N. Y. Rep.] Opinion of the Court, per FINCH, J. (Matter of Swift, 137 N. Y. 88.) A right of succession passed to the four living children of George at the death of testator. It came from him; it was transferred by him; taking effect at his death; and passed then or never. But the right itself, although vesting in the successors at once, had its own peculiar character. It could not ripen into possession or enjoyment until the death of the life tenants, and before that event was contingent solely as to the persons who should eventually take and the proportions to be observed. The legatees as a class were certain; the particular individuals were alone uncertain. But in just such a case difficulties arose in respect to the application of the Inheritance Tax Law, and received their solution in the case of Curtis (142 N. Y. 219). There, as here, a right of succession passed by the will, and at the date of the death of the testatrix, but was contingent as to the specific legatees; and it was seen that the immediate assessment and collection of a tax was impossible, because, as the law then stood, the succession of the children was exempt while the substituted succession of the nephews and nieces would be taxable; and we determined that the state must wait for the collection of its tax until the contingency was settled. I sought in that case to free the subject from the nice and difficult questions which attend the construction of wills, but, desirable as the result is, I am less confident than I was then of our ability to accomplish it. The case did not decide what is now contended on behalf of the respondent. In the counsel's brief it is described as holding that no beneficial interest passed, and that construction is reached by emphasizing half of a sentence with a neglect of the remaining half. The language used was "the state cannot establish that any beneficial interest will pass to persons in whose hands it will be taxable, and until it can show that vital and necessary fact its right to the tax cannot arise." To say that no beneficial interest passed into hands where it was taxable is very different from saying that no beneficial interest passed at all. The doctrine of the case and its manifest trend was that where the particular persons who were to have the beneficial possession were uncer Opinion of the Court, per FINCH, J. [Vol. 147. tain, the appraisal and collection must be adjourned until the uncertainty ended, but no new doctrine of the passing of the right of succession at a date later than that of the will was at all asserted. It is said, however, that the right of succession passing in remainder by the will was at best merely technical and nominal, and that the beneficial interest did not pass until the termination of the life estates. In one sense that is true. The right of succession to specific individuals might prove barren, and for that reason the claim of the state should be adjourned, and the law of 1892 fully recognizes and provides for such an adjournment, but a necessary and admissible delay in appraisal and collection is a very different matter from an assertion that no beneficial right of succession passed at all until after the decease of the life tenants. Next, the language of the act is relied on to effect the result, and it presents the real and difficult question requiring solution. Section one of the act imposes a tax upon all transfers of property to persons or corporations not exempt froin taxation in the cases thereafter specified. The first subdivision embraces transfers by will or by intestacy from residents of the state. The second covers similar transfers of property within the state where the decedent was a non-resident at the time of his death. So far the transfers take place necessarily at the moment of death, for the will on the one hand and the intestate laws on the other operate and speak from that date, and any special provision about that was needless. But then comes the third subdivision introducing a new case. It reads thus: "When the transfer is of property made by a resident or a non-resident when such non-resident's property is within this state, by deed, grant, bargain, sale or gift made in contemplation of the death of the grantor, vendor or donor, or intended to take effect in possession or enjoyment at or after such death." At this point are evidently referred to grants or gifts causa mortis; that is, those effecting the result of a will or of intestacy by a grant or gift made during life, and so by a different process. The subdivision then proceeds: "Such tax shall also be N. Y. Rep.] Opinion of the Court, per FINCH, J. imposed when any such person or corporation becomes beneficially entitled, in possession or expectancy to any property or the income thereof by any such transfer whether made before or after the passage of this act." If we give this language a general and broad application, making it cover not only grants or gifts causa mortis, but also transfers by will or intestacy, we give the act a retrospective operation, and subject to taxation rights of succession which accrued before the statute came into existence. Of course we ought not to do that upon any doubtful or ambiguous expression. The words of the statute have their full and natural force when applied to the new case, immediately preceding, of grants or gifts causa mortis. A grantor may A grantor may have conveyed and delivered his deed before 1892, in contemplation of death, and to take effect upon the happening of that event, or reserving a power of revocation, as well as the possession or enjoyment, during his lifetime, and the legislature certainly intended to put such a transfer on the same footing as one by will. It is of no consequence that the will was executed before the statute if the death occurs after, and the same rule was intended to be explicitly applied to grants causa mortis. Though the deed precedes the tax law, as the execution of the will precedes that law in a possible case, yet the transfer in both instances is to date from the one event which makes it operative and effective. So much the legislature certainly intended, and so much can be admitted without making the statute operate retrospectively. Did the legislature mean more than that? The argument for an affirmative answer rests somewhat upon the expression: "Shall be beneficially entitled in possession or expectancy." But these four children, at the death of the testator, were "beneficially entitled" to their remainders in "expectancy." An estate "in expectancy" is one where the right to the possession is postponed to a future period, and it is "beneficial" where the devisee takes solely for his own use or benefit, and not as the mere holder of the title for the use of another. So that the four children, as I have said, were beneficially entitled in expectancy, at the date of testator's death, to the estates which later came into their actual possession. In addition, it should be observed that the statute draws the distinction between the passing of the right of succession and the subsequent enjoyment, or termination of a defeasible quality. The right of the state attaches when the right of succession accrues, but may not be enforced in advance of that future possession and enjoyment, or indefeasible ownership, which identifies the persons who ought to pay. I think that is the meaning of the statute, although in some respects it is not free from ambiguity, and that we ought not to give it the retrospective effect for which the respondent contends. The order of the General Term and of the surrogate should be reversed, with costs, and the proceeding be dismissed. All concur. Judgment accordingly. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. 1. EXTRAORDINARY OYER AND TERMINER. It is not a valid objection to the jurisdiction of an extraordinary Oyer and Terminer that the proclamation of the governor convening it appointed "an extraordinary Court of Oyer and Terminer" instead of an extraordinary term of the Court of Oyer and Terminer (Code Civ. Pro. § 234), or that the proclamation designated the extraordinary Court of Oyer and Terminer to be held on the same day as that for which a regular term of the Court of Oyer and Terminer in the same county had, theretofore, been properly appointed by the justices of the Supreme Court. (Code Civ. Pro. § 232, 234.) 2. INDICTMENT- MOTION TO DISMISS-GRAND JURY. A motion was made to the trial court to dismiss an indictment for murder, on the ground, among others, that certain persons, not officers of the law, had issued and distributed to each person on the grand jury list a circular letter advising them as to their duties, and on other questions prejudicial to the defendant. The motion was based upon affidavits of the defendant and his attorney, and the only fact proved was the distribution to grand jurors of a circular signed by the chairman and secretary of a “Committee of Public Safety," reminding the jurors of the importance of their duties, stating some of their powers as evidenced by citations from the statutes, offering to further advise them if they would call at the headquarters of the committee of the methods by which each grand jury could do effective work, and stating that the efforts of the committee were not for political or sectarian effect. The motion was denied. Held, that, assuming that the Court of Appeals has jurisdiction to review the determination of the court below on this point, which is doubted, there was no ground set forth which was sufficient in law to justify the trial court in dismissing the indictment, and the defendant had no ground of complaint based upon the denial of his motion, it appearing that there was no proof that any man was on the panel who was not a legally constituted juror, or even an allegation that the evidence given before the jury was incompetent in its nature or insufficient, if believed, to warrant the indictment. A motion to postpone a 3. MURDER TRIAL-MOTION TO POSTPONE. trial for murder was made upon an affidavit of the defendant's attorney, which did not assert the absence of witnesses, but seemed to be based upon the suggestion that counsel wanted time, and that it was not customary to try an indictment for so grave an offense so soon after it was found. The motion was denied. Held, while doubting the existence of jurisdiction to review the decision of the trial court on the question, that the motion was properly denied. 4. MURDER - REVIEW OF FACTS. On appeal from a conviction of murder in the first degree the following facts, among others, appeared: In Febuary, 1894, at a party caucus for the nomination of alderman in one of the wards of the city of Troy, there was a disturbance between the friends of two candidates, the defendant, Shea, and certain companions working for one candidate, and two brothers, named Robert and William Ross, with others, being opposed. Shea, brandishing a revolver, took the ballot box from the chairman, who was a friend of his, carried it out of the building, and then gave it back to the chairman. Each candidate claimed the nomination and excitement on the subject prevailed up to the day of the charter election, March 6, 1894. At the election, the chief contest in the ward was over the office of alderman, for which the two candidates belonging to the same party were the only contestants. The evening before the election, Shea provided himself with a pistol, for the reason, as he said, that he always anticipated a row at an election. The Ross brothers and certain of their friends were at the poll, and were armed, some with pistols and some with clubs, for self-defense as was claimed. No disturbance occurred until Shea and his party appeared and engaged in a systematic plan of repeating, by false personation of legal voters. A contest was then precipitated and some fifteen or twenty shots were fired. William Ross was shot by one of Shea's party, named McGough. Robert Ross pursued McGough and they both fell; and, according to the witnesses for the prosecution, Shea came up behind Robert, while in a sitting or bending posture, and shot him fatally. Shea denied that he shot the deceased, and asserted that the whole evidence of the prosecution as to the affray, so far as he was concerned, was a deliberate falsehood, or at any rate a mistake; and he and his witnesses |