Winslow,- O. J.
The following propositions are decided in this case:
1. The inheritance tax, being a tax upon the transfer or devolution of property or the right of succession thereto, and not a tax upon the property itself, may he properly levied upon a transfer which becomes effective by appointment made after the passage of the law under a power previously created, for the reason that the transfer does not become complete until the appointment is made and at that time the law is in effect. Matter of Dows, 167 N. Y. 227, 60 N. E. 439; Matter of Cooksey, 182 N. Y. 92, 74 N. E. 880; Minot v. Treasurer, 207 Mass. 588, 93 N. E. 973; State ex rel. Smith v. Probate Court, 124 Minn. 508, 145 N. W. 390.
2. The principle just stated applies to a case where, as here, the appointment must he made from a class, as well as to a case where the power is a general one. Matter of Dows, supraj Burnham v. Treasurer, 212 Mass. 165, 98 N. E. 603.
3. The provision that a transfer resulting from the failure of the donee of the power to appoint shall he deemed to constitute a taxable transfer equally with a transfer resulting from an appointment, is valid because the failure to act equally affects' the course of the succession, and until such failure is complete the succession is not fully determined. Burnham v. Treasurer, supra.
4. The prqviso in sub. (4) of sec. 10871 — 1, Stats., excepting estates vested before the act and contingent interests created by will before the act, does not apply to estates or property created by appointment under sub. (5), because it seems clear that by sub. (5) the legislature intended to deal sep[62]*62arately with property or estates created by appointment and to cover that subject completely, hence that an exception contained in another subsection which has ample scope for operation elsewhere is not to be imported into it.
By the Gourt. — Judgment affirmed.
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