and recovering interest upon the tax to the date of payment.1

§ 4. Retroactive, amendatory and repealing statutes.-The question as to whether estates vesting and undistributed before the passage of the law become subject to taxation, seems to be purely one of legislative intent.

In England the "Succession Duty Act" is in many respects plainly retroactive as well as prospective, in its operations, but in this country retroactive statutes are not generally favored and the statutes are held to apply only to property passing upon the death of a decedent occurring after the particular statute went into effect. Acts, however, which impose a tax upon estates vesting or undistributed before such acts became operative, though retroactive, are held to be constitutional.2

But a retroactive operation will not be given by construction so as to subject to the tax estates passing prior to the passage of the act, though they be subject to life-estates which do not fall until after the statute became operative."

1 Com's. App. (Fagely's Est.), 128 Pa. St. 603; s. C. 24 W. N. C. 473; 18 Atl. 386. As to effect of receipt in full for tax given by State, see Chapter VII, p. 208; sec. 1, supra, p. 223, and Brewer's Est. 16 P. L. J. N. S. 114; 15 Id. 435; Com's. App. supra; Matter of Keenan, 1 Con. Surr. Rep. 226; Matter of Vanderbilt, 10 N. Y. Supp. 239.

2 Chapter II, sec. 14; Carpenter v. Penn. 17 Howard, 456; Atty.-Gen. v. Middleton, 3 H. & N. 125; Short's Est. 16 Pa. St. 66.

3 Folsom v. U. S. 21 Fed. Rep. 37; Blake v. McCartney, 4 Cliff. 101; Succession of Oyon, 6 R. La. 504; Succession of Dey

Under this rule it has been held in New York that property conveyed by irrevocable deed of trust to trustees to pay the income to the grantor during life, with remainder over to collateral heirs after her death, which was executed and took effect before the passage of the act, is not liable to taxation though the grantor died afterwards.1

So as the tax is generally imposed upon the estate owned by the decedent passing at the time of death, interest or income in the nature of increase or accretions to the estate subsequently arising is not liable. 2

3.

There are, however, cases which seem to be exceptions to this rule as in the case of powers of appointment not executed until long after testator's death; 3 and in England, under the peculiar provisions of the statute, a tax has been allowed upon the subsequent increase in value of property already once assessed.*

So generally the rate of the tax is that imposed or fixed at the time the estate passed and became subject to the tax, and not that imposed by subsequent statute.5

roud, 9 Id. 357; Carpenter v. Penn. supra; Matter of Cogswell, 4 Dem. 248; Matter of Hendricks, 1 Con. Surr. Rep. 301.

1 Matter of Hendricks, supra.

Miller's Est. 45 Leg. Int. 175; Com. v. Freedley, 21 Pa. St. 33-36; Com's. App. (Cooper's Est.), 127 Pa. St. 435; affg. 5. P. C. R. 275; Atty. Gen. v. Sefton, 11 H. L. Cases, 257-269.

738.

3 Chapter VI, sec. 5; see Matter of Stewart, 30 N. Y. St. Rep.

See Chapter V, sec. 5; Atty. Gen. v. Dardier, L. R. 11 Q. B. D. 16.

5 Com. v. Eckert, 53 Pa. St. 102; Com. v. Smith, 20 Id. 100; King's Est. 11 Phila. 26; James' App. 2 Del. Co. Rep. 164.

In New York by statute, and doubtless in many other States, the common law rule that a statute was deemed to date and take effect as of the first day of the session at which it was passed,' is now abrogated; * and in that State, every law, unless a different time shall be prescribed therein, commences and takes effect throughout the State on and not before the 20th day after the day of its final passage as certified by the Secretary of State.

8

This provision has been considered in connection with acts imposing collateral inheritance taxes, and it has been held that although the act of 1885 contained the words: "After the passage of this act," the law did not take effect until twenty days after its passage, and that therefore property passing by will of one dying after the passage of the act but prior to the day upon which it took effect was not liable to the tax.*

With regard to amendatory statutes the rule seems to be general that they have no retroactive force upon taxes already due unless clearly intended by the legislature, as 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

1 Latless v. Holmes, 4 D. & E. 660; Panter's Case, 6 Bro. P. C. 486.

2 Matter of Kemeys, 56 Hun, 117; s. c. 9 N. Y. Supp. 182. See, also, Matter of Howe, 48 Hun, 236; affd. 112 N. Y. 103. I N. Y. Rev. Stat. 7th ed. p. 433, sec. 12.

3

Matter of Howe, supra; overruling Matter of Chardavoyne, 5 Dem. 466. Matter of Cager, 46 Hun, 660 is also overruled on this point. See 111 N. Y. 347, and Matter of Kemeys, supra.

or changed portions are not to be taken as the law at any time prior to the passage of the amended act.1

So where an amendatory act was passed by the legislature, purporting to exempt adopted children theretofore liable which it was declared should "take effect immediately" and subsequent to its passage, but before being approved by the executive a decree was made taxing adopted children, it was held that the decree was not vitiated by the amendatory statute, as it did not become a law at the time of its passage, but only subsequently and from the time of its approval by the executive.2

3

So where adopted children were exempted by a statute which was declared to be amendatory of the prior law, it was held not retroactive and that such adopted children as were liable under the former act1 continued so liable and the rights of the State were not affected by the fact that the tax had not been paid at the time of the passage of the amendatory act.5

Nor does such a statute affect the vested rights of the State against such children theretofore liable although proceedings to collect the tax were not com

1 Matter of Arnett, 49 Hun, 599; Matter of Miller, 110 N. Y. 223; citing Ely v. Holton, 15 N. Y. 595.

2 Matter of Kemeys, supra; Matter of Howe, 48 Hun, 236; affd. 112 N. Y. 103; Matter of Hughes, N. Y. Law Jour. July 27, 1889.

3

Appendix, Law of 1887, ch. 713, sec. 1. See upon this subject, Chapter III, sec. 6.

4

L. 1885, ch. 483.

Matter of Miller, supra; affg. 47 Hun, 394; Matter of Brooks, 6 Dem. 165; Matter of Spencer, 21 N. Y. St. Rep. 145.

menced until after the amended statute went into effect.1

It seems now, however, that all adopted children and others in the same class are exempted in New York, where no assessment was made against them by order of the surrogate at the time of the passage of the last named act.8

So the act of 1890, relieving certain charitable and religious institutions from the tax being clearly prospective in its operation and applicable only to future cases, a tax due before the act went into operation may still be enforced."

5

' Matter of Kemeys (per Barrett, J., reviewing cases), 56 Hun, 117; 9 N. Y. Supp. 182. For other authorities see Matter of Arnett, 49 Hun, 599; Matter of Kissam, 6 Dem. 171; Matter of Ryan, 18 N. Y. St. Rep. 992; Matter of Cager, 111 N. Y. 347; Matter of Brooks, 6 Dem. 165; Estate of Hendricks, 1 Con. Surr. Rep. 301; Matter of Thompson, s. c. Warrimer v. The People, 6 Dem. 211; Est. of Shaw, N. Y. Daily Reg Apr. 3, 1889; contra, Matter of Cager, 46 Hun, 660; overruled in 111 N. Y. 347; Matter of Spencer, 21 N. Y. St. Rep. 145.

2 L. N. Y. Appendix, sec. 25, as amended by L. 1889, ch.. 479. The children of such adopted children are, however, not within the exemption of the statute. Est. of Bird, N. Y. Law Jour. July 31, 1890. In Conn. they are relieved by express provision of the statute, supra, Chapter III, p. 48.

3 L. 1889, supra; Matter of Kemeys, 56 Hun, 117; 9 N. Y. Supp. 182; Est. of Hughes, N. Y. Law Jour. July 27, 1889; Est. of Thorne, Id. Jan'y 21, 1890.

4 L. N. Y. 1890, ch. 553, Appendix.

5 June 7, 1890.

• Sherrill v. Christ Church, 31 N. Y. St. Rep. 896; reversing Matter of Van Kleeck, 55 Hun, 472; see, also, Est. of Minturn, N. Y. Law Jour. July 18, 1890. As to the effect of the act of Pennsylvania of 1887 upon prior statutes of that State, see Com's.. App, (Fagely's Est.), 128 Pa. St. 612; s. c. 18 Atl. 386; Del Bus-to's Est. 23 W. N. C. 111; Com's. App. (Cooper's Est.), 127 Pa...