#### In the Matter of the Estate of Catherine T. Kemeys, Deceased.

*(Supreme Court, General Term, First Department,*

*Filed February 14, 1890.)*

1. Statutes—When they take effect.

A statute which specifies that it shall “ take effect immediately,” so takes; effect upon its approval by the governor, and not before.

3/ Collateral inheritance tax—Laws 1889, chap. 479.

Chapter 479, Laws 1889, amending the collateral inheritance tax act, took effect upon the governor’s approval, June 14, 1889, and is inapplicable to a final order assessing such tax made prior thereto.

3. Same.

Testatrix died in November, 1885. Under the law, as it then stood, the residuary estate was taxable, while, under the act of 1887 it was not. The final order assessing the tax was made in May, 1889. *Held,*that the tax could be assessed and collected notwithstanding the passage of the act of 1887, and that the act of 1889 was inapplicable to such order.

Appeal from an order of the surrogate appointing appraiser, and also from an order or decree confirming the report of the appraiser so appointed, and assessing collateral inheritance tax under chap. 483 of the Laws of 1885.

*S.*Jones, for Walter T. Kemeys, app’lt; *B. F. Dos Passos,*for resp’t.

*917Barrett, J.

The real question presented by this appeal is whether an act of the legislature, which specifies that it shall take effect “ immediately,” so takes effect upon its passage by both houses, or upon its approval by the governor.

. The appellant’s contention is that, although it only became a law upon the governor’s approval, yet upon such approval it took effect by legal relation from tire date of its passage. And he cites *Latless*v. Holmes, 4 Durnford & East, 660, in support of this contention. In that case it was held, reaffirming the role laid down in *Panter's*Case, 6 Bro. P. C., 486, that “ where no specific day is mentioned in an act of parliament from which it is to take effect, it commences by legal relation from the first day of the sessions.” We have no such rule in this state; and such a fiction of law would work great injustice. All fictions and presumptions upon the subject are here changed by the Revised Statutes, 1 R. S., 157, § 12, which provides that “ every law, unless a different time shall be prescribed therein, shall commence and take effect throughout the state on, and not before, the twentieth day after the day of its final passage, as certified by the secretary of state.”

In the present instance, the legislature *has*prescribed a different time, namely, “immediately.” That, however, does not mean “ immediately ” upon the| passage of the act by both houses, but immediately upon its becoming a law in the constitutional way. In the absence of an express declaration to that effect, the legislature is not presumed to have given retroactive force to its enactment.

And it certainly would give the act retroactive force to say that upon its becoming a law it should take effect at a prior date. This is the only reasonable view of the matter, and it is emphasized by the act of 1888 (chap. 4, amending § 2 of chap. 806 of the Laws of 1842), which requires the secretary of state, in publishing the statutes, to insert immediately under the title of each act the date when it became a law, instead of, as formerly, the date of its passage. How, the session laws, as published annually, do not show when the various acts were passed. If, therefore, the phrase “ this act shall take effect immediately” be construed to mean immediately upon its passage by both houses, we would have to go behind the printed laws, as certified by the secretary of state, and ascertain when, as matter of fact, the particular bill passed. We are therefore of opinion that the phrase in question was simply intended to operate against the twenty day provision of the Revised Statutes; and that the act took effect immediately upon its approval by the governor, and not before.

This conclusion is decisive of the present appeal. Mrs. Kemeys died on the 6th of Hovember, 1885. Under her will, her residuary estate plainly vested in Walter T. Kemeys. As the law stood at the time of Mrs. Kemeys’ death, Walter T. Kemeys was not exempt from the collateral inheritance tax. Laws 1885, chap. 483. The law exempting persons who, like Mr. Kemeys, stood to the deceased for not less than ten years prior to her death in the mutually acknowledged relation of child, was not passed until 1887. Chapter 713. And it has been decisively held that this latter law *918was not retroactive. *In re*Miller, 110 N. Y., 217; 18 N. Y. State Rep., 226. There have been differences of opinion, however, as to whether, in a case of this acknowledged relation, the legal machinery for the assessment of the tax could be set in motion, or, if set in motion, the assessment ordered, after the act of 1887 went into effect In the *Matter of*Gager, 46 Hun, 659; 13 N. Y. State Rep., 45, it was held that it could not, while in the *Matter of Arnett,*49 Hun, 599; 18 N. Y. State Rep., 576, it was held that it could. And see *Kissam*v. *The*People, 6 Dem., 171, and *In re Ryan,*18 N. Y. State Rep., 992.

The reasoning in the *Gager*case was disapproved on appeal, 111 N. Y., 347; 19 N. Y. State Rep., 497, while the views of Dwight, J., in the *Arnett*case seem to be entirely satisfactory. He says that *“*there is nothing in the history or character of the new scheme of taxation to suggest a purpose to grant exemption from its operation in the limited number of cases in which the tax accrued under the original act (1885), *and was uncollected at the time of the passage of the amendment*” (Í887).

The right to the tax vested under the act of 1885, and as that vested right was not taken away by the act of 1887, but merely withdrawn for the future, there could be no good reason why such vested right should not be enforced after the amendatory act as well as before. This was clearly recognized by the legislature in the passage of the act of 1889. Otherwise this latter act would have been superfluous. It provides as follows (chap. 479): Section 1. “ Section 25 of chapter 713 of the Laws of 1887, entitled ‘ An act to amend chapter 483 of the Laws of 1885, entitled ‘ An act to tax gifts, legacies and collateral inheritances in certain cases,’ is hereby amended so as to read as follows:

> “ Section 25. All acts, and parts of acts, inconsistent with the provisions of this act are hereby repealed; but this act shall apply to all estates of deceased persons where no assessment of the tax has been made to which such estate, or estates, are liable under the provisions of the foregoing act.”

Section 2. This act shall take effect immediately.

This amendment, however, under the construction given to it in the first part of this opinion, only went into effect on the 14th day of June, 1889, while the final order of the surrogate assessing the tax was made on the 27th day of the preceding May. The amendment, therefore, was inapplicable to this order, and did not disturb its force or effect.

It follows that the order of the surrogate should be affirmed, with costs.

Van Brunt, P. J., and Bartlett, J., concur.