Is the tax assessed against the proceeds of the life insurance policies procured by Mrs. Harris upon the life of her husband an inheritance or succession tax or is it an excise tax imposed upon the proceeds of life insurance independent of the Inheritance Tax Law? Is it a valid tax either as a succession tax or as an independent excise tax? These are the questions presented on this appeal.
The plaintiffs take the position that the tax was assessed and collected as an inheritance or a succession tax under Article I, eh. 127, Public *531Laws 1931, and tbat as snob it is invalid and uncollectible. In tbis view we concur.
An inheritance tax is laid on tbe transfer or passing of estates or property by legacy, devise or intestate succession; it is not a tax on tbe property itself, but on tbe right to acquire it by descent or testamentary gift. Magoun v. Bank, 170 U. S., 283, 42 L. Ed., 1037; Minot v. Winthrop, 162 Mass., 113, 26 L. R. A., 259; S. v. Alston, 94 Tenn., 674, 28 L. R. A., 178; Hagood v. Doughton, 195 N. C., 811, 143 S. E., 841.
Adams, J., discussing tbe subject in tbe Hagood case, supra, says:
“ ‘Succession duty is a tax placed on tbe gratuitous acquisition of property which passes on tbe death of any person, by means of a transfer (called either a disposition or a devolution) from one person (called tbe predecessor) to another person (called tbe successor). Property chargeable with tbe tax is called a succession.’ Hanson’s Death Duties, 40 . . . tbe tax is a burden imposed by government upon gifts, legacies, inheritances, and successions,, whether of real or personal property passing to certain persons by will, by intestate law, or by any deed or instrument made inter vivos, intended to take effect at or after the death of the grantor. The tax is not imposed upon the property in the ordinary sense of the term but upon the right to dispose of it or to receive it — upon its transmission by will or descent. United States v. Perkins, 163 H. S., 625, 41 L. Ed., 287.”
Taxes of this nature rest in their essence upon the principle that death is the generating source from which the particular taxing power takes its being, and that it is the power to transmit, or the transmission from the dead to the living, on which such taxes are more immediately rested. Knowlton v. Moore, 178 U. S., 41, 44 L. Ed., 969; Hagood v. Doughton, supra. It is well settled that an inheritance tax is an excise tax upon the privilege of receiving property from a decedent by reason of his death. Martin v. Storrs, 277 Ky., 199; Werthan v. McCabe, 164 Tenn., 61, 51 S. E. (2d), 840.
The pertinent statute, Article I, ch. 127, Public Laws 1937, imposes a tax upon the transfer of property; (a) by will or intestacy; (b) by inter vivos transfer in contemplation of or intended to take effect in possession or enjoyment at or after death; (c) by a contingency operating at death, and (d) by power of appointment. Section 1. It is expressly provided that a failure to exercise a power of appointment shall constitute a transfer within the meaning of the act. Section 5. Then to make assurance doubly sure it is provided in section 11 that the proceeds of all life insurance policies payable at or after the death of the insured and whether payable to the estate of the insured or'to a beneficiary or beneficiaries named in the policy shall be taxable at the rates provided for in this article, subject to the exemptions in section 2. *532Provision is then made to allow the beneficiary credit for sucb premiums as were paid by bim.
Clearly then under the express terms of the statute something must pass to the living from the dead. There must be some shifting of economic benefits from the dead to the living. This means, when applied to insurance policies, that the person whose life was insured must have some legal interest, some incident of ownership, which passed to the living, or some power of appointment (such as the power to change the beneficiary) which terminated at his death. There must be a “transfer” as defined in section 1, upon which the tax operates. Thus it is written in the statute.
When the property passes through a failure to exercise a power of appointment or other incident of control or disposition of the benefit, termination of the power of control at the time of the death inures to the benefit of him who owns the property subject to the power and thus brings about, at death, the completion of that shifting of the economic benefits of property which is the real subject of the tax, just as effectively as would its exercise, which latter may be subjected to a privilege tax. Chase National Bank v. U. S., 278 U. S., 321, 73 L. Ed., 405.
It is upon this theory that such taxes are upheld. Eut here, Mrs. Harris was more than a beneficiary as that term is used in insurance policies. Having an insurable interest in her husband’s life, she procured the insurance. She was the contracting party and the beneficial owner of the policies. Harris possessed no power of control or appointment or any incident of transferable ownership. He had no right to change the beneficiary, no right to secure a loan on the policies, no right of assignment, no right of surrender. He was under no duty to pay the premiums. In no sense was he the contracting party. His death effected no “transfer” as defined in the act.
The thing taxed is the privilege of transferring and it is essential that there shall be a transfer, within the meaning of the statute, from decedent to the beneficiary by reason of death. There must be a transfer of something before there can be a tax upon its transfer and where the decedent had no interest in or control over the policy which could be transferred by his death its proceeds are not subject to our Inheritance Tax Law. See Chase National Bank v. U. S., supra; Bingham v. U. S., 296 U. S., 211, 80 L. Ed., 160 (1935); Industrial Trust Co. v. U. S., 296 U. S., 221, 80 L. Ed., 192 (1935); Walker v. U. S., 83 E. (2d), 103 (C. C. A. 8, 1936); Helburn v. Ballard, 85 F. (2d), 613 (C. C. A. 6, 1936); Grandin v. Heiner, 44 F. (2d), 141 (C. C. A. 3, 1930); amended 56 F. (2d), 1008 (C. C. A. 3, 1932); cert. den. 286 U. S., 56 (1932); Cook v. Commissioner, 66 F. (2d), 995 (C. C. A. 3, 1933); cert. den. 291 U. S., 660; Pennsylvania Co. v. Commissioner, 79 F. (2d), 295 *533(C. C. A. 3, 1935); cert. den. 296 U. S., 651; Chase National Bank v. U. S., 28 Fed. Sup., 947; In Re McGrath’s Estate, 191 Wash., 496, 71 Pac. (2d), 395; Werthan v. McCabe, supra; Dept. of Revenue v. Lanham's Executors, 278 Ky., 419, 128 S. W. (2d), 936; DeLeuil’s Executors v. Dept. of Revenue, 278 Ky., 424, 128 S. W. (2d), 938; Wyeth v. Crooks, 33 F. (2d), 1018 (D. C. Mo. 1928); Robinson v. U. S., 12 F. Sup., 550.
Nor did Harris, by tbe issuance of tbe policies, adopt a substitute for a testamentary disposition of any part of bis property. As be did not procure tbeir issuance be bas adopted no substitute method of transfer. Hence, there was no inter vivos gift such as is contemplated by tbe statute. Tbe payment of each premium constituted a completed gift. These tbe defendant does not seek to tax.
In tbe absence of clear language to that effect we will not assume that tbe Legislature intended to levy a succession or inheritance tax against property over which tbe deceased bad no control and possessed no incident of ownership. Such is not tbe intent and purpose of tbe act. Tbe language is expressly contra.
Tbe payment was made pursuant to and in fulfillment of a contract, tbe consideration for which bad been paid by or on behalf of Mrs. Harris. Whether tbe receipt thereof or tbe death of tbe deceased is a taxable event for that it brought about an accretion to tbe wealth of Mrs. Harris we need not now decide. Suffice it to say that tbe tax was unauthorized by statute. Its levy is an attempt to compel plaintiff to pay a tax on property passing in some manner from tbe deceased to Mrs. Harris, when, in fact, no property passed by will or under our intestate laws or by tbe exercise or failure to exercise any power of appointment. Nor did it pass by virtue of any contingency over which deceased bad any control.
But tbe Attorney-General contends that section 11 lays a tax on tbe receipt of insurance by tbe beneficiary and is not laid on any “transfer” from tbe decedent; that it is not conditioned on any transfer or tbe retention by tbe deceased of any incidents of ownership. It is, be says, .an independent excise tax laid upon tbe receipt of tbe proceeds of life insurance policies; tbe receipt is a taxable event and nothing more is required.
This section must be so construed in relation to other words and provisions of tbe statute as to carry out tbe intent of tbe Legislature. 'To proceed otherwise would do violence to generally accepted rules of interpretation. No such intent appears from tbe language of tbe statute and this interpretation is not permissible.
Tbe proceeds of insurance policies payable to tbe estate have always been considered a part of tbe estate, taxable as such — -and properly so. *534We may not assume that the Legislature intended to withdraw this substantial part of many estates from the Inheritance Tax Law. If not, then to hold as contended by the Attorney-General would be to give section 11 a twofold purpose and effect. It imposes an inheritance tax upon the proceeds of policies payable to the estate and upon the proceeds of policies payable to beneficiaries wherein the insured retains the right to change the beneficiary or other power of appointment, the right to assign, the right to borrow, the right to surrender or other incident of ownership; and it is an independent excise tax when and if the person whose life is insured has no such incident of ownership and no power of appointment. This interpretation is not warranted by the language used. The section is a part of the whole. It must be so construed. We, therefore, cannot concur in this view.
Even so, the section cannot be upheld as an independent excise tax on the right to receive the benefits of the policies. As such it would offend against the uniformity provision of the Constitution. Article V, section 3, Constitution of North Carolina. It is inseparably woven into the Act. The proceeds of the policies become a part of the estate for the purpose of taxation. The taxes are to be paid in accord with the schedule and at the rates set forth in the Act. The proceeds are to be added to the other distributive share of the recipient in the estate of the deceased. The executor or administrator is required to report the fund as a part of the estate and is made liable for the payment of the sum assessed. It is thus that the defendant has interpreted and applied its provisions.
It follows that the rate of taxation depends not upon the amount of insurance but upon the amount of insurance plus the value of such other property as may be received from the estate. As the rate is graduated, one taxpayer is held to one rate while another pays at an entirely different and higher rate on the same amount of insurance. The tax to be paid is to be determined by the size of the estate or of the legacy or distributive share. This produces an inequality and lack of uniformity of taxation. Tea Co. v. Doughton, 196 N. C., 145, 144 S. E., 701; Anderson v. City of Asheville, 194 N. C., 117, 138 S. E., 715; S. v. Williams, 158 N. C., 610, 73 S. E., 1000; Worth v. R. R., 89 N. C., 291.
For the reasons stated the judgment below is
Eeversed.
DeviN, J., not sitting.