10 N. E. 685, 58 Am. Rep. 502, followed in State v. District Court, 41 Mont. 357, 109 P. 438, 442. See further, post, s. 331.

"The court notices the claim that the tax is against the estate alone and remarks that the claim is not against the estate alone, but as a rule the administrator has nothing to do with the real estate. The section giving the district court jurisdiction to hear and determine questions relating to the tax does not afford such hearing as avoids the constitutional objection, as it does not give the court authority to attack the valuation for the purposes of taxation. Ferry v. Campbell, 110 Iowa 290, 81 N. W. 604, 50 L. R. A. 92. See In re McPherson, 104 N. Y. 321, 10 N. E. 685. Contra, Hostetter v. State, 26 Ohio Cir. Ct. 702. Notice of the appointment of the appraiser and of a hearing on the appraisal is unnecessary. A right of appeal, however, implies notice. In re Belcher, 211 Pa. St. 615, 619, 61 A. 252.

3 Union Trust Co. v. Durfee, 125 Mich. 487, 494, 84 N. W. 1101, 7 Detroit Leg. N. 597.

'State v. Hamlin, 86 Me. 495, 507, 30 A. 76, 41 Am. St. Rep. 569, 25 L. R. A. 632.

Trippet v. State, 149 Cal. 521, 86 P. 1084, 8 L. R. A. (N. S.) 1210.

Mont. Revised Code, s. 7738, gives sufficient notice to satisfy the constitution of the appraisal and assessment of the tax. The clause provides for notice "by registered mail," and the provision lays upon the court the duty to fix the time for the appraisement within such reasonable limits as will give every person interested the opportunity to be present and have a hearing if he so desires. This may be difficult, as where in the case at bar the testator died in Ireland where he resided, but the task is no more difficult for the court in Montana than for an Irish court. The statute further provides that after the tax has been assessed the court shall immediately give notice by registered mail, and this is an additional notice, which requires knowledge by the court of the names and whereabouts of all interested persons, and this knowledge it is presumed the court will get. State v. District Court, 41 Mont. 357, 109 P. 438, 442.

1Ferry v. Campbell, 110 Iowa 290, 81 N. W. 604, 50 L. R. A. 92.

Sec. 72. Notice to Collecting Officers Unnecessary.

The New

There is no constitutional requirement that the collecting officer be notified of the proceedings for assessment. York court of appeals has remarked on this subject: "That the doctrine of notice has any application in such proceedings to the case of the comptroller, is a proposition which has neither support in some requirement of the act, nor is justified by his relation to the subject-matter. He is not a person who has any interest in the property. He is an utter stranger to it. Contingently upon the refusal or neglect to pay a tax due under the act, it may become his duty to notify the district attorney to proceed to enforce collection. The performance of that duty, however, involves the idea of a failure of the surrogate to act at all, or of a neglect or refusal to obey the decree of the surrogate's court. It doubt

less is very proper that the surrogate should cause the comptroller to be notified of the proceedings for appraisement and assessment, in order that a question which concerns the interests of the state may be tried out in the fullest possible manner; but nothing in the law, or in the relations of the comptroller, makes notice to him a prerequisite to a complete determination by the surrogate of the questions presented in the proceedings. The doctrine of notice is one which finds application when it is sought to tax the property of the citizen. When he is to be assessed, it is essential that he shall be given an opportunity to be heard, to establish a demand against him. As matter of fact, in this proceeding it appears that the comptroller was caused to be notified by the surrogate before he passed upon the question of the liability of these legacies to taxation; so that he had his opportunity to appear and be heard, if he had chosen to avail himself of it. I can see no more force in the argument as to an implied requirement of notice to him, than if the argument was made in the case of the assessment and taxation of property, under the general system of taxation in the state, that some state official should have notice and the opportunity to be heard."

Per Gray, J., in In re Wolfe, 137 N. Y. 205, 211, 33 N. E. 156, affirming 66 Hun 389, 29 Abb. N. Cas. 340, 21 N. Y. Suppl. 515, reversing 2 Connolly 600. Notice was later required even of orders of exemption. In re Collins, 104 N. Y. App. Div. 184, 93 N. Y. Suppl. 342.

CHAPTER XVI.

RETROACTIVE LEGISLATION.

§ 73. Statutes Construed as Prospective. - Powers.

§ 74. Statutes Applying Retroactively to Estates in Process of Ad

ministration.

§ 75. Decisions of the Supreme Court.

§ 76. When Property is Distributed.

§ 77. Effect of Premature Distribution. 78. After Title has Passed.

§ 79. Exemptions.

§ 80. Tax on Increase in Value.

§ 81. Location of Assets in State Insufficient Basis for Retroactive Legislation.

§ 82. Constitution Inapplicable to Conditions Prior to its Enact

§ 85. Remainder Interests Vested before Passage of Statute. § 86. Curative Act.

Sec. 73. Statutes Construed as Prospective.-Powers.

Inheritance taxes, like other laws, are prospective in operation unless expressly made retroactive, and apply only to the estates of decedents who have died since their enactment,1 although passed before distribution, and although the will is filed and probated after the passage of the statute. So an amendment to the inheritance laws must be treated as prospective in the absence of language indicating it is retrospective in character."

To construe an inheritance tax as applying to estates where distribution had not been made when the statute was passed, although the testator died before that time, would result in great inequality, as the liability to taxation would in many instances be determined by the fact whether proceedings for the settlement of the estate were commenced before or after the act went into effect. It is unnecessary to impute to the legislature a purpose to frame legislation which would thus have the practical effect to disturb vested rights and create a test of liability, thus depending upon accident and chance.5

A good example of the tendency to construe statutes prospectively may be found in Pennsylvania, where the act of 1850 declared that "the words 'being within this commonwealth' shall be so construed as to relate to all persons who have been at the time of their decease, or now may be, domiciled within this commonwealth, as well as to estates; and this is declared to be the true intent and meaning of said act." The court holds, in a well considered opinion, that this language should be applied prospectively to include the estate of one who died after its passage."

A tax on the execution of a power is valid although the power was created before the passage of the statute.

1 Lacey v. Treasurer (Iowa, 1911), 132 N. W. 843. Gilbertson v. Ballard, 125 Iowa 420, 101 N. W. 108. Cf. 110 Iowa 290. Succession of Oyon, 6 Rob. (La.) 504. Succession of Deyraud, 9 Rob. (La.) 357, relying on Succession of Oyon, 9 Rob. (La.) 501. In re Lombard's Appeal, 88 Me. 587, 34 A. 530. Howe v. Howe, 179 Mass. 546, 552, 55 L. R. A. 626. Tilford v. Dickinson, 79 N. J. L. 302, 79 Atl. 1119, reversing 1910 N. J. L., 75 Atl. 574. In re Brooks, 6 Dem. Surr. (N. Y.) 165, 20 N. Y. St. 149. In re Travis, 19 Misc. Rep. 393, 44 N. Y. Suppl. 349, 2 Gibbons 91. Eury v. State, 72 Ohio St. 448, 74 N. E. 650. Cahen v. Brewster, 203 U. S. 543, 550, 27 S. Ct. 174, 51 L. Ed. 310, affirming 115 La. 378, 39 S. 37.

2 Carter v. Whitcomb, 74 N. H. 482, 69 A. 779, 17 L. R. A. (N. S.) 733n.

3 In re Lombard's Appeal, 88 Me. 587, 34 A. 530.

4 Provident Hospital & Training Assn. v. People, 198 Ill. 495.

In re Collateral Inheritance Tax, 88 Me. 587, 34 A. 530. See, however,

Attorney General v. Stone, 209 Mass. 186, 95 N. E. 395.

6 In re Line, 155 Pa. St. 378, 380, 26 A. 728, 32 Wkly. Notes Cas. 376.

7 Orr v. Gilman, 183 U. S. 278, 288, 22 S. Ct. 213, 46 L. Ed. 196 (affirming In re Dows, 167 N. Y. 227, 60 N. E. 439, 52 L. R. A. 433, 88 Am. St. Rep. 508). [Retroactive statute of limitation, see post, s. 403.]

Sec. 74. Statute Applying Retroactively to Estates in the Process of Administration.

It is competent for the state to impose a tax on inheritances which are in gremio legis before distribution, by a statute passed after the death of the decedent,' which is not void as an ex post facto law. The tax may be imposed at any time from and including the death of the testator to distribution. One reason given is that a right to take a legacy may be subject to the laws for the assessment and collection of a tax as a premium upon the right and privilege to receive the inheritance, inasmuch as it is subject to laws which authorize the taxation of the very property bequeathed." It has been held in certain cases that inheritance taxes cannot be made retroactive.5

1Lacey v. State Treasurer (Iowa, 1911), 121 N. W. 179, 185 (McClain, J., dissenting). Succession of Oyon, 6 Rob. (La.) 504. Succession of Stauffer, 119 La. Ann. 66, 43 S. 928. Stevens v. Bradford, 185 Mass. 439, 70 N. E. 425. Attorney General v. Stone, 209 Mass. 186, 95 N. E. 395 (applying only to cases in which tax remained unpaid). Hostetter v. State, 26 Ohio Cir. Ct. 702. In re Short, 16 Pa. St. (4 Harris) 63. Commonwealth v. Smith, 20 Pa. St. (8 Harris) 100 (increase of interest charged for non-payment). Attorney General v. Middleton, 3 Hurl. & N. 125.

La. St. 1904, c. 45, provided that the inheritance tax might be "collected on all successions not finally closed and administered upon." It was argued that the closing of the succession cannot affect the question as to when the rights of the heirs vested and cannot be the cause for differentiation among the heirs, and that such a classification is purely arbitrary and that, besides, such a classification rests on the theory that the tax is one on property, when in fact it is one on the right of inheritance. But the court holds that the property bequeathed was subject to the jurisdiction of the court until it had passed out of the succession of the testator, and it was not improper classification to make the tax depend upon a fact without which it would have been invalid. "In other words, those who are subject to be taxed cannot complain that they are denied the equal protection of the laws because those who cannot legally be taxed are not taxed." Cahen v. Brewster, 203 U. S. 543, 552, 27 S. Ct. 174, 51 L. Ed. 310, affirming 115 La. 378, 39 S. 37.

When Estate not Finally Closed. La. St. 1906, c. 109, p. 173, provides that the act shall affect all successions not finally closed or in which the final account has not been filed; so where the decedent died January 11, 1906, the succession was closed by a judgment February 7, 1906, recognizing the heirs ordering them to be put into possession, and as this was done before the La. St. 1906 went into effect, this succession was not affected by that statute but was governed by the La. St. 1904. Succession of Pritchard, 118 La. Ann. 883, 43 S. 537.

2 Carpenter v. Pennsylvania, 17 How. 456.

3 The court remarks that there is nothing in the case of United States v. Perkins, 163 U. S. 625, Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283, Knowlton v. Moore, 178 U. S. 41, which restrains the power of the state as to the time of the imposition of the tax. "It may select the moment of death, or it may exercise its power during any of the time it holds the property from the legatee." Where the testator died in May, 1904, before the statute went into effect, the statute properly was made to impose the tax upon the estate. Cahen v. Brewster, 203 U. S. 543, 551, 27 S. Ct. 174, 51 L. Ed. 310, affirming 115 La. 378, 39 S. 37. See Carpenter v. Commonwealth, 17 How. 456, 462.

4 Gelsthorpe v. Furnell, 20 Mont. 299, 51 P. 267, 270, 39 L. R. A. 170. The court relies upon In re McPherson, 104 N. Y. 306, 10 N. E. 685, 58 Am. Rep. 502.

Pullen v. Commissioners, 66 N. C. 361, 362. See In re Pell, 171 N. Y. 48, 60, 63 N. E. 789, 57 L. R. A. 540, 89 Am. St. Rep. 791, reversing 60 N. Y. App. Div. 286, 70 N. Y. Suppl. 195.

A Pennsylvania intestate died leaving only collateral relatives and an illegitimate son who was legitimatized by the legislature after the death of the intestate. The estate descended and vested in the collateral heirs, and the state was entitled to collect the collateral inheritance tax. The moment a man dies leaving heirs