2 N.Y.S. 428 | N.Y. Sup. Ct. | 1888
The executors, respondents, and one of the legatees under the will appear specially and move ,to dismiss the appeal on the ground that neither the district attorney nor the people has any standing to prosecute the same. The testator died April 12, 1886. The proceeding before the surrogate was instituted by the petition of the executors, filed July 20,1887, which alleged that all creditors had been paid, and set-out the names of ail persons interested in the estate as legatees, heirs at law, and next of kin, all of whom were collateral relatives. The usual citation was issued, returnable September, 19, 1887, and duly served on the persons so mentioned, to attend the judicial settlement of the executors’ account on a day named. The proceeding was adjourned from time to time until the 11th day of October, when the executors filed their final account, and the same was on that day judicially settled and allowed as filed. The record contains a notice dated September 27,1887, Signed by one George P. Ostrander, (who describes himself therein as an appraiser duly appointed by the surrogate of Niagara county,) directed to the legatees, to the effect that he will, on the 8th day of October, 1887, proceed to make an appraisement of the legacies in the will of the deceased, subjéct to tax by virtue of the provision of chapter 483 of the Laws of 1885 and the amendments thereto. The notice is accompanied by proof of service thereof by mail on the several legatees named in the will, and the official oath of the appraiser. The notice, proof of service, and oath were filed in the surrogate’s office October 8, 1887. The record contains no order for the appointment of such appraiser, nor evidence that an appraisal was made or any proceeding had under the notice above mentioned. The minutes of the proceeding of the settlement of the account of the executors contains the following entry: “D. E. Brong, district attorney of Niagara county, appears in person for the people, the people being thereby made a party to this accounting, and asks for an order directing payment of inheritance tax on behalf of the people, and objects to the account as presented. The petitioners object. Objection of district attorney overruled and his application denied, and exception. Account and vouchers filed and same settled and allowed as filed, and decree directed drawn accordingly.” The decree made on the day last mentioned adjudged that the account be settled and allowed as filed; that the executors were not liable to pay any “collateral tax” upon any legacy or property under the will of the deceased; that no deduction should be made by them for any such tax from any such legacy or property, but that all such legacies and property be delivered and distributed by them according to the provisions of the will, and as decreed, without the payment or deduction of any such tax. Erom that decree this appeal was taken by the district attorney, in the name of the people of the state of New York.
We think the motion of the respondents to dismiss the appeal must be denied. Assuming, as we shall, for the purpose of the consideration of this motion, that the collateral inheritance tax act of 1885, as amended by the act of 1887, was applicable to the case, the people was a proper party to the proceeding, if not as a creditor, at least as interested in the estate. By section 1 of both the acts mentioned the taxes thereby imposed were payable to the treasurer of the county, “for the use of the state;” by section 4 of both acts such taxes béeame “due and payable at the death of the decedent;” and by section 6
The question presented on the merits of the case relates to the effect of the act of 1887, (Laws 1887, c. 713,) amending the original act of 1885, (Laws 1885, c. 483.) Of course, the motion of the district attorney for an order for the payment of the tax was properly denied. The tax had not been assessed; the property had not been appraised. Section 13. There had been no citation to the persons interested in the property liable to the tax, to appear and show cause why said tax should not be paid. Section 16. Several things were wanting to give to the surrogate jurisdiction to order the payment of the tax. But the objection on the part of the people to the allowance of the executors’ account as filed, which showed payment of the several legacies without deduction of the tax, was overruled, we must suppose, upon the ground of the effect of the act of 1887. Upon that question it is the contention of the respondents that the act of 1885 was repealed by the act of 1887; that the taxós in question having accrued under the former act, the right of action therefor, not being saved by the repealing act, did not survive the repeal; and, consequently, that proceedings for the collection of such taxes cannot now be maintained. We think this contention cannot be supported. The act of 1887 does not purport to repeal the former act, except so far as it is inconsistent with the provisions of the latter. In terms it amends the former act “so as to read as follows.” The reading of the new act is in great part identical with that of the old; several of the amendments are merely verbal; several of them relate to mere details of procedure; the only changes of substance are in the provisions for the exaction of interest on taxes unpaid after a certain time, and for the exemption of certain classes of persons from the operation of the law. The latter amendment merely extends the exemption to the class of adopted children. It seems clear from the whole frame and tenor of the new act, as well as from its introductory words, that it was the intention of the legislar turc to amend, and not to repeal, the former act; and, outside the act itself, there is nothing in the history or character of the new scheme of taxation to
Decree reversed; proceedings remitted to surrogate of Niagara county, to proceed in accordance with the opinion, without costs of this appeal to either party. All concur.