Sec. 94. Repeal Prevents Subsequent Recovery of Taxes Due. No proceedings can be maintained after repeal in the absence of a saving clause to collect a tax accrued before repeal.

Friend v. Levy, 76 Ohio St. 26, 51, 80 N. E. 1036.

The Maryland code, ss. 106, 107, was amended by Md. St. 1860, c. 163, providing that where the executor renounced his commission he shall not be taxed thereon. Where the repealing section was enacted before the passage of the executor's account, the executor, having renounced his commission, was not liable to the state tax of ten per cent on such commissions. Owings v. State, 22 Md. 116.

Sec. 95. Income Due after Repeal.

Income to be received only after the repeal is not subject to tax. Union Trust Co. of San Francisco v. Lynch, 148 Fed. 49, affirmed 164 Fed. 161, 90 C. C. A. 147, 214 U. S. 523, 29 S. Ct. 702, 53 L. Ed. 1067.

Sec. 96. Effect of Repeal after Appeal Taken.

Where a new law was passed in California in 1905, after a case was taken to the supreme court at Washington repealing the prior statutes without any clause saving the right of the state in respect to charges already accrued to the state, the court was asked to reverse the judgment of the California court on the ground that the state no longer had any authority whatever to levy an inheritance tax. The supreme court holds that it is its duty to decide the federal question and to leave the local question to the supreme court of California.

Campbell v. California, 200 U. S. 87, 26 S. Ct. 182, 50 L. Ed. 382.

Sec. 97. Saving Clause.

A saving clause is often inserted in a repeal, preserving all taxes due under the repealed statute.1

The fact that under the United States statute of 1898 the tax was not due and payable for a year after the death of the testator does not free the estate from the tax where the testator died within a year before the passage of the repealing act of 1902. The testator died March 15, 1902. An inheritance tax was paid January 17, 1905. The saving clause of section 8 of the act of 1902, that all taxes or duties imposed prior to the taking effect of that act shall be subject to the provisions of section 30 of the statute of 1898, operated to save a vested right to the immediate possession or enjoyment of a legacy.2

A very peculiar result was reached in Vermont recently. The testator died June 1, 1904, and Vermont statute 1904, c. 30, took effect December 9, 1904. It was claimed that the estate was not affected by the statute of 1904, but the court says that so far as the provisions of the two acts are the same or similar, the later act is to be construed as a continuance of the other, and all acts or parts of acts inconsistent with the provisions of the later act were repealed. But such repeal was not to affect the validity of a tax accrued or accruing at the time of the enactment thereof, and the court finds that since the law of 1896 did not include debts due from non-residents, the tax here in controversy was not accrued, nor was it accruing before the provisions of the new act, including such debts, took effect, and therefore the estate was subject to the statute of 1904.3

Effect of Saving Clause on Remainders.—A saving clause in a repeal saving all rights which had accrued will not save remainders where the life tenant died after the repeal, as the words include only cases where the legacy is actually demandable,* and the same result is reached where the legacy is only payable on the legatee reaching a certain age which accrues after the repeal, or where the estate was not settled till after the repeal.R

Clause Saving only Estates where Inventory Already Filed.—A provision that the statute be repealed, "except as to estates in which the inventory has already been filed at the date of the passage of this act," is unequal and therefore void within the decision in State v. Ferris, 53 Ohio St. 314.7

1 Hertz v. Woodman, 218 U. S. 205, 224, 30 S. Ct. 621.

"If the repealer was without any saving clause, there could be no doubt that the tax in question would be invalid, because such a repealer would abolish the machinery by which the assessment could be laid, and such special taxes as these can only be imposed by the machinery provided by the legislature." Hoyt v. Hancock, 65 N. J. Eq. 688, 55 A. 1004. See, however, In re Jones, 54 Misc. 202, 105 N. Y. Suppl. 932, holding that assessment could be made under a law repealed without a saving clause under the general statutory construction law. 2 Hertz v. Woodman, 218 U. S. 205, 30 S. Ct. 621.

Contra, McCoach v. Bamberger, 161 Fed. 90, affirming 142 Fed. 120, 73 C. C. A. 610. Tilghman v. Eidman, 131 Fed. 651, affirmed in 203 U. S. 580, 27 S. Ct. 779, 51 L. R. A. 326. United States v. Marion Trust Co., 205 U. S. 539, 27 S. Ct. 794, 51 L. Ed. 119, affirming 142 Fed. 120, 73 C. C. A. 610, 135 Fed. 866, 127 Fed. 386. United States v. Marion Trust Co., 143 Fed. 301, 74 C. C. A. 539, affirmed in 206 U. S. 566, 27 S. Ct. 794, 51 L. Ed. 1191. United States v. Stephenson, 212 U. S. 572.

In re Howard, 80 Vt. 489, 68 A. 513.

Clapp v. Mason, 94 U. S. 589, 24 L. Ed. 212, Fed. Cas. 9233. Mason v. Sargent, 104 U. S. 689, 20 L. Ed. 894. United States v. Rankin, 3 McCrary 113, 8 Fed. 872. United States v. Hazard, 8 Fed. 380. United States v. Brice, 8 Fed. 381. See United States v. Townsend (1881), 14 Phila. (Pa.) 493, 8 Fed. 306. United States v. New York Ins. & Trust Co., 9 Ben. 413, Fed. Cas. 15, 873 Sturges v. United States, 117 U. S. 363.

• United States v. Kelley, 28 Fed. 845.

7 Friend v. Levy, 76 Ohio St. 26, 49, 80 N. E. 1036.

§ 106. Compromise of Interests under Will.

§ 107. Interest in Insurance or Beneficial Society.

108. Curtesy or Dower, Statutory Rights of Surviving Spouse.

§ 109. Rights in Community Property.

110.

Sec. 98.

Homestead.

Transfers Inter Vivos and Causa Mortis.

The inheritance tax acts commonly cover transfers inter vivos made in contemplation of death,' and include gifts causa mortis,2 but are not limited to gifts causa mortis.3

1 Under Ill. St. 1895, p. 301, s. 1, a gift may be subject to tax if made in contemplation of the death of the donor although the transfers were absolute and were accepted by the donees who entered into possession and ownership of the property transferred and after the transfers the donor had no interest in property. It was claimed that a gift causa mortis is a transfer of property made without consideration in contemplation of death, and that the stipulation that the gift was absolute prevents it from being a gift causa mortis. But the court finds that as the gifts were made in contemplation of death they were gifts inter vivos made in contemplation of death and within the designation of gifts causa mortis. Merrifield v. People, 212 Ill. 400, 72 N. E. 446.

A deposit in a savings bank in trust for another is taxable so far as it represents deposits made by the decedent out of his own funds, but not so far as it was contributed by a third party. In re Rosenberg, 114 N. Y. Suppl. 726.

In re Edwards, 146 N. Y. 380, 41 N. E. 89, affirming 85 Hun 436, 66 N. Y. St. Rep. 231, 32 N. Y. Suppl. 901.

[Interests under trusts, see post, s. 235.]

In re Benton, 234 III. 366, 84 N. E. 1026. In re Birdsall, 22 Misc. Rep. 180, 49 N. Y. Suppl. 450, 462, 2 Gibbons 293. In re Palmer, 117 N. Y. App. Div. 360, 102 N. Y. Suppl. 236. In re Price, 62 Misc. 149, 116 N. Y. Suppl. 283.

Sec. 99. What Law Governs Deed.

A trust deed for the grantor for life with remainder over to others constitutes a transfer to the remaindermen at the date of the execution of the deed and is governed by the law in force at that time.

In re Craig, 181 N. Y. 551, 74 N. E. 1116, affirming 97 N. Y. App. Div. 289, 89 N. Y. Suppl. 971.

The testator conveyed property in trust to assign the property as the grantor might by last will appoint, and for want of such appointment to her heirs, reserving no right of revocation in the deed. The deed was signed in 1857 in Pennsylvania and subsequently the grantor moved to New York, where she lived until her death in 1885. The court holds that this is a deed intended to take effect after the death of the grantor, within the meaning of the statute of 1826. Commonwealth v. Kuhn, 2 Pa. Co. Ct. 248.

See further, ante, ss. 25, 26.

Sec. 100.

Interests under Deed Dependent on Death.

A deed is not subject to tax unless it is dependent on the death of the grantor and to take effect at his death.1

It seems to be clear that where the statute taxes generally transfers "on death," this subjects to taxation interests under a deed where the interests depend upon and date from the death of the grantor, although the beneficiary may have possession and enjoyment of the income before the death of the decedent. The same result is reached, of course, where the interests depend on two contemporaneous instruments construed together as one."

'Where a grantor made a deed of an undivided three-fourths interest of land to a brother and two sisters, reserving a one-fourth interest to himself, and delivered it to a third person with instructions to record it and sell the land and divide the proceeds equally among the grantees and himself, and he died before it was recorded or the land sold, the deed is not one taking effect in possession or enjoyment after the death of the grantor and is therefore not subject to the inheritance tax. The statute relates plainly to estates granted in deeds or conveyances which in some way make the estate granted dependent on the grantor's death; that is, to interests in real estate the possession or enjoyment of which is postponed until after the death of the grantor. The deed in question contained no reference to the death of the grantor and there was nothing in the conveyance which indicates that it was the grantor's purpose to postpone possession or enjoyment of the interests granted until after his death. In re Bell, (Iowa, 1911,) 130 N. W. 798.

2 In re Line, 155 Pa. St. 378, 393, 26 A. 728, 32 Wkly. Notes Cas. 376. The court quotes with approval Du Bois's Appeal, 121 Pa. St. 386.

In re Maris, 14 Pa. Co. Ct. 171, 3 Pa. Dist. 33. (1893.)

The testator made his will December 1, 1881, bequeathing his estate to certain collateral relatives and for religious and charitable purposes. August 14,