In re the Estate of Miller — 18 N.Y. St. Rep. 226

Majority

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In the Matter of the Estate of Mary E. Miller, Deceased.^[1]

(Court of Appeals,

Filed October 2, 1888.)

Headnote

1. Collateral inheritance tax—Adopted child not exempt under Laws 1885, chap 483.

The word “ children” as used in Laws 1885, chap. 483, which provides that all property, etc., which passed by will to any corporation or person other than “the father, mother, husband, wife, children, brother and sister, and lineal deseendents born in lawful wedlock * * * shall be subject to a tax,” etc., is not broad enough to cover the case of an adopted child.

3. Same—Laws 1887, chap. 713, a declaration that Laws of 1885, chap. 483, DID NOT EXEMPT ADOPTED CHILDREN.

The fact that such provision was made by the Laws of 1887, chap. 713, and the act of 1885, amended accordingly, Was a legislative declaration that the law did not as originally passed embrace the provisions which the later act supplies.

3. Same—Laws 1887, chap. 713, not retroactive—When a law is retroactive.

The rule is settled in this state that neither original statutes nor amendments have any retroactive force unless in exceptional cases the legislature so declare. The act of 1887 contains no such declaration, and has no other force than would be due to the provisions of an independent statute.

4. Same—Order fixing amount of tax—When . rights and liabilities FIXED UNDER.

The testatrix died in September, 1886; the will was admitted to probate in October, 1886, and executors duly appointed. On March 24, 1887, they procured an order from the surrogate’s court affirming an appraisement of the estate of the testatrix and assessing the amount of tax chargeable to her respective devisees, etc., under the act of 1885. Held, that so far as the order is concerned and the rights and liabilities of the parties thereunder, it was a transaction complete and closed before the passage of the amendatory act. That it was subject to modification or reversal on appeal, but every step had been taken which depended for its force upon the original act.

•5. Same—Practice—Notice of making order not necessary.

Where the appraisers were duly appointed and gave notice as required by law of time and place the appraisal would be made; and the appraisers filed the report as required by law, Held, that it was not necessary for notice to be given before the surrogate makes the order and fixes and assesses the value of the several estates and the tax to which the same is liable, etc.

Appeal from an order of the supreme court, general term, second department, affirming an order of the surrogate of Orange county which denied an application to vacate

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an order theretofore made by him under the collateral inheritance tax law of 1885. The facts are stated in the opinion.

Mr. Van Name, for resp’t ; the comptroller of the state of New York. Mr. Harris and Mr. Fancher, for the petitioner app’lt. Mr. Wentworth, of counsel, for the executor of George W. Parsons, deceased, and Mr. Hutchins, of counsel, for other parties interested in the question involved.

The question passed upon by the surrogate was brought before him by the petition of Francis Lynch, verified on the 29th of August, 1887, and upon notice to, among others, the executors of the will of Mary E. Miller, to the treasurer of the county of Orange and to the comptroller of the state of New York. By that petition it was stated that the testatrix died September 30, 1886, after providing by will that the petitioner should receive the income of a certain portion of her estate until he attained the age of twenty-eight years, and at that time have that portion of the body thereof “absolutely forever;” that the will was admitted to probate in October, 1886, and executors duly appointed; that on the 24th of March, 1887, they procured an order from the surrogate’s court affirming an appraisement of the estate of the testatrix and assessing the amount of tax chargeable to her respective devisees and legatees under the provisions of the “act to tax gifts, legacies and collateral inheritances in certain cases,” passed June 10, 1885, (chap., 483, of the Laws of 1885), and in which order the petitioner was named as legatee and devisee of a share valued at $223,261, and the tax chargeable thereon fixed at $11,163.10; that this tax has not been paid.

The petitioner asked that the order imposing it should be vacated as one made inadvertently, because (1) he was in his infancy adopted by the testatrix as her son, she having no children and never having been married, and that the relationship so assumed was at all times mutually acknowledged; (2) that by the act of the legislature, entitled “An act to amend chapter 483 of the Laws of 1885 ” (supra), passed June 25, 1887, he was placed in the category of persons who, by the terms of the collateral inheritance tax law, were exempted from its operation; (3) that the order was granted without the knowledge of or notice to the petitioner.

First. The act first referred to (chap. 483, Laws of 1885), and under which the order of March 24, 1887, fixing the tax upon the petitioner’s share of the estate of Mary E. Miller, was made, provided, so far as the questions before us are concerned, that all property or the income thereof which passed by will to any corporation or person other

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than “the father, mother, husband, wife, children, brother and sister, and lineal descendants born in lawful wedlock ” * * * “shall be subject to a tax to be paid to the treasurer of the proper county’’ * * * “for the use of the state, and that all administrators, executors and trustees shall be liable for such tax until the same shall have been paid, as in the act directed.” It then provided for an appraisement of the property at its fair market value at the time of the death of the decedent, and declared that the tax so adjusted “ shall be immediately due and payable to the treasurer of the proper county,” and together with the interest thereon be and remain a lien on said property until the same is paid.

To exempt the petitioner from the tax imposed by this act, it must be held that he is within its terms a child of the decedent, and this must he' maintained in face of the fact that the testatrix was at no time married and had no children. It is indeed conceded that he was some other person’s child, but was, it is said, the adopted son of the testatrix, and so by implication within the favored class. The statute seems to include by express words only such children as are bom “ in lawful wedlock, ” and if by construction the word “ children ” might under some circumstances be given a wide meaning, so as to bring in natural ■or illegitimate children, it could be carried no further. The persons actually described are such as might, under the statutes of descent or distribution, be entitled to share in the estate of a decedent, and neither the intention of the legislature, as declared in the words used, nor the ‘ ‘ fitness ■of the matter,” permit us to enlarge the enumeration.

The statute also excepts from its operation “ the wife or widow of a son, and the husband of a daughter,” thus adding to the list of relatives by blood, those, of affinity by ■marriage, and we find no pretense of authority for adding a class of persons who in no way are of kin to the testatrix and whose dependence upon her is the result of no marital contract or arrangement, but of mere choice. Therefore we cannot agree with the learned counsel who insists that “the word children,” as used in the act of 1885 (supra), is broad ■enough on its face to cover the case of an adopted child. The suggestion, if accepted, would add a species of relationship not specified in the statute. Its language is not ambiguous, and it would therefore be improper either to do this or tó go elsewhere to ascertain the intent of the legislature. Fordyce v. Bridges, 1 House of Lords Cases, 4; Johnson v. H. R. R. R. Co., 49 N. Y., 455 ; Benton v. Wickwire, 54 id., 236. The learned counsel contends that the actual adoption by the decedent of the petitioner as a son, his maintenance so long as she lived, and her continued bounty secured by the terms of her will, bring him within the rea

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son and equity of the statute, but if that be so, it constitutes no reason for controlling its language, although it might seem that the legislature would have provided for such a case, had their attention been directed to it. Brand ling v. Barrington, 6 B. & C., 475; McClusky v. Cromwell, 11 N. Y., 601 ; People ex rel. v. Woodruff, 32 id., 355. Moreover, the fact that such provision was made by the statute of 1887 (chapter 713), and the act of 1885 amended accordingly, must be regarded as a legislative declaration that the law did not as originally passed, embrace the provisions which the latter act supplies.

Second. Neither does the act of 1887 (supra), release the petitioner from liability under the order of March 24, 1885. That act was passed June 25, 1887,- and is entitled “An act to amend chapter 483 of the laws of 1885,” etc. (supra), and declares that “it is amended so as to read as follows:” It then repeats the act of 1885, with certain alterations, and among others adds in the first section to the words of exception above quoted, “ or any child or children adopted as such in conformity with the laws of the state of New York, or any person to whom the deceased, for not less than ten years prior to his or her death, stood in the mutually acknowledged relation of a parent.” It is assumed that the petitioner was so regarded by the testatrix, and as the tax has not, in fact, been paid over, or the order of the surrogate ■complied with, the appellant’s contention is that the act of 1887 (supra), not only makes any proceedings for its collection impossible, but relates back to the passage of the act of 1885, and in effect nullifies the proceedings which led to the order and annuls the order itself. The surrogate and the supreme court, however, thought the case made by the petitioner should be decided as if the act of 1887 had not been passed, and we are of that opinion. The rule is considered settled in this state that neither original statutes nor amendments have any retroactive force, unless in exceptional cases the legislature so declare.

The act before us contains no such declaration, and there seems no reason to give the amendment any other force than would be due to the provisions of an independent statute. The form of the amendment by declaring that the act of 1885, is so amended as to read in a given way, is not unusual and affords no reason for the appellant’s construction. It was so held in Ely v. Holton ( 15 N. Y., 595 ), where, referring to a similar formula, the court said, “the portions of the amended sections, which are merely copied without change, are not to be considered as repealed and again enacted, but to have been the law all along, and the new parts, or the changed portions are not to be taken to have been the law at any time prior to the passage of the amended act.”

The appellant calls our attention to that part of the act

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of 1887, which declares (section 25), that “all acts and parts of acts inconsistent with the provisions of this act are hereby repealed.” and contends that the statute of 1885, is to be dealt with as if the provisions inconsistent with those of the act of 1887, had never been enacted. This would not only give a different effect to the amendment than that required by the general rule above referred to, but would contravene the express language of the act of 1887, which declares that “it shall take effect immediately,” that is at the date of its passage, thereby excluding the idea that it should have a retrospective • operation or effect.. The appellant desires, however, to give it effect as of the date of the act of 1885. This construction would by force of the later statute, render void not only the order in question, which was valid when made, but all other similar proceedings, although regular when taken, and would as said in Ely v. Holton (supra), “lead to the grossest absurdities.” No legislative intent to that effect is discoverable in the act of 1887. The order was complete and perfect the moment it was made, subject to modification or reversal on appeal, but every step had been taken which depended for its force upon the original act. , So far as the order is concerned, and the rights and liabilities of the parties thereunder, it was a transaction complete and closed before the passage of the amendatory act, and being in that condition we may properly apply the words quoted in Butler v. Palmer ( 1 Hill, 335 ), “ the law itself may be disannulled by the author, but the right acquired by virtue of that law whilst in force, must still remain.”

The remaining objection in behalf of the appellant is that the order in question was made without notice to him. It appears, however, that the appraiser was duly appointed, and that he gave notice as required by law of the time and place the appraisal would be made. This being done, it was the duty of the appraiser to make a report to the surrogate (§ 13, act of 1885, supra) to be filed in. his office, and the statute declares (§ 13) from this report, the surrogate shall assess and fix the value of the several estates and “the tax to which the same is liable, and immediately give notice thereof by mail to all parties known to be interested therein.” There is no suggestion that this x was not done, and the presumption is that it was. An appeal might then have been taken by the beneficiary, in the mode prescribed by statute, if he was dissatisfied with the decision of the surrogate (§ 13, supra), but he did not move. Every necessary step for the imposition of the tax seems to have been taken before the passage of the act of 1887, and it is therefore unnecessary to consider what effect that act would have had upon an order made after its en-

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actment. That question was discussed in the Matter of Cager (13 N. Y. State Rep., 45), but is not now before us. We think the surrogate was presented with no legal reason for vacating his order of March 24, 1887, and that the supreme court did not err in affirming his refusal to do so. The order of that court, therefore, should be affirmed, with costs.

All concur.