Interest: State Treasurer v. Trust Co. any period ascertainable only by reference to death, the increase accruing to any person or corporaContingent tion upon the extinction or determination of Highest Rate. Such charge, estate or interest, shall be deemed a transfer of property taxable under the provisions of this act in the same manner as though the person or corporation beneficially entitled thereto had then acquired such increase from the person from whom the title to their respective estate or interests is derived. When the property is transferred in trust or otherwise, and the rights, interest or estates of the transferees are wholly dependable upon contingencies or conditions whereby they may be wholly or in part created, defeated, extended or abridged, a tax shall be imposed upon said transfer at the highest rate which, on the happening of any of the said contingencies or conditions, would be possible under the provisions of this act, and such tax so imposed shall be due and payable forthwith by the executor, administrator, or trustee out of the property transferred; Provided, however, that on the happening of any contingency whereby the said property, or any part thereof, is transferred to a person or corporation exempt from taxation under the provisions of this act, or to any person taxable at a rate less than the rate imposed and paid, such person or corporation shall be entitled to a return of so much of the tax imposed and paid as is the difference between the amount paid and the amount which said person or corporation should pay under the provisions of this act. Such return of over-payment shall be made in the manner provided by section twelve of this act, upon the order of the court having jurisdiction. Estates in expectancy which are contingent or defeasible and in which proceedings for the determination of the tax have not been taken or where the taxation thereof has been held in abeyance, shall be appraised at their full, undiminished value when the persons entitled thereto shall come into the beneficial enjoyment or possession thereof, without diminution for or on account of any valuation theretofore made of the particular estate State Treasurer v. Trust Co. for purposes of taxation, upon which said estate in expectancy may have been limited. Where an estate for life or for years can be divested by the act or omission of the legatee or devisee it shall be taxed as if there were no possibility of such divesting." The status of this case, upon the point here involved, should be concisely outlined. The will of the deceased created a trust estate of $100,000, first for the benefit of the daughter during her life, and secondly to the wife absolutely, if the daughter predeceased the wife. If however the wife predeceased the daughter, then upon the death of the daughter the trust fund is to go (1) to the daughter's children or their descendants, if any such there be: (2) if no children or their descendants, then by will the daughter could name the person or persons to take, and (3) if the daughter had no children or their descendants, and failed by will to nominate or appoint a person or persons to whom the estate should go, then in that event, the trust fund is to go to such persons as might be entitled to inherit from the daughter under the laws of descent and distribution. Under these divers conditions, the probate court determined the amount to be paid "at the highest rate which, on the happening of any of the said contingencies or conditions, would be possible under the provisions of this act, and such tax so imposed shall be due and payable forthwith by the executor, administrator, or trustee out of the property transferred:" which rate the court found to be five and ten per cent under sub-division 5 of Section 3 of the act, which so far as applicable reads: "Where the person or persons to whom such property or any beneficial interest therein passes shall be in any other degree of collateral consanguinity, then as hereinbefore stated, or shall be a stranger in blood to the decedent, or shall be a body politic, association, institution, or corporation, at the rate of five per centum of the clear market value of such property or interest therein." This was on the theory that under her power of appointment by the will the daughter might and probably State Treasurer v. Trust Co. would name and appoint either a stranger to the blood, or some "body politic, association, institution or corporation." The value of the remainder was found to be $24,365. Of this sum $20,000 was taxed at five per cent, and $4,365 (after deducting $100 exemption) was taxed at ten per cent, making the total tax of $1,426.50, complained of in this appeal. I do not understand that it is urged that the value of the remainder was not properly and rightfully determined, nor that the rates fixed are not the proper ones under the statute. The real contentions are two-fold: (1) in the language of exception 2, supra, because the remaindermen "are absolutely unknown and impossible to determine at the present time," and (2) that to fix the tax now would make it a property tax, rather than a transfer tax, which property tax would be void under the Constitution. The latter is upon the theory that there can be no succession without the recipients of the gift or estate are in being at the time. Much is said in the briefs trying to draw a distinction between transfer of property, and succession to property. There can not be a transfer of property, whether by deed, gift or will, without there being a succession to property. Of course in a deed there must be a grantee in esse, before there is a succession, or even a valid deed, but not so in a will, or a trust created by will. We would have many void wills, if the divers contingent grantees or beneficiaries therein had to be in esse. By will, or by a trust created by will, the property passes, but upon such contingencies as may arise, under the terms of the instrument. There is a transfer and a contingent succession. But we need not go into details on this matter. Appellants say that Section 1 of the act provides that, "such tax shall be imposed when any person, association, institution or corporation actually comes into possession and enjoyment of the property." This they say precludes the assessment made in this case. There When State Treasurer v. Trust Co. are several answers to this contention. If this clause has reference to a case of this character, then it conflicts with Section 25 of the act which we have quoted supra, and Section 25, being the later expression of the legislative mind, would control. Section 25 covers this case, wherein it is said: "When the property is transferred in trust, or otherwise, and the rights, interests or estates of the transferees are wholly dependable upon contingencies or conditions whereby they may be wholly or in part created, defeated, extended or abridged, a tax shall be imposed upon said transfer at the highest rate which, on the happening of any of the said contingencies or conditions, would be possible under the provisions of this act, and such tax so imposed shall be due and payable forthwith by the executor, administrator, or trustee out of the property transferred." In that this tax is required to be paid "forthwith" it clearly conflicts with the portion of Section 1, upon which appellants rely, if that portion refers to the same subject-matter, which we doubt, and as we shall discuss. If it conflicts, Section 25 must be upheld as the later expression of the Legislature. [Black on Interpretation of Laws (2 Ed) p. 326.] Under well established rules of construction we should harmonize the several sections, if such a construction can be given. Going to Section 1 of the Act of 1917 (Laws 1917, p. 115) it will be noticed that the first clause imposes generally a tax upon the transfers of property, including transfers of property "in trust." This clause is followed by three specifications: (1) when the transfer is by will or by the intestate laws, by a resident of the State; (2) when the property is within the State, although the grantor is out of the State, and makes the transfer by will or the intestate laws of the State, or (3) when the transfer is made by a resident or a non-resident of the State, of property in the State, by grant, bargain, sale or gift made in contemplation of death to take effect after death, and wherein the transaction was had within two years prior to death. It is after this last sub-division State Treasurer v. Trust Co. that the words relied upon by appellants occur. They do not quote all of the words. In full the language is: "Such tax shall be imposed when any person, association, institution, or corporation actually comes into the possesion and enjoyment of the property, interest therein, or income therefrom, whether the transfer thereof is made before or after the passage of this act; provided, that property which is actually vested in such persons or corporations before this act takes effect shall not be subject to the tax." The last thing the Legislature had in mind before the use of this language was property transferred "by deed, grant, sale or gift" within two years prior to death. The proviso strongly tends to show that the whole of this clause was used with reference to property conveyed or transferred in that manner, and had no reference to transfers by will, as mentioned in the first part of the section. With this construction the two sections fit in and harmonize, because Section 25 but amplifies and adds to that portion of Section 1, which refers to transfers by will or the intestate laws. But as said: If Section 25 does conflict with Section 1, Section 25 should prevail. In Black on Interpretation of Laws, supra, it is said: "So, also, it is a general rule that where different parts or sections of the same statute are found to be in irreconcilable conflict, the latest in order of position or arrangement will prevail." If both of these sections réfer to the same subject there is irreconcilable conflict, and Section 25 must prevail. So that if the two sections can be construed so that both may stand, or if Section 25 supersedes Section 1, as to the taxation of transfers as is here involved, the assessment is proper in this case, under the statute. Our statute covering this particular subject (that covered by Section 25 of our Act of 1917) was either borrowed from New York or Illinois. [See Laws of New York for year 1899, vol. 1, pages 100-103.] There are states which postpone the tax upon remainders, but such |