George Sutherland

“ The contention of the government is that the tax is imposed 'upon the power to transmit or the transmission of property by death; the shifting of the economic benefits in property is the real subject of the tax. * * * The property in question passed to the sisters under the general power of appointment exercised by the decedent by will within the meaning of the statute.' But this involves the obviously self-destructive conclusion that an unsuccessful attempt to effectuate a thing required by the statute is the same as its consummation. ”

“ It cannot be forced upon him against his will. He cannot be compelled to receive additional evidence of title when he does not want it, and does not need it because his title is perfect without it. His consent is necessary before the attempt to exercise the power becomes binding upon him the same as consent is necessary in making a contract or agreement. Declining or refusing to take has the same effect as incapacity to take, as in the case of a devise to a corporation which has no power to hold any more property because the statutory limit has been exceeded. ”

“ The exercise of a power which leaves everything as it was before is a mere form, with no substance.'
The opinion, page 244 of 182 N.Y., 74 N.E. 882, 884, points out that the power might have been exercised so as to have left the appointee with no title at all; but that in fact it was exercised so as to leave her the same title that she would have had if the power had not been exercised. The same is true here.
'An appointee under a power,' the court continued, 'has the right of election, the same as a grantee under a deed. * * * He can accept the title tendered or reject it, in his discretion. ”