An attempt to lay such a tax in New York was held void so far as the remainders had vested, the court remarking: "In the case before us it is an undisputed fact that these remainders had vested in 1863, and the only contingency leading to their divesting was the death of a remainderman in the lifetime of the life tenant, in which event the children of the one so dying would be substituted. If these estates in remainder were vested prior to the enactment of the Transfer Tax Act there could be in no legal sense a transfer of the property at the time of possession and enjoyment. This being so, to impose a tax based on the succession would be to diminish the value of these vested estates, to impair the obligation of a contract and take private property for public use without compensation.5

1

1 Miller v. McLaughlin, 141 Mich. 425, 104 N. W. 777, 12 Detroit Leg. N. 501. In re Forsyth, 10 Misc. Rep. 477, 32 N. Y. Suppl. 175. In re Travis, 19 Misc. Rep. 393, 44 N. Y. Suppl. 349, 2 Gibbons 91. In re Meyer, 83 N. Y. App. Div. 381, 82 N. Y. Suppl. 329. In re Hitchins, 43 Misc. 485, 89 N. Y. Suppl. 472 (vested through defeasible interest in remainder). In re Backhouse, 185 N. Y. 544, 77 N. E. 1181, affirming 110 N. Y. App. Div. 737. 96 N. Y. Suppl. 466. In re Langdon, 153 N. Y. 6, 46 N. E. 1034, 11 N. Y. App. Div. 220, 43 N. Y. Suppl. 419. Vanderbilt v. Eidman, 196 U. S. 480, 501, 25 S. Ct. 331, 49 L. Ed. 563. See, however, Cahen v. Brewster, 203 U. S. 543, 551, 27 S. Ct. 174. 51 L. Ed. 310, affirming 115 La. 378, 395, more fully reported, ante, s. 75.

Where the children of the testator took vested interests subject to open and let in after-born children on the one hand, and on the other hand subject to be defeated by death without issue, it is obvious that a right of succession to the estates in remainder passed at once on the death of the testator; and where the testator died in 1876, these remainder interests were not subject to the inheritance tax.

The court distinguishes In re Curtis, 142 N. Y. 219, on the ground that that case did not decide as claimed that such remainder interests were taxable when they became beneficial interests. It was claimed that the beneficial interests did not pass until the termination of the life estates. And the court says that in one sense that is true, but says that a necessary delay in appraisal as provided for by the statute of 1892 is a very different matter from the provision that no beneficial right of succession passed at all until after the death of the life tenants. To include such cases would give the statute a retrospective operation and subject to taxation rights of succession which accrued before the statute came into existence. 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. In re Seaman, 147 N. Y. 69, 41 N. E. 401, reversing 87 Hun 619. *Eury v. State, 72 Ohio St. 448, 454, 74 N. E. 650.

In re Cogswell, 4 Dem. Surr. (N. Y.) 248.

*Lacey v. Treasurer (Iowa, 1911), 132-N. W. 843.

'Per Bartlett, J., in In re Pell, 171 N. Y. 48, 55, 63 N. E. 789, 57 L. R. A. 548, 89 Am. St. Rep. 791, reversing 60 N. Y. App. Div. 286, 70 N. Y. Suppl. 196.

Sec. 86. Curative Act.

A curative act to heal a constitutional flaw in a statute may be retrospective in its operation,1 except possibly where it would operate on real estate, the title to which has passed to the devisee.2

1 Although a judgment restraining the collection of an inheritance tax on the ground that the statute was unconstitutional has been obtained, still the legislature may thereupon cure the defect in the statute by a retroactive amendment to it, and the supreme court may then reverse the judgment and permit the tax to be collected. A judgment is not of itself a contract in a constitutional sense so that its effect cannot be taken away by legislation. Ferry v. Campbell, 110 Iowa 290, 81 N. W. 604, 50 L. R. A. 92.

2 Herriott v. Potter, 115 Iowa 648, 89 N. W. 91.

CHAPTER XVII.

REPEAL OR AMENDMENT.

$87. What Law Governs.

§ 88. Amendment Extending Exemptions.

§89. Amendment without Repeal.

§ 90. Amendment does not Affect Validity of Tax already Imposed.

§ 91. Repealing Act a Continuation of Earlier Act.

§ 92. Under California Constitution Prohibiting Surrender of Public Rights.

§ 93. Implied Repeal by New Complete Act or Revenue Law.

§ 94. Repeal Prevents Subsequent Recovery of Taxes Due.

§ 95. Income Due after Repeal.

§ 96. Effect of Repeal after Appeal Taken.

97. Saving Clause.

Sec. 87. What Law Governs.

The tax is governed by the statute in force at the death of the testator, although this may be repealed1 or amended before the imposition of the tax. An attempted amendment by an unconstitutional statute does not affect the original act.3

1Quessart v. Canonge, 3 La. 560.

La. St. 1828, enacting a ten per cent tax, was repealed in 1830, but in the meantime the testator had died and the tax was held properly charged upon the estate. Whatever may be the effect of the repeal of a law in criminal matters, it leaves all civil rights acquired under the law unaffected. A tax cannot be assimilated to a forfeiture which presupposes an offence. Arnaud v. Arnaud,

3 La. 336.

2 Warrimer v. People, 6 Dem. Surr. (N. Y.) 211. In re Moore, 90 Hun 162, 35 N. Y. Suppl. 782.

Eastwood v. Russell (N. J. 1911), 81 A. 108.

Sec. 88. Amendment Extending Exemptions.

An amendment extending exemptions has no effect on an estate of one dying before the passage of the amending act unless expressly so provided.

Provident Hospital & Training Assn. v. People, 198 Ill. 495. Connell v. Crosby, 210 Ill. 380, 71 N. E. 350. In re Ryan, 3 N. Y. Suppl. 136. In re Thompson, 14 N. Y. St. Rep. 487. In re Arnett, 49 Hun 599, 18 N. Y. St. 576, 2 N. Y. Suppl. 428. In re Wolfe, 66 Hun 389, 29 Abb. N. Cas. 340, 21 N. Y. Suppl. 515, affirming 15 N. Y. Suppl. 539 (s. c. 137 N. Y. 205, 33 N. E. 156), where the assessment had been completed before the amendment.

The fact that the language in the statute of 1887 declares that the statute of 1885 "is amended so as to read as follows" is immaterial, as is also the fact that the statute of 1887 closes with the words "all acts and parts of acts inconsistent with the provisions of this act are hereby repealed." In re Miller, 110 N. Y. 216, 223, 18 N. E. 139, affirming 47 Hun. 394. See Kissam's Estate, 3 N. Y. Suppl. 135, 6 Dem. Surr. 171. Cf. In re Ryan, 3 N. Y. Suppl. 136. See also In re Stanford's Estate, 126 Cal. 112, 58 P. 462, 45 L. R. A. 788. Montague v. State, 54 Md. 481. See ante, s. 79.

Sec. 89. Amendment without Repeal.

An amendment in the absence of repeal operates to render the law continuous, with the result that a tax accrued under the former law remains unaffected.

Succession of Pritchard, 118 La. Ann. 883, 43 S. 537. In re Prime, 136 N. Y. 347, 355, 32 N. E. 1091, 18 L. R. A. 713, affirming 64 Hun 50.

Sec. 90. Amendment does not Affect Validity of Tax Already Imposed.

An amendment will not of itself affect the validity of a tax imposed under a prior act.

Provident Hospital & Training Assn. v. People, 198 Ill. 495. In re Cager, 111 N. Y. 343, 347, 19 N. Y. St. 497, 18 N. E. 866, affirming 46 Hun 657.

Estate of Stanford, 126 Cal. 112, 58 P. 462, 45 L. R. A. 788, is explained as not holding that the law in question provides that the state shall succeed as heir in certain classes of cases to five per cent of the property of the decedent. The real meaning and effect of the decision is that the law establishes the succession tax in certain cases and that the right of the state to such tax vests immediately upon the death of the ancestor or testator, and hence that the repeal of the law does not affect the right of the state to the tax. In re Martin's Estate, 153 Cal. 225, 94 P. 1053. In re Bowen's Estate (Cal. 1908), 94 P. 1055.

Sec. 91. Repealing Act a Continuation of Earlier Act.

So far as the later act is the same or similar to the earlier, the later is to be construed a continuance of the other and all provisions inconsistent are repealed.

In re Howard, 80 Vt. 489, 68 A. 513. See In re Jones, 54 Misc. 202, 105 N. Y. Suppl. 932.

Cal. St. 1905, c. 314, substantially enacted the provisions of the former law respecting the payment and collection of succession taxes, and was done with the knowledge of the existence of certain uncollected taxes and with the intent to continue in force a mode and means for their collection. And the court has the authority under this statute to order the executor to deduct from certain

legacies the amount of the tax, especially in view of St. 1905, c. 85, to the effect that the court must be satisfied that any inheritance tax has been paid before any decree or distribution of an estate is made. In re Bowen's Estate (Cal. 1908), 94 P. 1055.

The provision of s. 8 of the act of 1893, that the estate shall not be distributed until the administrator produces a receipt showing that a tax has been paid, is also found in s. 11 of the repealing act of 1905. This provision is therefore simply continued in force by the act of 1905, and therefore the estate of one who died before the repealing act was passed cannot be distributed until the tax is paid. After the repealing act went into effect the repealing act could not renounce the vested right of the state to the inheritance tax. In re Lander, 6 Cal. App. 744, 93 P. 202.

Sec. 92. Under California Constitution Prohibiting Surrender of Public Rights.

The California constitution prohibiting any surrender of property due the state prevents the operation of a repealing act upon it.

In re Stanford's Estate, 126 Cal. 112, 58 P. 462, 45 L. R. A. 788. In re Lander, 6 Cal. App. 744, 93 P. 202. In re Martin's Estate, 153 Cal. 225, 94 P. 1053. In re Bowen's Estate (Cal. 1908), 94 P. 1055.

The right of the state to the inheritance tax under the law of 1893 is immediately upon the death of the decedent a vested right which cannot be surrendered by a legislative act and no amendment or extension can take away this right. So a tax due before the statute of 1905 was passed can be collected after it is passed. Trippet v. State, 149 Cal. 521, 86 P. 1084, 8 L. R. A. (N. S.) 1210.

Sec. 93. Implied Repeal by New Complete Act or Revenue Law.

A statute purporting to cover the whole subject of inheritance taxes is a substitute and impliedly repeals the existing law.1 The Tennessee inheritance law of 1893 was repealed by the general revenue law passed later on the same day,2 and revived by the omission of inheritance taxes from the general revenue acts of 1895 and 1897.3

1Succession of Frigalo, 123 La. Ann. 71, 48 S. 652.

The court holds that the Virginia statute of 1856, imposing taxes, is a perfect tax law imposing all taxes intended to be imposed for the support of the government, but it omitted the tax on collateral inheritances for the purpose of discontinuing it, and therefore it repealed by implication the existing inheritance law. Fox v. Commonwealth, 16 Gratt. (Va.) 1.

Bailey v. Drane, 96 Tenn. (12 Pickle) 16, 33 S. W. 573.

Zickler v. Union Bank & Trust Co., 104 Tenn. 277, 57 S. W. 341.