of a power of appointment. The power in this case was exercised by will, in such a way that the appointee became entitled to all the property, instead of an aliquot part. While the property came to him. by deed from his grandfather, only a part of it could have reached him but for the will of his aunt. His title to the most of it depended on the will, as well as upon the deed. He is compelled to resort to the will -in order to establish his right, for the deed alone will not suffice. The privilege of making a will is not a natural or inherent right, but one which the state can grant or withhold in its discretion. If granted, it may be upon such conditions and with such limitations as the legislature sees fit to create. The payment of a sum in gross, or of an amount measured by the value of the property
affected, may be exacted, or the right may be limited to one or more kinds of property and withdrawn as to all others. The legislature could provide that no power of appointment should be exercised by will, or that it should be exercised only upon the payment of a gross or ratable sum for the privilege. It could exact this condition, independent of the date or origin of the power. All this necessarily flows from the absolute control by the legislature of the right to make a will.
(Matter of Sherman,
153 N. Y. 1, 4;
Matter of Dows,
167 N. Y. 227, 231;
Magoun
v.
Illinois Trust & Sav. Bank,
170 U. S. 283;
United States
v.
Perkins,
163 U. S. 625, 628;
Mager
v.
Grima,
8 How. [U. S.] 490, 493.)
We do not regard the cpiestion presented as open in this court, for we have recently passed upon it in two cases, each of which arose under the statute as amended in 1897. In the earlier case a testator, who died in 1885, created a trust fund and gave the income thereof to his son during life, but directed that upon his death the principal should be paid to his issue in such shares or proportions as he should by will appoint, with a gift directly to such issue if the power of appointment was not exercised. The son died in 1899, leaving a will by which he exercised the power. We held, adopting the opinion of the court below, that, although the ultimate right of succession to the fund was not taxable under the statute in force when the father died, still the shares of the appointees under the son’s will were subject to a transfer tax under the act of 1897.
(Matter of Vanderbilt,
50 App. Div. 246; 163 N. Y. 597.)
In the second case the testator died in 1880, after devising certain real property in trust to pay the income to his son during life and upon his death said realty was to vest absolutely and at once in such of his children and the issue of his deceased children as he should by will appoint. If, however, the son should die intestate, the realty was to vest absolutely and at once in his children then living and the issue of his deceased children. The son exercised the power by his last will and died in 1899. We held that the property was sub
ject to the tax imposed by the act o,f 1897; that such tax was on the right of succession and not on the property; that whatever may be the technical source of title of a grantee under a power of appointment, in reality and substance it is the execution of the power that gives to the grantee the property passing under it and that when the father devised the property to the appointees under the will of his son he necessarily subjected it to the charge-that the state might impose on the privilege accorded to the son of making a will.
(Matter of Dows,
167 N. Y. 227; affirmed,
sub nom. Orr
v.
Gilman,
183 U. S. 278.)
The Supreme Court of the United States reviewed our decision, and after due consideration of the statute in question, was unable to see that as construed by us it infringed any provision of the Federal Constitution.
The learned judges below did not consider the
Dows
case in their opinion, but they attempted to distinguish the
Vanderbilt
case from the one in hand upon the ground that the power of appointment was created by will and that the will was made after the enactment of the Collateral Inheritance Tax Law. The latter distinction did not exist in the
Dows
case, where the power was created before any act was passed in this state providing for the imposition of a succession or transfer tax.
We think neither distinction is well founded. As the tax is imposed upon the exercise of the power, it is unimportant how the power was created. The existence of the poAver is the important fact, for what may be done under it is not affected by its origin. If created by deed its efficiency is the same as if it had been created in the same form by will. Ho more and no less could be done by virtue of it in the one case than in the other. Its effective agency to produce the result intended is neither strengthened nor Aveakened by the nature of the instrument used by the donor of the poAver to create it. The power, however or whenever created, authorized the donee by her avüI to divest certain defeasible estates and to vest them absolutely in one person. If this authority had
been conferred by will, instead of bjr deed, the right to act would have been precisely the same and the power would have neither gained nor lost in force. The statute applies to all powers alike, without distinction on account of the method of creation or the date of creation, and provides that the exercise of the power shall be deemed a taxable transfer of the property affected, the same as if it had belonged absolutely to the donee of the ¡lower and had been bequeathed or devised by such donee. As we said through Judge Cullen in the
Doxos
case:
“
Whatever be the technical source of title of a grantee under a power of, appointment, it cannot be denied that in reality and substance it is the execution of the power that gives to the grantee the property passing under it.” This accords with the statutory definition of a power as applied to real estate, for it includes authority to create or revoke an estate therein. (Eeal Property Law, § 111.) Such was the effect of the exercise of the power under consideration, for it both revoked and created estates in the real property and interests in the personal property. Ho tax is laid on the power, or on the property, or on the original disposition by deed, but simply upon the exercise of the power by will, as an effective transfer for the purposes of the act. If the power had been exercised by deed, a different question would have ailsen, but it was exercised by will and owing to the full and complete control by the legislature of the making, the form and the substance of wills, it can impose a charge or tax for doing anything by will.
It’ is quite immaterial that there was no statute imposing a. succession tax of any kind in force when the original disposition of the property was made and the power was created. That transfer is not taxed and the statute makes no effort to reach it. It is the practical transfer through the exercise of the power by will that 'is taxed and nothing else. The right, of the legislature to impose a tax on the privilege of exercising a power by will is not affected by the fact that no such tax was imposed when the power was created. When the creator of the power .granted the property to the appointees.
of his daughter, as Judge Oullen said in the
Dows
case, “ he necessarily subjected it to the charge that the state might impose on the privilege accorded to the ” daughter “ of making a will. ■ That charge is the same in character as if it had been laid on the inheritance of the estate by the ” daughter herself, “ that is, for the privilege of succeeding to property under a will.” If the power had not been exercised, the question would have resembled that presented by the
Pell
case, relied upon below, where we held that a statute was unconstitutional which imposed a tax upon such remainders, already vested and non-defeasible, as should result in an absolute title after the passage of the act.
(Matter of
Pell, 171 N. Y. 48.) In that case the transfer was completed without the aid of a will and the effect was the same as a deed
inter vivos.
There was no foundation for a succession tax, which is a charge upon the right to.make a will, or on the right to inherit without a will.
We think that the surrogate had jurisdiction and that his order, denying the motion to dismiss the proceedings as to the respondent was proper. It follows that the order of the Appellate Division should be reversed and that of the surrogate affirmed, with costs.
Parker, Oh. J., Bartlett, Haight and Cullen, JJ., concur ; O’Brien and Werner, JJ., dissent.
Order reversed, etc. w