In re Kissam's Estate

Lott, S. The general term of the supreme court in this department has recently held, in Re Miller, 47 Hun, 394, that the operation of the act of 1887, amending the collateral inheritance act of 1885, by exempting devises and bequests to an adopted child from taxation under that act, did not affect liability for a tax which had been directed to be paid by an order of the surrogate, under the law of 1885, prior to the passage of the amendment of 1887. If the decision of the supreme court rests upon the ground of the surrogate’s order, and a setting apart of the tax, it does not apply to this case. If the order is not the basis of the decision, then it seems to conflict with the decision of the court of appeals in the case of Nash v. Bank, 105 N. Y. 243,11 N. E. Rep. 946. On the strength of the court of appeals case, the surrogate of Niagara county has recently decided that the effect of the act of 1887 was to defeat the collection of a tax, under the act of 1885, due before the passage of the act of 1887, on a bequest to an adopted child. I shall for the present overrule the objection of the executor in this case, and deny the motion to dismiss this proceeding, but, as I understand the attorney general has directed the district attorney of Niagara county to appeal from the last-mentioned decision, I think proceedings in this matter should be stayed pending the determination of that appeal. Objection overruled, and motion to dismiss denied.