repeal, so to affect a duty accrued under the prior law, although as to all new transactions, the later law will be referred to as the ground of obligation. Accordingly, the direct tax act of 1891,1 183 which amended, "so as to read as follows," the first section of the act of 1885,1 184 did not operate to prevent the subsequent assessment and collection of a tax on the estate of a decedent who died intermediate the act of 1887 and that of 1891.185

The liability to the tax of the estates of decedents dying previous to its passage is continued by Laws 1892,186 and proceedings instituted thereunder may be continued thereafter under the prior law. All proceedings instituted thereafter are regulated, however, by the last act, though the law in existence at decedent's death must govern as to rights accrued and liabilities incurred.187

So where an amendatory act was passed by the legislature, purporting to exempt adopted children theretofore liable, which, it was declared, should "take effect immediately," and subsequent to its passage, but before being ap proved by the executive, a decree was made taxing adopted children, it was held that the decree was not vitiated by the amendatory statute, as it did not become a law at the time of its passage, but only subsequently, and from the time of its approval by the executive.188

183 Laws N. Y. 1891, c. 215.

184 Laws 1885, c. 483.

185 In re Prime (1893) affirmed 64 Hun, 50, 18 N. Y. Supp. 603, and 136 N. Y. 353, 32 N. E. 1091, distinguishing Ely v. Holton, 15 N. Y. 595.

186 Chapter 399.

187 In re Richardson, N. Y. Law J. Jan. 31, 1893; In re Sterling's Estate (1894; Surr.) 30 N. Y. Supp. 385, citing In re Miller, 19 N. Y. St. Rep. 246.

188 In re Kemeys, supra; In re Howe, 48 Hun, 236, affirmed 112 N. Y. 103, 19 N. E. 513; In re Hughes, 2 N. Y. Law J. (July 27, 1889) 817; In re Dreyfous, supra.

Where, however, the assessment under the prior law was made after the passage of the act relieving adopted children, or those standing in the "mutually acknowledged relation," they are not subject to the tax.189

So, where adopted children were exempted by a statute 190 which was declared to be amendatory of the prior law, it was held not retroactive, and that such adopted children as were liable under the former act 191 continued so liable, and the rights of the state were not affected by the fact that the tax had not been paid at the time of the passage of the amendatory act.192

The New Jersey act 193 does not affect real estate devised previous to the passage of the act.194

Nor does such a statute affect the vested rights of the state against such children theretofore liable, although proceedings to collect the tax were not commenced until after the amended statute went into effect.1

195

It seems now, however, that all adopted children and

189 In re Thomas, 3 Misc. Rep. 388, 24 N. Y. Supp. 713, distinguish. ing In re Kemeys, supra.

190 Appendix, Laws 1887, c. 713, § 1. See, upon this subject, chapter 3, § 6.

191 Laws 1885, c. 483.

192 In re Miller, supra, affirming 47 Hun, 394; In re Brooks, 6 Dem. Sur. 165; In re Spencer's Estate (Surr.) 4 N. Y. Supp. 395. 193 Laws 1894, c. 210, Appendix, II.

194 In re Dobermiller, 17 N. J. Law J. 378.

195 In re Kemeys (per Barrett, J., reviewing cases) 56 Hun, 117, 9 N. Y. Supp. 182, distinguished in Re Thomas, 3 Misc. 388, 24 N. Y. Supp. 713. For other authorities, see In re Arnett, 49 Hun, 599, 2 N. Y. Supp. 428; In re Kissam's Estate (Surr.) 3 N. Y. Supp. 135; In re Ryan's Estate (Surr.) 3 N. Y. Supp. 136; In re Cager, 111 N. Y. 347, 18 N. E. 866; In re Brooks, 6 Dem. Sur. 165; In re Hendricks' Estate (Surr.) 3 N. Y. Supp. 281; In re Thompson, 6 Dem. Sur. 211; In re Shaw's Estate, N. Y. Daily Reg. April 3, 1889. Contra, In re Cager, 46 Hun, 660, overruled in 111 N. Y. 347, 4 N. E. 713; In re Spencer's Estate (Surr.) 4 N. Y. Supp. 395.

196

others in the same class are exempted in New York,' where no assessment was made against them, by order of the surrogate, at the time of the passage of the last-named act. 197

So the act of 1890,198 relieving certain charitable and religious institutions from the tax, being clearly prospective in its operation, and applicable only to future cases, a tax due before the act went into operation 199 may still be enforced.200

Where, however, the statute under which it is sought to collect the tax has not merely been amended, but absolutely repealed, and the remedy taken away, all proceedings under the prior act fall, and the tax cannot afterwards be collected.201

196 Laws N. Y., Appendix, I. a, § 25, as amended by Laws 1889, c. 479. The children of such adopted children are, however, not within the exemption of the statute. In re Bird's Estate (Surr.) 11 N. Y. Supp. 895. In Connecticut they are relieved by express pro vision of the statute, supra, chapter 3, § 34, subd. g.

197 Laws 1889, supra; In re Kemeys, 56 Hun, 117, 9 N. Y. Supp. 182; In re Hughes' Estate, supra; In re Thorne's Estate, N. Y: Law J, Jan. 21, 1890; In re Thomas, supra.

198 Chapter 553, Appendix, I. b.

199 June 7, 1890.

200 Sherrill v. Christ Church of Poughkeepsie, 31 N. Y. St. Rep. 896, 121 N. Y. 701, 25 N. E. 50, reversing In re Van Kleeck, 55 Hun, 472. See, also, Estate of Minturn, 3 N. Y. Law J. 804. As to the effect of the act of Pennsylvania of 1887 upon prior statutes of that state, see Commonwealth's Appeal (Fagely's Estate) 128 Pa. St 612, 18 Atl. 386; In re Del Busto's Estate, 23 Wkly. Notes Cas. 111; Commonwealth's Appeal (Cooper's Estate) 127 Pa. St. 435, 17 Atl. 1094; Commonwealth's Appeal (Bittinger's Estate) 129 Pa. St. 338, 18 Atl. 132; Mellon's Appeal, 114 Pa. St. 570, 8 Atl. 183; In re Banks' Estate, 5 Pa. Co. Ct. R. 614; In re Goldstein's Estate, 16 Phila. 319; Wayne's Estate, 2 Pa. Co. Ct. R. 93; Fox v. Com., 16 Grat. 1.

201 In re Arnett, 49 Hun, 603, 2 N. Y. Supp. 428; Knox v. Baldwin, 80 N. Y. 610; Nash v. Bank, 105 N. Y. 243, 11 N. E. 946; In re Prime, 136 N. Y. 347, 362, 32 N. E. 1091; People v. Supervisors, 67

Where, however, there is a saving clause as to taxes accruing under vested interests prior to the repealing act, such taxes may be assessed and collected afterwards.203

Where the decedent died before the repealing act, and the legatee or successor did not come into possession, nor his rights accrue, until after the repealing act went into effect, it seems the tax is not saved by the saving clause. 203

N. Y. 109; Bailey v. Mason, 4 Minn. 550 (Gil. 430); Dunwell v. Bidwell, 8 Minn. 34 (Gil. 18); In re North Canal Street Road, 10 Watts (Pa.) 351; Cooley, Tax'n (2d Ed.) p. 18; Fox's Adm'r v. Com., 16 Grat. 1; Eyre v. Jacob, 14 Grat, 422. See Quessart v. Canonge, 3 La. 560, and Arnaud v. Holland, Id. 337, where it was held that where the tax becomes due before the repealing act the rights of the state under the law existing at the time remain unaffected by the repealing act.

202 Act Cong. 1870 (16 Stat. 261, § 17), repealing the legacy and succession acts, contained a clause saving "all taxes properly assessed or liable to be assessed, or accruing under the provisions of former acts or drawbacks, or which may hereafter accrue under said acts," etc. See, construing this section, May v. Slack, 16 Int. Rev. Rec. 134, Fed. Cas. No. 9,336; U. S. v. Townsend, 8 Fed. 306; Clapp v. Mason, 94 U. S. 589.

203 Mason v. Sargent, 104 U. S. 689. See Id., 23 Int. Rev. Rec. 155, Fed. Cas. No. 9,253; Sturges v. U. S., 117 U. S. 363, 6 Sup. Ct. 767; Helman v. U. S., 15 Blatchf. 13, Fed. Cas. No. 6,341; U. S. v. New York Life Ins. & Trust Co., 9 Ben. 413, Fed. Cas. No. 15,873; Clapp v. Mason, supra; U. S. v. Hazard, 8 Fed. 380; U. S. v. Kelley. 28 Fed. 845; U. S. v. Brice, 8 Fed. 381. See U. S. v. Rankin, Id. 872, where the various conflicting decisions under the legacy and succession acts of congress are considered by Treat, District Judge. And see, generally, Com. v. Standard Oil Co., 101 Pa. St. 149.

(424)

APPENDIX OF STATUTES.

I. NEW YORK.1

(a) Laws 1887, c. 713, with Amendments to 1892.

(b) Laws 1890, c. 553, as to Charitable Corporations.

(c) Laws 1892, c. 169.

(d) Laws 1892, c. 443.

(e) "Transfer Tax Act," Laws 1892, c. 399, with Amendments

(a) Laws 1891, c. 425, with Amendments to 1895.

VII.

VIII.

IX.

(a) Laws 1893, p. 14, as Amended by Laws 1894, p. 169.
(b) Laws 1894, p. 166.

CONNECTICUT.

MARYLAND.

CALIFORNIA.

X. ILLINOIS.

1. NEW YORK STATUTES.

(a) LAWS 1887, CH. 713, WITH AMENDMENTS TO 1892. An act to amend chapter four hundred and eighty-three of the Laws of Eighteen Hundred and Eighty-Five, entitled "An act to tax gifts, legacies and collateral inheritances in certain cases."

Passed June 25, 1887; three-fifths being present.

1(The statute now in force in the state of New York is chapter 399 of the Laws of 1892, known as the "Transfer Tax Act." By section 23 of this act, most of the earlier statutes have been repealed as follows: Laws 1885. c. 483; Laws 1887, c. 713; Laws 1889, c. 307; Laws 1889, c. 479; Laws 1891. c. 215. For the benefit of the profession and in order that all the earlier statutes may be readily consulted, it has been deemed prudent to retain these statutes, beginning with that of 1887.)