Wills: Construction: Meaning of "Family" and "Children": Bequest to a Class

1905 Michigan law review  
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more » ... out Early Journal Content at http://about.jstor.org/participate--jstor/individuals/early-journal--content. JSTOR is a digital library of academic journals, books, and primary source objects. JSTOR helps people discover, use, and build upon a wide range of content through a powerful research and teaching platform, and preserves this content for future generations. JSTOR is part of ITHAKA, a not--for--profit organization that also includes Ithaka S+R and Portico. For more information about JSTOR, please contact support@jstor.org. RECENT IMPORTANT DECISIONS RECENT IMPORTANT DECISIONS her life and at her death to go to her heirs-at-law subject to a power of appointment by will in her. A's daughter dying after the passing of the transfer tax law, devised the property in question in fee to her daughter, born before the death of A, and her only child. The surrogate imposed a transfer tax on the property. Held, that the will of A's daughter transferred nothing to her daughter that was not given to the latter by A's will, which took effect before the passing of the transfer tax law and consequently that the property and transfer were not subject to the tax. In re Lansing's Estate (I905), -N. Y. -, 74 N. E. Rep. 882. An inheritance or transfer tax is one imposed on the succession to property, such succession being a privilege given by the state and not a natural right. In re Dow's Estate, 167 N. Y. 227, 6o N. E. 439; United States v. Perkins, 163 U. S. 625; State v. Alston, 94 Tenn. 674. A transfer tax cannot be imposed on the acquisition of property where the acquisition has taken place prior to the enactment of a taxing statute which 'contained nothing showing a direct intention to give it a retrospective effect. In re Pell's Estate, 63 N. E. 789, 171 N. Y. 48. The count did not agree on the point as to when the devisee's rights accrued. The majority of the judges held that the devisee, having a power of election to take either under her mother's appointment by will or under A's will, took under the latter an interest, either contingent or vested, in the estate on the death of A, which according to Brevoort v. Grace, 53 N. Y. 245 and In re Vanderbilt's Estate, 172 N. Y. 69, 64 N. E. 782, is immune from legislative attack the instant it accrues even though it be contingent. The dissenting judges held that the estate did not vest in the devisee on the death of A, Hall v. LaFrance Fire Engine Co., I58 N. Y. 570, but only on the exercise by her mother of the power of appointment, which created a new estate, dating from the time that such appointment became effectual and governed by the laws then in force.
doi:10.2307/1273549 fatcat:f4opttgpv5h6xjnla2x25cfttq