MATTER OF DREYFOUS

MATTER OF DREYFOUS. N. Y. Surrogate's Court; January, 1892. Statutes; time of taking effect; farts of a dayi\ The provisions of L. 1891, c. 215, extending the Collateral Inheritance Tax Act to legacies or distributive shares of the widow and immediate relatives when exceeding $10,000 in value, do not apply to the estate of a decedent who died on the morning of the day on which the act was signed by the Governor, but before the time of such signing. In such case the rights of the legatee having vested, and the act not being intended to be retroactive, the legacy is not subject to the tax. Proceedings to assess the" inheritance tax upon the estate of Joseph A. Dreyfous, deceased. The decedent departed this life on April 20, 1891, before eight o’clock in" the forenoon, leaving a will, in which he gave all his estate to' his wife, Alida Dreyfous, who is his sole executrix. It was sought to impose a tax of one. per cent, upon the personal estate of said testator passing to his wife as aforesaid, under the am'endment to the Collateral Inheritance Tax Act, as contained in chapter 215, Laws 1891. The Act under which the tax might be imposed was approved by the Governor on the same day as that on which the testator died. It was in evidence, however, that said Act was not signed until after eight o’clock in the forenoon of said day. Section 4 of said Act reads: “ This Act shall take effect immediately.” Edgar J. Nathan, for executrix and legatee.—I. The fiction that the law will not regard the fraction of a day yields when justice requires it. This fiction grew up in- the old English law, where the session of Parliament was considered one day, and an act passed on the last day of the session was presumed to have been in effect on the first day. Such doctrine never received sanction in modern times, and is now contrary to every idea of the proper administration of justice. But when we come to divide a day into fractions, it has been stated generally that the law would not- regard a part of the day, and so the claim has been made that an act approved at eleven o’clock in the evening, takes effect from a period more than twenty hours before the actual approval. It has been aptly said that the difference between such a claim and the old rule of' Parliament; is one of degree and not of principle. But the precise question here involved has been raised, and very fully discussed in numerous cases, and it has been distinctly held that whenever it becomes important to the ends of justice, the law will look into fractions of a day as readily as into fractions of any other unit .of time (Burgess v. Salmon, 97 U. S. 381; Louisville v. Savings Bank, 104 Id. 469; Matter of Ankrim, 3 McLean, 285 ; Arnold v. United States, 9 Cranch, 104 ; Plowman v. Williams, 3 Tenn. Ch. 181 ;Re Richardson, 2 Story, 571 ; Neale v. Utz, 75 Va. 480; Grosvenor v. Magill, 37 Ill. 239 ; Dwarris on Statutes, 100, 101). In Burgess v. Salmon, (supra), tobacco was stamped, sold and removed for consumption in the forenoon of March 3, 1879, and under the section of the Revised Statutes, such tobacco was then subject to a tax of twenty .cents per pound. On the afternoon of that day, the president approved the act of March 3, 1875, increasing the tax to twenty-four cents per pound. The Collector of Internal Revenue exacted the increased tax from these manufacturers, and it was held that such increase-of tax under that act did not apply to tobacco so stamped, sold and removed. The opinion of the court was written by Mr. Justice Hunt, and he. cites several cases which state generally that fractions of the day are not recog. nized, and that any inquiry involving that subject is inadmissible, and says: “To impose upon the owner of the goods a criminal punishment or a penalty of $377, for not paying an additional tax of four cents a pound, would subject him to the operation of an cx post facto law.” In Louisville v. Savings Bank (supra), it is held that when necessary to determine conflicting rights, courts of justice will take cognizance of the fractions of a day. Mr. Justice Harlan cites numerous cases on the subject, and after citing Lapeyre v. United States (17 Wall. 191), wherein it is stated that fractions of a day are not recognized, and that inquiry is inadmissible, says : “ In reference to that case we remark, that the question presented for determination was not as to fractions of a day, but whether a proclamation of the president, bearing date June 24, 1865, took effect on that day or on June 27, 1865, when it was first promulgated by publication in the newspapers. That case did not require a determination of the question of law now before us. The language quoted from the opinion must, therefore, be taken as a declaration of the general rule which obtains when the evidence does not show the necessity of regarding fractions of a day. “ In view of the authorities, it cannot be doubted that the courts may, when substantial justice requires it, ascertain the precise hour when a statute took effect by the approval of the executive. We look to the final act of approval by the executive to find when the statute took effect, and, when necessary, inquire as to the hour of the day when that approval was, in fact, given.” In matter of Richardson, (2 Story, 571,) the question is very fully discussed, and Mr. Justice STORY there says after reviewing numerous cases : “ So that we see that there is no ground of authority, and certainly there is no reason to assert that any such general rule prevails, as that the law does not allow fractions of a day. On the contrary, common sense and common justice equally sustain the propriety of allowing fractions of a day whenever it will promote the purposes of substantial justice.” In Matter of Ankrim, (3 McLean, 285,) it is said that: “To notice the fraction of a day would be productive of inconvenience, is readily admitted. In most cases where no rights are impaired by the statute, there could be no ground of complaint; but suppose a legislature should make a certain act a capital offense, and the law should take effect on the day of its date, could an individual be punished under it for an act done on the same day, but before the statute was, in fact, passed ? If in such a case an individual could be punished, it would be in virtue of a fiction of law ; and there is no difference in principle in a fiction that shall give the act a retroactive effect of half a day or half a year. The only difference is in time not in principle. A rule of construction which leads to such a result cannot be a sound one. “ Like many technicalities which have grown out of judicial action, the fiction is sustained neither by justice nor reason.” In Combe v. Pitt (3 Burr. 1423, 1434), Lord Mansfield said: “But though the law does not in general allow the fraction of a day, yet it admits it in cases where it is necessary to distinguish ; and I do not see why the very hour of the day may not be so too, when it is necessary and can be done ; for it is not like a mathematical point which cannot be divided.” In Plowman v. Williams (3 Tenn. Ch. 181), it is said: “ A day is in legal contemplation punctum temporis, without fractions, yet for the ends of justice a day may be divided.” In Grosvenor v. Magill (37 Ill. 239), the court say: “ It is true that for many purposes the law knows no division of a day, but whenever it becomes important to the ends of justice, or in order to decide upon conflicting interests, the law will look into fractions of a day as readily as into the fractions of any other unit of time (2 Bl. Com. 140, notes). The rule is purely one of convenience, which must give way whenever the rights of parties require it. There is no indivisible unity about a day which forbids us in legal proceedings to consider its component hours, any more than about a month whicrh restrains us from regarding its constituent days. The law is not made of such unreasonable and arbitrary rules.” II. Where no proof is produced as to the hour of the day when a statute became operative, it must be presumed as between the citizen and the State that the rights of the citizen, accruing on the same day, are not affected by said statute. Where the State seeks to deprive a party of some right or property, it should, where necessary, as in the case now before this court, be prepared to prove the absolute validity of its claim, or fail. The representatives of the State have full power to prescribe a certain time and thus avoid any conflict; the citizen has none. The Matter of Richardson, (2 Story, 571), distinctly lays down this rule, and Judge Story, at page 581, says: “In cases of doubt the time should be construed favorably for the citizens. The legislature have it in their power to prescribe the very moment in futuro, after the approval, when the law shall have effect; and if it does not choose to do so, I can perceive no ground why a court of justice should be called upon to supply the defect.’ III. The word “ immediately ” in the act should be construed to mean the beginning of the following day. The word is defined as meaning “without interval of time; without delay; instantly,” and the word “forthwith,” is defined as meaning “ immediately,” etc. (See Webster’s Dictionary. If the word is to be construed to mean on the very instant, great embarrassment and inconvenience may occur, and through the impossibility of proving the exact moment when a statute became a law, positive injustice might follow. In numerous cases where the word “ immediately ” has been used in a statute, it has been held to mean “ as soon as reasonably requisite under the circumstances (Pybus v. Mitford, 2 Levins, 75,77 ; Arnold v. Dinsdale, 2 Ell. & Bl. 579; State v. Lean, 9 Wisc. 295). In Pybus v. Mitford (supra), it is said: “The word ‘ immediately,’ although in strictness it excludes all mean-times, yet to make good the deeds and intents of the parties, it shall be construed such convenient time as is reasonably requisite for doing the -thing.” So “forthwith ” has acquired a well-defined meaning in the law, and does not mean on the instant, but has uniformly been construed to look to the future (Brown v. London Assurance Co., 40 Hun, 101 ; Bennett v. Lycoming Ins. Co., 67 N. Y. 277). IV. The estate of the decedent herein should be held not liable to any tax. Edgar J. Levey, for the comptroller. [MAJORITY — Ransom, S.] Ransom, S. The amendment of the law made by chapter 215 of the laws of 1891 was not intended to be retroactive. When testator died the rights of the legatee vested and were unaffected by subsequent legislation. The legacy is therefore exempt.