In Re Colman's Estate

I dissent for two reasons.

First: I think the record compels the conclusion that the gift to the nephew was made in contemplation of death. Certainly, if, as hold the majority, the presumption is not overcome in the case of the gift made within two years of death, the evidence is sufficient to establish that the first gift was also made in contemplation of death. For it appears from the evidence that, from a time considerably prior to the date of the first gift up until his death, deceased was almost constantly under the care of physicians. He had consulted specialists in Baltimore and Portland. A post mortem autopsy was held, the report of which contains the following:

"I HEREBY CERTIFY, That I attended deceased from Feb. 18, 1930, to Jan. 10, 1933, that I last saw him alive on Jan. 10, 1933, and that death occurred on the date stated above, at 8 A.M. The CAUSE OF DEATH was as follows: Dateof onset

"Arteriosclerosis especially cerebral ?

"Tumor of hypophysis 1925"

The anatomical diagnosis made as a result of the autopsy was:

"Extreme arteriosclerosis involving particularly the coronary arteries, the arteries of the brain, and the aorta. Dissenting aneurysm of the aorta. Saccular aneurysms of the aorta. Arteriosclerotic changes in the kidney. Atrophy of the brain. Tumor of the hypophysis. Acute sphenoid sinusitis. Chronic cholecystitis. Hypostatic edema of the lungs. Anthracosis. Fatty infiltration of the pancreas."

According to Doctor Watts, the deceased, on February 18, 1930 (when the doctor first saw him), had a shuffling gait — "a characteristic gait that old people get when they have hardening of the arteries."

To say that one who was in the condition this evidence indicates deceased must have been in on February 10, 1930, did not realize that the hand of death was on him, seems to me to simply flout human experience.

Second: With respect to the deduction allowed for the Federal inheritance tax, it seems to me the statute does not admit of construction. Title XV, chapter 180, Laws of 1935, p. 768 (Rem. 1935 Sup., § 11201 [P.C. § 7030-164] et seq.), purports to be, and is, a complete piece of legislation with respect to inheritance taxes. The fact, therefore, that Rem. Rev. Stat., § 11201-b [P.C. § 7051-2], was not expressly repealed is of no moment. The rule is that, where a later act embraces the subject matter of an earlier act and covers it fully and completely, the earlier act is impliedly repealed, though not expressly and specifically repealed. Stetson-Post Mill Co. v.Brown, 21 Wash. 619, 59 P. 507, 75 Am. St. 862; In reDonnellan, 49 Wash. 460, 95 P. 1085; State v. George,84 Wash. 113, 146 P. 378; State ex rel. McCoske v. Kinnear, 145 Wash. 686, 261 P. 795. And this rule is applicable even though the two acts are not repugnant.Bradley Engineering Mach. Co. v. Muzzy, 54 Wash. 227,103 P. 37. In that case, Judge Rudkin said:

"Undoubtedly the general rule is that where a new law covers the whole subject-matter of an old one the old law is repealed by implication, though there may be some matters in the old law which are not necessarily obnoxious to any provision in the new."

With respect to allowable deductions, the present act is explicit. Section 104, p. 768 (Rem. 1935 Sup., § 11201 [P.C. § 7030-164]), so far as pertinent, provides:

"Section 1. All property within the jurisdiction of this state. . . shall, for the use of the state, be subject to a tax as provided for in section 2, after the payment of all debts owing by the decedent at the time of his death, the local and state taxes due from the estate prior to his death, and a reasonable sum for funeral expenses, monument or crypt, court costs, including cost of appraisement made for the purpose of assessing the inheritance tax, the fees of executors, administrators or trustees, reasonable attorney's fees and family allowance not to exceed $1,000.00, and no other sum . . ." (Italics mine.)

Under an almost identical provision of the inheritance tax act of 1917, this court held the amount of the inheritance tax paid the United States not to be deductible. In re Sherwood'sEstate, 122 Wash. 648, 211 P. 734. The court there said:

"Again, it is pointed out that this court has held that the tax imposed by our statute is not a tax upon the estate, but a tax on the right to receive the property of the estate (citing cases); and it is argued that this conclusion cannot soundly rest on any other principle than the principle that the tax is leviable only on the amount actually received.

"But clearly it is within the power of the legislature to declare, for the purposes of taxation, what shall be deemed to have been received by those succeeding to the property; that is, it is within the power of the legislature to say that the whole estate passes to the successor for the purposes of taxation, and then provide that certain parts of it shall be devoted to uses which prevent it from actually passing. . . .

"These considerations lead to the conclusion, we think, that the legislature intended to tax the entire estate less certain specifically enumerated deductions, and that, since the Federal estate tax is not among the enumerated items to be deducted, the state may legally collect a tax thereon."

MILLARD, C.J., concurs with BLAKE, J.