Were the court to fail to find and declare the constructive trust thus created, Charles would be unjustly enriched by escaping payment of the tax. In the circumstances disclosed Henry had a beneficial interest in the property at the time of his death and Charles' succession to that interest made it subject to tax under the inheritance tax law of Oregon: In re Lowengart's Estate, 160 Or. 118, 84 P.2d 105. As I read the opinion of the court it does not hold, though it intimates that it might be held, that Charles was the trustee of a resulting trust.
Marshall County v. Rokke, 134 Minn. 346, 159 N.W. 791, Ann. Cas. 1918D 932. See In re Lowengart's Estate, 160 Or. 118, 135, 84 P.2d 105; Childers v. Brown, 81 Or. 1, 6, 158 P. 166; McCulloch v. State of Maryland, 17 U.S. (4 Wheat.) 316, 4 L.ed. 579, 603; and definitions in 28 Words and Phrases (Perm. ed.) 161 et seq., and especially at p. 217.
Millikin v. People, 106 Colo. 6, 102 P.2d 901. That also has been the uniform holding of all the courts of last resort which have passed upon similar statutes. Saltonstall v. Saltonstall, 276 U.S. 260, 48 Sup. Ct. 225, 72 L. Ed. 565; Blodgett v. Bridgeport City Trust Co., 115 Conn. 127, 161 Atl. 83; In re Lowengart's Estate, 160 Ore. 118, 84 P.2d 105; Orr v. Gilman, 183 U.S. 278, 22 Sup. Ct. 213, 46 L. Ed. 196; Cahen v. Brewster, 203 U.S. 543, 27 Sup. Ct. 174, 51 L. Ed. 310; Chanler v. Kelsey, 205 U.S. 466, 27 Sup. Ct. 550, 51 L. Ed. 882; Moffitt v. Kelly, 218 U.S. 400, 31 Sup. Ct. 79, 54 L. Ed. 1086; Nickel v. Cole, 256 U.S. 222, 41 Sup. Ct. 467, 65 L. Ed. 900. In the Saltonstall case, Mr. Justice Stone, in discussing a tax law of Massachusetts similar to that in the case at bar, makes the following statement found on page 269 of the reported opinion: "In this and earlier cases the Massachusetts court had held that the tax authorized by these statutes is a tax upon `succession' which includes the `privileges enjoyed by the beneficiary of succeeding to the possession and enjoyment of property'."
In re Estate of Perry, 111 N. J. Eq. 176, 162 Atl. 146; Koch v. McCutcheon, 111 N. J. L. 154, 167 Atl. 752; Hollander v. Martin, 123 N. J. Eq. 52, 195 Atl. 805; Blodgett v. Guaranty Trust Co., 114 Conn. 207, 158 Atl. 245; Bryant v. Hackett, 118 Conn. 233, 171 Atl. 664; Hackett v. Bankers Trust Co., 122 Conn. 107, 187 Atl. 653. The Supreme Court of Oregon, in the well-reasoned case of Brill v. Holman ( 160 Ore. 118, 84 P.2d 105), arrives at the same conclusion as that announced in the New Jersey and Connecticut cases, and also cites a number of other authorities. The factual situation in the Brill-Holman litigation is similar to that in the instant case.
The property involved in the case at bar is real property, tangible, definite and evaluated. The decisive question in Brill v. Holman, 160 Or. 118, 84 P.2d 105, also cited by plaintiff, was whether a new estate or interest accrued to potential surviving cestuis que trustent upon the death of the settlor, where, by the terms of the trust indenture, if his daughter should die before the settlor, the trust should terminate and the trustee should pay over the principal and any accumulation of income to the settlor; but if the daughter should survive the settlor, the trust should continue during the life of the daughter and thereafter until her youngest living child should attain the age of 21 years and after the death of the daughter and termination of trust, the principal should be distributed among the daughter's children. Speaking through Mr. Justice LUSK, we held that, where through the death of the settlor the remainder is freed of the possibility that it may revert to the donor and the trust be thereby terminated, the settlor's death effected a transfer which was the appropriate subject of a succession tax; or, in other words, because, un
The thing burdened is the right to receive. "We are not concerned here with a tax on the privilege of transmission, but with a tax on the privilege of succession. 'Our statute looks not to the estate or interest which was ended by death, but to the estate or interest which was newly created by death.' * * *" In re Lowengart's Estate, 160 Or. 118, 124, 84 P.2d 105, 107-108 (1938). If the impact of the tax is placed upon the right to receive, as stated above, what justification does Oregon have to impose a tax in this instance, where the beneficiaries' right to receive is based upon the protection provided by the State of Hawaii, rather than the State of Oregon? This is the basic question presented by the plaintiff and she finds support in three decisions for her view that Oregon lacks jurisdiction.
In order for the widow to be taxed upon the benefits at the date of the husband's death, it would be necessary to find that the interest in future benefits conferred upon the widow a presently ascertainable economic benefit. ( In re Lowengart's Estate, 160 Or. 118, 124, 84 P.2d 105 (1938), states the test of liability to tax to be "the shifting of the economic benefits and burdens.") Such a benefit exists where the wife has noncontingent proprietary rights in an insurance policy and its proceeds. (However, even in that situation, it is quite possible that a wife may be an absolute owner and beneficiary of a policy that provides her with rights which are so limited or otherwise restricted as to have no economic substance for tax purposes.