¶1The statute makes the passing of property by will subject to a tax when the beneficiary, as in this case, does not come within its exemptions. Laws 1907, c. 68, s. 1. It provides that "all property within the jurisdiction of the state, real or personal, or any interest therein, . . . which shall pass by will . . . to any person, absolutely or in trust, [except to the exempted class] shall be subject to a tax of five per cent of its value for the use of the state." It appears in the case that French made a will bequeathing and devising to Stone property as to the devolution of which the tax is sought to be imposed, that he did this pursuant to an agreement, that the will was proved and allowed, and that Stone accepted the provisions of the will and took title to the property thereunder.
¶2The contract was to bequeath and devise the property to Stone. It was not a contract to convey, but to make a will in his favor; and French having made the will, and Stone having accepted its provisions and taken title to the property thereunder, the transmission was by will and is subject to the tax. Matter of Kidd, 188 N.Y. 274, 276. It can make no difference that there was a valid consideration for the contract to transfer the property by will. The imposition of the tax is not limited to property passing gratuitously by will, but extends to "all property" so passing. If the legislature had intended to limit the imposition of the tax to property passing gratuitously, it could easily have said so; but by providing that all property passing by will should be subject to the tax, it manifested an intention not to so limit it. State Street Trust Co. v. Treasurer,209 Mass. 373; Matter of Gould, 156 N.Y. 423.
¶3The same intention is manifested in the further provisions of section 1, which subject to the tax "all property . . . which shall pass . . . by deed, grant, sale, or gift, made or intended to take effect in possession or enjoyment after the death of the *202 grantor." The terms "deed" and "grant" do not indicate that the transfers must be gratuitous to be subject to the tax. Transfers by such methods of conveyance are usually based upon a consideration, and a "sale" always is. The only limitation on the imposition of the tax upon such transfers, gratuitous or otherwise, would seem to be when they are not made or intended to take effect in possession or enjoyment after the death of the grantor, bargainor, or donor.
¶4Case discharged.
¶5June 3, 1913, the justices concurred in the foregoing opinion prepared by Mr. Justice Bingham, but invited argument on the question of the constitutionality of so much of section 1, chapter 68, Laws 1907, as taxes property passing other than by will or inheritance.