fer under consideration was not made by death, but inter vivos and in contemplation of death only, and that when the transfer was made neither the federal nor the Nevada acts was in force. It is the settled law in this state, as well as in other jurisdictions, that when a transfer is made inter vivos its liability for tax is determined by the law then in effect, even though the tax be not payable until the death of the transferor. (Hunt v. Wicht, 174 Cal. 205, [L. R. A. 1917C, 961, 162 Pac. 639]; Estate of Felton, 176 Cal. 663, [169 Pac. 392]; Nickel v. State, 179 Cal. 126, [175 Pac. 641].) With this proposition as a premise, counsel for the state argue that upon the making of the transfer here involved there vested in the state the right to the tax imposed by the statute then in force, and that this right cannot be divested by a subsequent statute of another jurisdiction. This we may concede, but conceding it, the question still remains as to the method of computing the amount of the tax, the right to which so vested. This is the real question in the case. It is evident that if the tax is by our statute to be computed on the value of the property as of the date of transfer, then to permit this value to be reduced by the amount of taxes imposed subsequently by other sovereignties would be to reduce the tax from what our statute provides shall be collected. On the other hand, if our statute provides that the valuation is to be made as of the date of death of the transferor, then the valuation which our own statute calls for is one that must take into account valid burdens then existing upon the beneficial interests transferred and which have the effect of taking from the beneficiaries a portion of those interests, and it is wholly immaterial that such burdens were or were not imposed at or prior to the time of transfer. They exist at the time of death when the valuation is to be made, and reduce the value as of that time, and it is this value which our statute calls for. The question, therefore, presents itself as to whether under our own statute the tax in this case is to be computed upon the value of the beneficial interests transferred as of the date of transfer, or as of the date of the death of Miller, the transferor.

When the dates of transfer and death are the same, that is, in the usual case where the transfer is by death, the question does not arise, and the statute plainly contemplates a valuation as of the joint date of transfer and death. There

is no declaration in the statute as to what shall be the rule when the dates are not the same, i. e., when a taxable transfer is made prior to the death of the transferor. The statute, however, does contain a provision which closely approaches a declaration that the valuation of future, contingent, or limited estates, created by the transfer, shall be as of the date of death. Such estates were created by the transfer here involved. The beneficial interests under the trust were a life estate in Miller, with remainder over to his daughter and her husband for their lives and to the survivor of them for his or her life, with remainder over in fee. The provision of the statute referred to is the portion of section 5 reading (the italics being ours): "When any grant, gift, legacy, devise or succession upon which a tax is imposed by section one of this act shall be an estate, income, or interest for a term of years, or for life, or determinable upon any future or contingent event, or shall be a remainder, reversion, or other expectancy, real or personal, the entire property or fund by which such estate, income, or interest is supported, or of which it is a part, shall be appraised immediately after the death of the decedent, and the market value thereof determined, in the manner provided in section fifteen of this act...'

This provision is plainly one for the valuation of future, contingent, or limited estates. It appropriately requires an appraisal, both of the property as a whole out of which such estates are carved, and of the particular estates into which it is carved. Grammatically, the "market value thereof, as those words are used, would refer to the market value of the property as a whole, but a consideration of the purpose of the provision and of the character of the estates with which it is dealing makes it evident that it is the market values of the particular estates which are to be determined in the manner provided by section 15. It is these values upon which the tax must be computed, and the method of their ascertainent is what the section is seeking to provide for. Section 15 in turn appropriately provides that the value of future, contingent, or limited estates is to be determined in accordance with the mortality tables. The provision of section 5, particularly significant upon the point under discussion, is that the appraisal in such cases, whether the taxable transfer be by death or inter vivos, be made "imme

diately after the death of the decedent." This, of course, is literally a provision as to the time of actually making the appraisal, not as to the time as of which it shall be made. It is also true that it is possible, when a transfer has been made preceding the death of the transferor, to appraise estates dependent upon his death as of the date of transfer and not as of the date of actual death, although that death has already taken place. For example, in this case it would be possible to appraise the life estate of Miller's daughter and her husband, and of the subsequent remainder in fee, by going back to the date of transfer, disregarding the actual date of Miller's death and taking in place of it the date of his probable death, according to the mortality tables, and upon this basis computing the value of the life estate which he provided for himself and of the life estates and the remainder which were to follow. But such method would not be a natural or reasonable one. At the time when the statute requires the appraisal to be made, the death upon which the estates to be valued depend has actually occurred, and the natural and reasonable method of computing their value would be to take the actual date of death, rather than one determined by mortality tables, which might be very different and the use of which would produce a correspondingly different result from the existing and known actuality. We think it fairly certain, therefore, that when the statute provides that in such cases as the present the appraisal is to be made immediately after the death of the transferor, it contemplates and requires that the appraisal be on the basis of the actual date of his death and, therefore, of necessity, as of that date.

We should, perhaps, say that the conclusion so reached, based, as it is, on the particular provisions of section 5 as to the appraisal of future, contingent, or limited estates, does not involve a determination of the question as to whether it is the date of transfer or the date of death of the transferor as of which the appraisement should be made in cases of taxable transfers inter vivos which do not create estates of that particular character. That question is not involved here, and should not be determined. It is worthy of note, however, that in a case recently argued before us, where the question is involved, the position of the state, contrary to that which it must necessarily take here, was that the property was to be valued as of the date of death of the transferor,

and also that it was conceded on behalf of the transferee, who was contending that the valuation there should be as of the date of transfer, that if the estates created had been future, limited, or contingent estates, section 5 would require their appraisal as of the date of the death of the transferor. Since, then, the appraisal in this case must be made under our statute as of the date of Miller's death, and at that time the federal and Nevada statutes had gone into effect, and the net clear value of the beneficial interests transferred had been reduced by the amounts of any valid taxes under those statutes, it is this reduced value which our statute prescribes shall be taken as the basis of computation. It follows that it is not material that the transfer was made before the going into effect of the federal and Nevada statutes, and that the conclusion reached upon a discussion of the case as one of a transfer by death remains unaffected.

Judgment and order affirmed.

Shaw, J., Sloane, J., Wilbur, J., Lawlor, J., Angellotti, C. J., and Lennon, J., concurred.

[L. A. No. 6097. Department One.-January 18, 1921.] VICTORIA MEYER, Respondent, v. CAMILLE MEYER,

[1] DIVORCE - ADULTERY

Appellant.

COMPROMISE OF HUSBAND ACT OF WIFE -FINDING APPEAL.-In an action for divorce on the ground of the husband's adultery, where the court found against the defendant's contention that the plaintiff brought the defendant and alleged co-respondent together for the purpose of having the latter induce the defendant to commit adultery with her, and the evidence at most showed only facts from which a possible inference might be drawn in support of such contention, the finding is conclusive on appeal.

[2] ID. ASSIGNMENT OF COMMUNITY PROPERTY-PAYMENT OF SUM OF MONEY-MORTGAGE UPON PROPERTY-POWER OF COURT.-Under section 146 of the Civil Code, authorizing the court in granting a divorce for adultery to assign the community property to the respective parties in such proportions as it may deem just, the court has power to award to the wife, where a divorce is granted for the husband's adultery, a sum of money and make its pay

ment a charge on the community property by requiring the husband to give a mortgage for the amount.

[3] ID.-AWARD OF COMMUNITY PROPERTY TO WIFE-LACK OF ABUSE OF DISCRETION.-An award of eighteen thousand dollars to the wife as her share of the community property valued at twentyfive thousand dollars upon the granting of a decree of divorce for the husband's adultery is not an abuse of discretion where she was also given the custody of the seven minor children of the marriage.

[4] ID.

COUNSEL FEES-ALLOWANCE TO WIFE-CONTINUANCE OF APPLICATION TO TRIAL-PAST SERVICES.-Where in an action for divorce the wife before trial made an application for an allowance for counsel fees and the matter was continued by consent until the trial, the application must be taken as continued on the basis of the court making an allowance as of the time of the making of the application.

APPEAL from a judgment of the Superior Court of Los Angeles County. L. H. Valentine, Judge. Affirmed.

The facts are stated in the opinion of the court.

'Appel & Hatch, D. P. Hatch and Ansel Smith for Appellant.

Joseph Scott and A. G. Ritter for Respondent.

LAWLOR, J.-The plaintiff and defendant were wife and husband respectively. The plaintiff obtained an interlocutory decree of divorce on the ground of the defendant's adultery. As an incident of the divorce, the decree awarded the plaintiff eighteen thousand dollars as her share of the community property. The defendant appeals.

The defendant's first contention is that the evidence is not sufficient to sustain the finding of adultery. It is unnecessary to detail the evidence. Suffice it to say that its character was such as amply to sustain the finding. The defendant himself admitted conduct on his part of a very questionable character at best, and there was other evidence which, if believed, as it evidently was by the trial court, could hardly leave any doubt as to what took place.

[1] The defendant's second contention is that the plaintiff brought the defendant and alleged co-respondent together for the purpose of having the latter induce the defendant to