In re Prime's Estate

CourtNew York Court of Appeals
Citation32 N.E. 1091,136 N.Y. 347
PartiesIn re PRIME'S ESTATE.
Decision Date17 January 1893


Appeal from supreme court, general term, first department.

Petition by William C. Prime and Ralph E. Prime, executors, etc., of Edward D. G. Prime, deceased, for the appointment of appraisers to assess the legacies and devises given by the will subject to the collateral inheritance tax. From the order and judgment of the general term affirming the order of the surrogate, (18 N. Y. Supp. 603,) the following persons appeal: Maria M. Stevenson; Mary Prime; Kate Prime; Alanson J. Prime; Ralph E. Prime, individually, and as general guardian of the person and estate of Edward D. G. Prime, second; Elize D. Bird; Mary Barnum; Emma L. Goodell; the Presbyterian Board of Relief for Disabled Ministers and the Widows and Orphans of Deceased Minsters; and the American Board of Commissioners for Foreign Missions,-all legatees under the last will and testament of said Edward D. G. Prime, deceased, or otherwise interested in his estate. Affirmed.

Ralph E. Prime, Austin Abbott, and William H. Arnoux, for appellants.

Edgar J. Levey, Emmet R. Olcott, and David B. Hill, for respondents.


Edward D. G. Prime, a resident of this state, died in the city of New York on the 7th day of April, 1891, leaving a will of real and personal property. By his will he gave certain legacies to collateral relatives and to three sisters of his wife, and also to two foreign corporations, the Presbyterian Board of Relief for Disabled Ministers, and the American Board of Commissioners for Foreign Missions; the former a Pennsylvania, and the latter a Massachusetts, corporation. His residuary estate, consisting of personal property and of real property within this state, was given to collateral relatives. Under proceedings instituted in the surrogate's court of the city of New York, June 5, 1891, an appraiser was appointed under the act chapter 483 of the Laws of 1885, as amended by chapter 713 of the Laws of 1887, and chapter 215 of the Laws of 1891; and such proceedings were had that on the 12th day of October, 1891, an order of the surrogate was made, assessing and fixing a tax upon the several legacies, and upon the interest of the residuary legatees and devisees under the will, at the rate of 5 per cent. on the amount of the legacies and the value of the residuary estate. This appeal is taken by the individual legatees and devisees, and by the corporations named, from the order of the general term affirming the order of the surrogate.

There are two questions in the case, one of which is common to all the appellants, and one which pertains to the two corporations alone. The general question is presented by the claim on the part of the appellants that the only statute in force at the time of the institution of proceedings for assessing the tax, in June, 1891, imposing a legacy tax, was the act chapter 215 of the Laws of 1891, which amended the first section of the act of 1885, as amended by the act of 1887, by declaring that said first section was amended ‘to read as follows,’ and then proceeded to recite the first section as amended. The act of 1891 did not, in terms, repeal the corresponding section in the former acts. The section, as amended, embodied the same principle in respect to the taxation of what, forbrevity, may becalled ‘collateral inheritances,’ as did the corresponding section in the former acts, and made no change in the rate; but in prescribing the rate it does not follow the exact language of the prior acts. The claim, as we understand it, is that a statute which amends a prior statute in some particulars, under the formula, ‘so as to read as follows,’ operates as a repeal of the whole statute amended, unless provisions intended to be retained are incorporated in the amended statute in the same precise words of the former statute, without change of phraseology, and that it makes no difference although the same provision, in substance, is contained in the amending as in the original statute, nor although the transposition and collocation of words in the amending act were for the purpose of adjusting the new features brought in by the amendment so as to make the new and the old provisions harmonious in their relation and expression. Starting with this premise, it is then claimed that the first section of the act of 1887 having been repealed by implication, without saving to the state the right to proceed under the prior law to assess and collect the tax on estates of decedents who died prior to the passage of the act of 1891, there was no law, when the assessment in this case was made, authorizing such assessment. No assessment, it is insisted, could be made at that date under the law of 1887, because the first section of that act (the one imposing a tax) had been repealed by the act of 1891 before any fixed right of the state to assess and tax the estate in question had accrued, and no assessment could be made under the act of 1891, because that act was prospective, and applies only to cases where death occurred subsequent to its passage. By this process of reasoning it is sought to establish that the tax in this case was unauthorized; and although it is admitted that if the act of 1885 had remained in force, or if the decedent had died after the passage of the act of 1891, or if the language of the first section of the act of 1887, as to the taxation of collateral inheritances, had been incorporated, ipsissimis verbis, in the act of 1891, the interests in question would have been taxable, yet it is insisted that the right to tax has been lost by the lack of verbal identity between the two sections.

We think the contention upon this point has no support in authority or reason. The appellants rely upon the language of DENIO, J., in Ely v. Holton, 15 N. Y. 595, in which case there was under consideration an amendment to one of the sections of the Code, which re-enacted the original section ‘to read as follows,’ but added a new provision, giving a right of appeal where none existed before, which new right was invoked by a party whose rights had been concluded before the amendment, according to the prior law. It was held that a party so situated was not entitled to the new privilege. Judge DENIO, in the course of his opinion, speaking of the effect of such amendatory statutes, said: ‘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, or the changed portions, are not to be taken to have been the law at any time prior to the passage of the amended act.’ The language, ‘copied without change,’ is relied upon as indicating that it is only where there is verbal identity between the language in the first act and that of the second act that the amended act will be deemed a continuation of the former act, and that it is not sufficient, to prevent a repeal by implication, that the provisions are identical in substance. The learned judge used language appropriate to the case before the court, but the general provision enforced by the decision cannot have so narrow and confined an application as is now claimed. It is very plain that the legislature, which had established a new policy in the taxation of the right of devolution or succession, and was year by year perfecting the system, and enlarging its scope and efficiency, by new legislation, never intended to repeal the prior acts in these respects in which the new enactment corresponded in meaning with the prior law. It is obvious that the main purpose of the act of 1891 was to add a new class of taxable estates exempted by the former law, and to this extent there was a repeal of the inconsistent provision of the former acts. In recasting the section much of the language of the act of 1887 is repeated, sections are transposed, and in respect to the tax on collateral interests the rule is expressed in slightly different language, but with no change in substance. The distinction sought to be made between this case and the principle decided in Ely v. Holton, supra, is narrow, technical, and illogical. The appellants refer in support of this contention to the case of Nash v. Bank, 105 N. Y. 245, 11 N. E. Rep. 946. In that case the subsequent act, which was held to be a repeal of the former one, changed and increased the penalty prescribed by the first act for taking unlawful interest, and expressly repealed ‘all acts and parts of acts inconsistent therewith,’ and it was properly held that this terminated proceedings under the prior law. The case of Com. v. Herrick, 6 Cush. 465, resembles much more nearly the case before us. The defendant had been convicted of selling spirituous liquors contrary to law, and a motion was made in arrest of judgment on the ground that the statute under which the defendant had been convicted had been since repealed. The repeal was claimed to have been effected by the statute of 1850, which amended the former law by inserting the word ‘intoxicating’ in place of the word ‘spirituous.’ The court, (SHAW, C. J.,) after noting the fact that the penalty had not been changed, proceeded to inquire as to the intent of the legislature, and said: ‘It is very manifest that it was not the intention to put an end to the operation of the former act. On the contrary, they intended that it should continue in operation under a modification. Their intention, manifestly, was not to take away, diminish, or alter the penalties in existing cases, but to bring another class of cases within the operation of the act, not included before. So far as this did include new cases, it was a new law.’ He then proceeded to show that the word ‘intoxicating’ included ‘spirituous' liquors, and therefore that there had been no moment from the time the offense was committed that the law was not in force, punishing the offense of retailing spirituous...

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