McClain, C. J.
1. Appeal: orders affecting substantial rights. I. The State Treasurer’s motion in this court to dismiss the appeal of the administrators on the ground that the ruling appealed from is not an appealable order has been submitted with the case, and we first proceed to the determination of . , , such motion. By Code section 4101, it is provided that an appeal may be taken from “ an order made affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment from which an appeal -might be taken,” and also from “ an intermediate order involving the merits or materially affecting the final decision.” The application of the State Treasurer [139]*139was to compel tbe administrators to file inventories of tbe personal property of the estate and of the real property of tbe deceased. As will appear from our conclusion stated in a subsequent portion of this opinion, tbe State Treasurer was not interested in tbe filing of an inventory of tbe personal property of tbe estate, unless some portion of sucb estate was subject to tbe collateral inheritance tax,-' and there was no obligation whatever on tbe part of tbe administrators to file any inventory of tbe real property of the deceased, unless by provisions of the will or by tbe statutes of inheritance some portion of sucb real property passed to some person, as devisee or otherwise, other than tbe wife or lineal descendants of deceased. Code section 1467. Tbe resistance and crosspetitionmf tbe administrators put in issue tbe very facts, and all tbe facts, on which tbe State Treasurer predicated bis right to have inventories filed, and tbe ruling on tbe motion to strike this resistance and cross-petition deprived tbe administrators of any opportunity to show a reason for' not filing sucb inventories in response to tbe application of tbe State Treasurer. Certainly, so far as tbe inventory of tbe real property was concerned, this ruling conclusively imposed upon the administrators a duty not imposed upon them by law, if their contention in their resistance and cross-petition was well founded; and we have no difficulty, therefore, in reaching tbe conclusion that tbe ruling of tbe trial court striking out tbe resistance and cross-petition was an order affecting a substantial right in tbe probate proceeding determining tbe question involved as to tbe right of tbe State Treasurer to have these inventories filed, and preventing a judgment from which an appeal might be taken; for its effect was to finally adjudicate the obligation of tbe administrators on tbe application of tbe State Treasurer to file these inventories. Tbe ruling was also an intermediate order involving tbe merits and materially affecting tbe final decision, for it was an adjudication that under tbe collateral inheritance statutes the administrators were bound to filé [140]*140such inventories, and a refusal to entertain any showing by the administrators that no portion of the estate of deceased or of his real property was subject to an inheritance tax. The motion to dismiss the appeal is therefore overruled.
2. Collateral inheritance tax: wills : waiver of legacy : agreement for distribution. II. In considering the merits of the appeal, the first question suggesting itself is whether, after the renunciation by Lucia W. Stone of all the right or interest which she could claim under the will, there was any property or interest subject to the collateral inheri- . . _ _ tance tax. lx her renunciation was valid and effectual, then the entire estate of deceased was to pass to his widow and direct descendants, and no right to or interest in any portion of it could be such that the succession thereto was subject to a tax. That a devisee or legatee may renounce the devise or legacy, so as to prevent the provision of the will as to such devise or legacy having any effect to pass any interest or title, seems too well settled to leave any room for controversy. While the assent of the devisee or legatee to a provision apparently for his benefit will be presumed, it is well settled that such assent may be expressly withheld, and the benefits of the will renounced, and in such case no interest whatever passes to the intended beneficiary.' Defreese v. Lake, 109 Mich. 415 (67 N. W. 505, 32 L. R. A. 744, 63 St. Rep. 584); King v. Gridley, 46 Conn. 555; Watson v. Watson, 128 Mass. 152; Stebbins v. Lathrop, 4 Pic. (Mass.) 33, 42; Perry v. Hale, 44 N. H. 363. And probate courts may respect and carry out agreements of settlement among the parties interested in the estate by which benefits under the will are renounced. Ward v. Ward, 15 Pick. 511. The collateral inheritance tax is on the right to succession to property, and not on the property itself,' and it is collectable out of each specific share or interest, not out of the general property of the estate. Herriott v. Potter, 115 Iowa, 648; In re Westurn’s Estate, 152 N. Y. 93 (46 N. E. 315); United States v. Perkins, 163 U. S. 625 (16 Sup. Ct. 1073, 41 L. Ed. 287. It follows [141]*141that, if the renunciation of Lucia W. Stone and the agreement of settlement of the estate to which she was a party were effectual, then she took no interest subject to the inheritance tax, and no such tax could be collected out of the property of the estate or with respect to the real property of the deceased. It is said by Hirschberg, J., in rendering the decision of the Supreme Court of New York, In re Wolfe's Estate, 85 N. Y. Supp. 949, 953, reversing the decision of the surrogate affirming the assessment of a transfer tax under circumstances somewhat similar to those involved in the case before us, that:
If no transfer is effected, because it turns out that there is no property to transfer, no tax can be collected; and if the legatee renounce the gift, and refuse to receive it, no tax can be collected with respect to him, because there has been no transfer to him. His right to renounce the privilege of accepting the donation is not denied or forbidden by the statute, and such fight is recognized by the authorities, or some of them, which I have cited. On his effective renunciation the title to or ownership of the property of the gift remains in the estate, to be disposed of under the terms of the will, and the succession is taxable in accordance with the nature of-th'e ultimate devolution. The fact that the tax is payable at the death of the testator controls the question of interest, but certainly controls no other question germane to the point now under consideration. There need be no reasonable apprehension that the state government will be seriously embarrassed by renunciations of legacies made in evasion of the law; but, aside from that consideration, it must be borne in mind that the judicial function is essentially expository, and not creative, and that the Legislature can readily provide against the possibility of such evasion, if existing laws are not deemed adequate.
That the renunciation by Lucia W. Stone was effectual cannot be open to question. Not only was her express renunciation filed as a conveyance in the recorder’s office, and also in the office of the clerk of the district court, but the agreement by which she, joining with all the other persons [142]
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McClain, C. J.
1. Appeal: orders affecting substantial rights. I. The State Treasurer’s motion in this court to dismiss the appeal of the administrators on the ground that the ruling appealed from is not an appealable order has been submitted with the case, and we first proceed to the determination of . , , such motion. By Code section 4101, it is provided that an appeal may be taken from “ an order made affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment from which an appeal -might be taken,” and also from “ an intermediate order involving the merits or materially affecting the final decision.” The application of the State Treasurer [139]*139was to compel tbe administrators to file inventories of tbe personal property of the estate and of the real property of tbe deceased. As will appear from our conclusion stated in a subsequent portion of this opinion, tbe State Treasurer was not interested in tbe filing of an inventory of tbe personal property of tbe estate, unless some portion of sucb estate was subject to tbe collateral inheritance tax,-' and there was no obligation whatever on tbe part of tbe administrators to file any inventory of tbe real property of the deceased, unless by provisions of the will or by tbe statutes of inheritance some portion of sucb real property passed to some person, as devisee or otherwise, other than tbe wife or lineal descendants of deceased. Code section 1467. Tbe resistance and crosspetitionmf tbe administrators put in issue tbe very facts, and all tbe facts, on which tbe State Treasurer predicated bis right to have inventories filed, and tbe ruling on tbe motion to strike this resistance and cross-petition deprived tbe administrators of any opportunity to show a reason for' not filing sucb inventories in response to tbe application of tbe State Treasurer. Certainly, so far as tbe inventory of tbe real property was concerned, this ruling conclusively imposed upon the administrators a duty not imposed upon them by law, if their contention in their resistance and cross-petition was well founded; and we have no difficulty, therefore, in reaching tbe conclusion that tbe ruling of tbe trial court striking out tbe resistance and cross-petition was an order affecting a substantial right in tbe probate proceeding determining tbe question involved as to tbe right of tbe State Treasurer to have these inventories filed, and preventing a judgment from which an appeal might be taken; for its effect was to finally adjudicate the obligation of tbe administrators on tbe application of tbe State Treasurer to file these inventories. Tbe ruling was also an intermediate order involving tbe merits and materially affecting tbe final decision, for it was an adjudication that under tbe collateral inheritance statutes the administrators were bound to filé [140]*140such inventories, and a refusal to entertain any showing by the administrators that no portion of the estate of deceased or of his real property was subject to an inheritance tax. The motion to dismiss the appeal is therefore overruled.
2. Collateral inheritance tax: wills : waiver of legacy : agreement for distribution. II. In considering the merits of the appeal, the first question suggesting itself is whether, after the renunciation by Lucia W. Stone of all the right or interest which she could claim under the will, there was any property or interest subject to the collateral inheri- . . _ _ tance tax. lx her renunciation was valid and effectual, then the entire estate of deceased was to pass to his widow and direct descendants, and no right to or interest in any portion of it could be such that the succession thereto was subject to a tax. That a devisee or legatee may renounce the devise or legacy, so as to prevent the provision of the will as to such devise or legacy having any effect to pass any interest or title, seems too well settled to leave any room for controversy. While the assent of the devisee or legatee to a provision apparently for his benefit will be presumed, it is well settled that such assent may be expressly withheld, and the benefits of the will renounced, and in such case no interest whatever passes to the intended beneficiary.' Defreese v. Lake, 109 Mich. 415 (67 N. W. 505, 32 L. R. A. 744, 63 St. Rep. 584); King v. Gridley, 46 Conn. 555; Watson v. Watson, 128 Mass. 152; Stebbins v. Lathrop, 4 Pic. (Mass.) 33, 42; Perry v. Hale, 44 N. H. 363. And probate courts may respect and carry out agreements of settlement among the parties interested in the estate by which benefits under the will are renounced. Ward v. Ward, 15 Pick. 511. The collateral inheritance tax is on the right to succession to property, and not on the property itself,' and it is collectable out of each specific share or interest, not out of the general property of the estate. Herriott v. Potter, 115 Iowa, 648; In re Westurn’s Estate, 152 N. Y. 93 (46 N. E. 315); United States v. Perkins, 163 U. S. 625 (16 Sup. Ct. 1073, 41 L. Ed. 287. It follows [141]*141that, if the renunciation of Lucia W. Stone and the agreement of settlement of the estate to which she was a party were effectual, then she took no interest subject to the inheritance tax, and no such tax could be collected out of the property of the estate or with respect to the real property of the deceased. It is said by Hirschberg, J., in rendering the decision of the Supreme Court of New York, In re Wolfe's Estate, 85 N. Y. Supp. 949, 953, reversing the decision of the surrogate affirming the assessment of a transfer tax under circumstances somewhat similar to those involved in the case before us, that:
If no transfer is effected, because it turns out that there is no property to transfer, no tax can be collected; and if the legatee renounce the gift, and refuse to receive it, no tax can be collected with respect to him, because there has been no transfer to him. His right to renounce the privilege of accepting the donation is not denied or forbidden by the statute, and such fight is recognized by the authorities, or some of them, which I have cited. On his effective renunciation the title to or ownership of the property of the gift remains in the estate, to be disposed of under the terms of the will, and the succession is taxable in accordance with the nature of-th'e ultimate devolution. The fact that the tax is payable at the death of the testator controls the question of interest, but certainly controls no other question germane to the point now under consideration. There need be no reasonable apprehension that the state government will be seriously embarrassed by renunciations of legacies made in evasion of the law; but, aside from that consideration, it must be borne in mind that the judicial function is essentially expository, and not creative, and that the Legislature can readily provide against the possibility of such evasion, if existing laws are not deemed adequate.
That the renunciation by Lucia W. Stone was effectual cannot be open to question. Not only was her express renunciation filed as a conveyance in the recorder’s office, and also in the office of the clerk of the district court, but the agreement by which she, joining with all the other persons [142]*142interested in the distribution of the estate and in the real property of the deceased, renounced the provisions of the will and provided for tire descent’ and distribution of decedent’s property as though he had died intestate, was made the basis of an independent action in the district court to set aside tire probate of the will, and was confirmed by the court in such action. That the district court had jurisdiction in this proceeding is not questioned. These facts are all fully alleged and set out in the resistance and cross-petition of the administrators, and must be assumed to be true in passing upon the correctness of the ruling of the trial court in striking out such resistance and cross-petition. If they are true, then there was no property or interest passing to Lucia W. Stone subject to the payment of any collateral inheritance tax, and, as she was the only beneficiary under the will other than the wife and direct lineal descendants of deceased, the State Treasurer had no interest whatever in the filing of inventories in the probate court by the administrators of the deceased.
Under Code, section 3310, it is the duty of the administrators to file an inventory of the personal effects of the deceased; but that is not a duty in the performance of which the State Treasurer has any interest, unless some property of the estate or of the deceased is to pass to some one not the widow or lineal descendant of the deceased, and the administrators are under no obligation whatever to file any description of the real property of which the deceased died possessed, unless such duty is imposed upon them by the provisions of the statutes as to collateral inheritance taxes. Herriott v. Potter, 115 Iowa, 648. So far as the State Treasurer was concerned, the administrators owed no duty to file inventories, unless such duty was imposed upon them under the statutory provisions relating to collateral inheritance taxes. By Code, section 1468, it is made the duty of administrators to file an inventory of all the real estate of the decedent liable to such tax, and by Acts 27th Gen. Assembly (Code Supp. [143]*143section 1479a), it is provided, that “ in all of the estates subject to the payment of the collateral inheritance tax it shall be the duty of the executor, administrator, or trustee, to furnish the clerk of the court a list of the heirs, . . . and to state therein in a separate column the relationship which each heir, devisee or legatee bears to the decedent.” The general duty imposed by the section last quoted is amplified in the rules and regulations relating to the assessment and collection of the collateral inheritance tax, but these rules evidently have no application in the settlement of estates not “ subject to the payment of the collateral inheritance tax,” as specified in Code Supp. section 1479a. It was vital, therefore, in the determination of the question whether the motion of the State Treasurer to require the administrators to file inventories should be sustained, to ascertain whether any portion-of the estate of the deceased or any part of the real property of which he died seised was to pass in such way as to be subject to the payment of such tax, and the court should have proceeded to determine such questions under the facts alleged by the resistance and cross-petition of the administrators, and should not have stricken such resistance and cross-petition from the files and required the administrators to file inventories under the bare allegations of the motion of the State Treasurer that one-third of the estate was devised to a collateral heir and was subject to the collateral inheritance tax, and that the devisee accepting the provisions of the will and acting thereunder had proceeded with the settlement of the estate in the usual manner, and that the administrators had failed and refused to file an inventory of the real property of the deceased.
The ruling and order of the lower court, appealed from, is therefore reversed.