Arnaud's Heirs v. His

Martin, J.

delivered the opinion of the court.

The heirs are appellants from a judgment by which the executor was authorised to retain a sum of eight hundred and fifty-six dollars and ninety-one cents, as due to the city for the proportion of a capital charged on some lots of the estate, which were sold by the executor for reimbursing the expenses incurred by the city in paving the street and making the banquettes before said lots, and a sum of eleven hundred and eighty-one dollars and seventy-seven cents for the tax of ten per cent, due to the state, on the estate bequeathed to them, they being aliens, and not domiciliated in the state.

1. On the twenty-seventh of September, 1827, the City Council imposed an annual tax for twenty years on all the owners of lots, for the exclusive purpose of paving the streets and making banquettes, or reimbursing the costs of such works already done, leaving to the owners, however, the *337 faculty of exempting their property from the tax by an anticipated payment in reimbursement of said costs. City Laws, 278.

As the testator did not avail himself of this faculty, and the lots are sold, it is clear his estate is not chargeable with the taxes accruing after the alienation of thelotsbyhis executor. In the case of Oakey vs. the Mayor and others, 1 Miller, 15, we held that this tax being one laid on all the owners of property of a particular description, was a tax on property ; and as the alienation of taxable property discharges the owner from all taxes on it thereafter accruing or becoming due, the testator’s estate was absolved from the tax on the lots, not due and payable at the time of the sale ; and the Court of Probatess in our opinion, erred, in overruling the appellant’s opposition to this charge in the appellee’s account.

2. The second item was properly admitted. The tax of ten per cent, laid by the act of 1828, was indeed repealed in 1830, but in the mean lime the testator had died, the appellant had acquired a right to three legacies, and the state another on the existing tax. Whatever may be the effect of the repeal of a law in criminal matters, it leaves all civil rights acquired under the law unaffected. This tax cannot be assimilated to a forfeiture which pre-supposes an offence. If it be a diminution of the right of aliens to transmit their property by will or descent, that right established by law is susceptible of being curtailed by posterior laws. There was not any unconstitutionality in the tax.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be annulled, avoided and reversed, as far as it concerns the appellants, and proceeding to give such a judgment as, in our opinion should have been given below, we have struck the first item, eight hundred and fifty-six dollars and ninety-one cents, and deducted therefrom eighty-five dollars and sixty-nine cents, as the consequent increase of the state tax ; we have added the balance, seven hundred and seventy-one dollars and ninety-two cents to the executor’s debit; added the four-fifths, six hundred, and sixteen dollars and ninety eight cents, to the sum allowed to the appellants by the judgment, four thousand two hundred and eight *338 dollars and ninety-one cents, which leaves the sum of four thousand eight hundred and twenty-five dollars and eighty-nine cents due them.

It is, therefore, ordered, adjudged and decreed, that the judgment of the. Court of Probates, as far as it concerns the appellants, be amended, and that the executor pay them the sum of four thousand eight hundred and twenty-five dollars and eighty-nine cents, and that all costs in both courts be paid by the estate.