In re the Estate of Miller — 19 N.Y. St. Rep. 246

Majority

p. 246

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

(Surrogate’s Court, Orange County,

Filed October, 1887.)

Headnote

1. Collateral inheritance tax—Decree of surrogate’s court confirming—Yacating.

Decree of surrogate’s court assessing tlie tax upon property under the collateral inheritance tax, Laws 1885, chapter 483, is confirmatory of the right given hy the statute, and establishes in the people an additional right of recovery by virtue of the decree itself.

S. Same—Decree cannot be vacated.

Such a decree, which was properly made at the time it w.as made, canot afterwards, by a subsequent change of the law before the payment of the tax, be treated as having been inadvertently and improperly made.

The decedent died in September, 1886. His will was admitted to probate in Orange county in October of the same year. In March, 1881, the surrogate of said county made an order affirming an appraisment and making an assessment of the collateral inheritance tax under Laws of 1885, chap.

p. 247

483. Francis Lynch, an adopted son of the testator, was a devisee and legatee under the will, and his interest was appraised at over $200,000. The tax had not been paid by the executor to the county treasurer, at the time of the passage of Laws 1887, chap. 713. After the passage of said act the application was made in his behalf to the surrogate to vacate the order of March, 1887, as having been inadvertly made.

E. L. Fancher, for motion.

At the time this order was entered the law of 1885 was in full force; and there can be no question but that at that time the order was properly made, the legacy being then subject to the tax, and the legatee having had legal notice of the appraisement of the legacy, as appears by the files in this office.

By section 4 of that act the tax is made due and payable at the death of the decedent, that is, September 30, 1886. When the will of the testatrix was admitted to probate, and the rights of the legatees therein named were thereby established, then the right of the people of the state of New York to the tax became absolutely vested, and the right related back to the death of the testatrix. The order confirming the report of the appraisers and assessing the tax not only determined the amount of the tax, but closed the transaction as between the parties, the people and the legatee, by a decree of a competent court. This decree was confirmatory of the right given by the statute, and established in the people an additional right of recovery by virtue of itself.

If the testatrix had died since the passage of the law of 1887, clearly the legacy to this petitioner would not have been subject to this tax. There is nothing in the act which, in words, released the tax on this legacy, which had become due and payable under the law of 1885. Did the act of 1887 affect such tax in any way ?

It is claimed, on behalf of the petitioner, that, by the repealing clause of the act of 1887 and the enactment of section 1 of that act, the first section' of the law of 1885 was obliterated and section 1 of the law of 1887 substituted in its place, except as to transactions passed and closed; and that, inasmuch as the executors have not paid over the amount of the tax, that this court should vacate its former order directing the payment as having been inadvertently and improperly made, because, as he claims, his legacy is not taxable.

I am unable to see how, as to this legacy, the law of 1887 so supersedes the law of 1885, as to discharge a tax which had become due and payable by the latter, or how an order,

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which was properly made at the time it was made, can afterwards be, by a subsequent change of the law, treated as having been inadvertently and improperly made. The law of 1887, as to the class of persons to which the petitioner belongs, cannot be regarded as construing the law of 1885. It is a change of that law. It is not necessary to consider now what the effect of the passage of the law of 1887 has been upon the provisions for enforcing the payment of the tax; for, whether they remain or have been repealed, or the provisions of the law of 1887 apply, this does not determine the legality of this order.

The motion of the petitioner will, therefore, be denied.