238 Argument for Plaintiff in Error. tax, the act is not unconstitutional. New York Trust Co. v. Eisner, supra; Knowlton v. Moore, supra; Cahen. v. Brewster, 203 U. S. 543; Stockdale v. The Insurance Companies, 20 Wall. 323; Billings v. United States, 232 U. S. 261; Magoun v. Ill. Trust & Sav. Bank, 170 U. S. 283; Flint v. Stone Tracy Co., 220 U. S. 107, 145, 158, 169; Keeney v. New York, 222 U. S. 525, 536. The provisions effecting the collection of the tax do not affect its nature or render the act unconstitutional. There is nothing to indicate that any change in the nature of the tax was contemplated; none of the sections concern the imposition of the tax; they are merely details deemed proper for the effectual and practical operation of the law. Flint v. Stone Tracy Co., supra; In re Inman's Estate, 101 Ore. 182, 199 Pac. 615. The matter of who pays the tax is not primarily important. It is a matter which does not concern the Government. New York Trust Co. v. Eisner, supra; Edwards v. Slocum, 264 U. S. 61. State cases holding retroactive excise laws unconstitutional are not in point. In the first place, such cases are decided under constitutional restrictions applicable to States but not to Congress. A State may not so legislate, whether in the form of taxation or otherwise, as to impair a vested right. To do so is to violate the constitutional limitations which prohibit the State from impairing the obligations of a contract. It is doubtful that this limitation prevents the imposition of a retroactive excise by a State. Nickel v. Cole, 256 U. S. 222. Certainly there is no such limitation upon the power of Congress. Its power to tax is exhaustive, and if the imposition be a tax, then, although it impair the obligations of contracts or interfere with vested rights, it is, neverthless, valid. License Tax Cases, 5 Wall. 462; United States v. Singer, 15 Wall. 111; Knowlton v. Moore, supra; Patton v. Brady, 184 U. S. 608; Mc Cray v. United States, 195 U. S. Argument for Plaintiff in Error. 268 U.S. 27; Flint v. Stone Tracy Co., supra; Billings v. United States, supra; Brushaber v. Union Pac. R. R. Co. 240 U. S. 1; United States v. Doremus, 249 U. S. 85. The statute by its expressed words does not tax the transfer of policies. Furthermore, neither the policies nor their value are included in the gross estate. Their transfer, issuance, or assignment are entirely immaterial. What is included is the "amount receivable "-the money. Regardless of who owned the policies at the date of Mr. Frick's death, the moneys received were in substance the decedent's money, for it was the decedent's money that purchased the right to receive them, and that right was contingent upon the decedent's death. The amounts thus received were included under the statute, whether received by the beneficiaries or by the estate, the only difference being that when received by beneficiaries a part is exempt. The correct theory is that the decedent makes a gift, not of the policy but of his money (invested in insurance, it is true), and the gift is not complete until the money is received. For the purpose of measuring or levying a tax upon the transfer of the net estate, the moneys received by Mrs. and Miss Frick were a part of the Frick estate. They were accumulated or purchased by Henry C. Frick in his lifetime. The right to their possession and enjoyment was generated by his death precisely the same as the right to possession and enjoyment of a trust estate created by a testator to take effect upon his death is so generated. One can not receive money or property unless another part with it. A receipt is a part of a transfer. These moneys were in fact transferred after and because of Mr. Frick's death from the insurance companies to his wife and daughter. The statute does not say when the transfer shall occur, or from and to whom the moneys or property shall pass. It certainly does not contemplate that it shall pass from the decedent at the moment of and because of his death. 238 Argument for Plaintiff in Error. True, the transfer mentioned is that of the estate of the decedent, but the decedent's estate is that which is made up of the elements expressly designated in the statute. Knowlton v. Moore, supra. The tax is levied on neither the policies nor their value, nor the moneys received under the insurance contracts. It is levied "upon the transfer of the net estate," and the generating cause—the cause which justifies the tax and to which it is attached-is the death of the decedent. The provision of the act of 1918 (40 Stat., chap. 18, sec. 402(f), p. 1098) applies to the proceeds of policies issued before the passage of the act. Shwab v. Doyle, 258 U. S. 529; Union Trust Co. v. Wardell, 258 U. S. 537. It certainly can not be insisted with reason that the proceeds of policies issued before the enactment of the statute and made payable to the executors were not intended to be included in the gross estate. That being true, the date of the issuance of the policy is immaterial; the determinative event is when the money is received. The requirements that there shall be included. in the gross estate the amounts received by the executors as insurance and those received as insurance "by all other beneficiaries" in excess of $40,000, are in the same sentence, and there is not a word in the provision which contains a suggestion that a different rule was intended to be observed as to the two classes of funds derived from insurance. In fact, if the provision does not apply to insurance policies issued before the passage of the act, it could have had but little practical effect for a number of years after its passage. Such a construction would practically postpone for years its going into effect. Policies are issued only to those who are physically fit and have a long expectancy of life, and but few policies mature within the early years after their issuance. There are two lines of cases relating to the modification of the language of legislative acts by subsequent Argument for Defendants in Error. 268 U.S. legislation. The one line proceeds upon the theory that Congress intended to include a casus omissus from the previous act, and the other upon the theory that Congress intended to remove any doubt that might otherwise exist as to the inclusion of the case in the previous act. Apparently the distinction between the two lines of decisions is this: If the inserted word change the meaning of the language of the previous statute, or add something thereto when construed according to the obvious and usual meaning of its language, it will then be assumed that the inserted words were intended as an amendment; but if the words inserted accord with the plain and obvious meaning of the language of the previous statute, they are taken to define and make more certain its meaning. Bailey v. Clark, 21 Wall. 284; Johnson v. So. Pac. Co. 196 U. S. 1; Wetmore v. Markoe, 196 U. S. 68; United States v. Coulby, 251 Fed. 982; Matter of Reynolds' Estate, 169 Cal. 600; Abstract & Title Guaranty Co. v. State, 173 Cal. 691. Mr. George B. Gordon, with whom Messrs. John G. Buchanan, Miles H. England, and S. G. Nolin, were on the briefs, for defendants in error. The policies were property belonging, not to Mr. Frick's estate, but to the beneficiaries. Tyler, Administratrix, v. Treasurer and Receiver General, 226 Mass. 306; Elliot's Appeal, 50 Pa. 75; Anderson's Estate, 85 Pa. 202: Matter of the Transfer Tax upon the Estate of Andrew Carnegie, 203 App. Div. (N. Y.) 91; Neary v. Metropolitan Life Ins. Co. 103 Atl. 661, (Conn. 1918); Holden v. Insurance Co. 77 So. Car. 299; Matter of Parson's Estate, 102 N. Y. Supp. 168; In re Voorhee's Estate, 193 N. Y. Supp. 168; Lloyd v. Royal Union Mutual Life Ins. Co. 245 Fed. 162. See especially Washington Central Bank v. Hume, 128 U. S., 195. The reservation of a power by the donor which was never exercised does not affect the vesting of the estate 238 Argument for Defendants in Error. con in the donee. Jones v. Clifton, 101 U. S. 225; Matter of the Transfer Tax upon the estate of Andrew Carnegie, supra; Matter of Miller, 236 N. Y. 290; Dolan's Estate, 279 Pa. 582. An attempt was made in the court below to show that the existence of these options and powers, which were never exercised, prevented the "estate" from vesting in the beneficiary. We are at a loss to see what application this contention has to the case; for it is the estate of the beneficiary that is being taxed here. That estate, whether you call it vested or contingent, came into being when the contract which created the obligation to pay the policy to the beneficiary was made, and continued unmodified by the exercise of options or powers right down to the death of the insured, when the policy became payable at once to the owner of the estate. It is perfectly clear that Mr. Frick's so-called rights were no ditions of the vesting of the estate" (if we must use this inaccurate expression) but were simply conditional limitations. In authorities as old as Littleton we find the illustration that an estate to A if he returns from Rome is a conditional estate. It does not vest any right in him until and unless he returns from Rome; but an estate to A until B returns from Rome is a vested estate in A. It is simply a conditional limitation upon, not a conditional vesting of the estate. Bennett v. Robinson, 10 Watts, 348; Irvine v. Sibbetts, 26 Pa. 477; Cooper v. Pogue, 92 Pa. 254; McArthur v. Scott, 133 U. S. 340; Girard Trust Co. v. McCaughn, 3 Fed. (2d), 618. Mrs. Frick's right (estate) became her property (vested) when the policy was issued or the assignment thereof was made, and could only be divested by a subsequent event (the failure to pay a premium, or the exercise of a power), which never happened. In this connection it is well to bear in mind that the beneficiaries had the right to pay the premiums and thus to prevent the policies from lapsing. Neither these insurance policies nor the assignments thereof comply with the requirements of the Pennsyl |