In re Miller — 14 N.Y. St. Rep. 529

Majority

p. 529

In the Matter of Mary E. Miller, deceased, in re petition of Francis Lynch.

(Supreme Court, General Term, Second Department,

Filed February 13, 1888.)

Headnote

1. Collateral inheritance tax—Legacies to adopted children—Exempt ONLY WHERE TESTATOR DIED AFTER JUNE 25, 1887 — WHEN IT accrues—Laws 1885, chap. 483—Laws 1887, chap. 713.

The provision of Laws 1887, chapter 713, exempting legacies to adopted children of testator from the collateral inheritance tax levied thereon by Laws 1885, chapter 483, does not exempt such legacies left by persons dying between June 10, 1885, and June 25, 1887. The tax accrues and is payable at the death of the decedent.

p. 530

3. Same—Effect of Laws 1887, chap. 713, oh Laws 1885, chap. 483.

The portions of the original statutes of 1885 copied into the Laws of 1887, chapter 713, were not repealed thereby, and the new portions were not the law at any time prior to the passage of the amended act in June 10, 1887.

E. L. Fancher, for app’lt: William Vanamee, for resp’t.

This is an appeal from, an order of the surrogate of Orange county, denying a motion to vacate a former order made by him for the collection of a tax upon a legacy, under chapter 483, of the Laws of 1885.

Mary E. Miller, an inhabitant of Orange county, died on the 30th day of September, 1886, leaving a last will and testament, which was duly proved and admitted to probate by the surrogate of Orange county in October, 1886. On the 24th day of March, 1887, her executors procured an order from the surrogate, affirming an appraisement of the estate of the deceased, and assessing the amount of tax, respectively charging to the several devisees and legatees under her will, which was then supposed to be chargeable on the legacies and gifts, under the provisions of chapter 483, of the Laws of 1885._

Francis Lynch was an adopted son of the testatrix, and was a devisee and legatee under her will, and as such legatee and devisee his share of her estate amounted to $223,162.

In and by the order of the surrogate above mentioned, the tax chargeable thereupon amounted to $11,162.10.

That order was legal and proper, when it was made under the statute of 1885, before its amendment in 1887; but by chapter 713, of the Laws of 1887, the law of 1885 was amended so as to exempt from its operation any child adopted as such in conformity with the laws of the state of New York.

As Francis Lynch sustains that relation to the testatrix, the portion of her estate received by him under her will would have been exempted from the operation of the collateral inheritance tax law, if it had stood in 1885 as it was amended in 1887, and now it is claimed by Lynch that as the tax had not been paid over to the county treasurer before the adoption of the amendment of 1887, its payment cannot' be enforced against him, and he made an application to the surrogate to vacate the former order for its payment, which would have the effect to release him from the obligation to pay such tax.

That application was denied by the surrogate, and the case comes to us on.appeal from that order.

This appeal brings to us for examination and decision the effect of the amendment of 1887, upon the original statute. While it is plain that the petitioner sustained the relation

p. 531

of adopted son to Mrs. Miller, which would have exempted him from payment of the collateral inheritance tax under the amended statute of 1887, yet it by no means follows that he can escape the payment of the tax which was imposed and liquidated, and set apart before the amendment of 1887, which was passed in June, 1887, about four months after the imposition of such tax.

The portions of the original statute copied into the law of 1887, are not to be considered as repealed, but they are to be considered as the law from the beginning, and the new parts of changed portions of the statute are not to be taken to have been the law at any time prior to the passage of the amended act in June, 1887. Ely v. Holton, 15 N. Y., 595 ; Benton v. Wickwire, 54 Id., 226.

The exemption of a child adopted as such, was made for the first time in the act of 1887, and is to be understood as enacted at the time that law took effect. Moreover, under.the fourth section of chapter 483, of the Law of 1885, the tax imposed by that act, so far as it relates to the portion of Lynch, was due and payable at the death of the decedent, so that at the time the surrogate made and entered his first order, the tax was then payable, and it was then the right and the duty of the executors to pay the same to the county treasurer. Under the construction which the law of Í887 must receive as we have seen, the right to its payment was not diverted by that suit.

Our conclusion is, that the order of the surrogate should be affirmed with costs.

Barnard P. J., and Pratt, J., concur.