testatrix and its value as of the time of that occurrence is the sum to which the rate per cent as fixed by the statute should be applied." 2. Renunciation by Legatee. An apparent exception to the rule that the right of the state to the tax vests at death is found in the right of a legatee to renounce his legacy. Obviously this would make no difference if all beneficiaries were taxed alike; for the renounced legacy must either pass under the residuary clause or by intestacy and so be taxed. It is therefore the act of the state itself in exempting or taxing at a lower rate that defeats or abridges its vested interest. A distributee in case of intestacy cannot renounce so as to avoid the tax. This principle was illustrated in Matter of Wolfe, 89 App. Div. 349; 85 Supp. 949; aff. 179 N. Y. 599; 72 N. E. 1152. Executors who would have been taxed at the 5 per cent rate renounced and the property passed to testator's children under the residuary clause who were taxable at 1 per cent. The state claimed a vested right to the 5 per cent rate. The court held that the tax must be imposed as the property actually passed under the will. To the same effect is Owings v. State, 22 Md. 116. This presents a theoretical difficulty. If the right of the legatee vests at death and at that instant the right of the state vests also, the act of the beneficiary should not affect the vested right of the state. As will be seen this departure from a strictly scientific application of the law has opened a loophole for collusive arrangements to defeat the tax. It is also obvious that the decision rests upon the theory that the tax is not on the right to transmit, but on the right to receive. Where heirs may claim either under a deed delivered inter vivos, but not recorded, or under a will; and they elect to take under the deed and renounce the devise under the will there is no transfer under the latter. Matter of Mather, 90 App. Div. 382; 85 Supp. 657; affd., 179 N. Y. 526; 71 N. E. 1134. By an extension of the same doctrine it is held that a legatee may accept in part and renounce in part, leaving the balance to pass under other provisions of the will. Matter of Merritt, 155 App. Div. 228; 140 Supp. 13. 3. Law in Force at the Date of the Proceedings Controls Procedure. As to procedure the law in force at the rate of the proceedings controls but as to substantive rights, the law in force at the date of death. Estate of Woodard, 153 Cal. 39; 94 Pac. 242. Estate of Kennedy, 157 Cal. 517, 526; 108 Pac. 280. "It has often been held by this court that the tax is not a tax upon property but upon the right of succession and hence the true test of value by which the tax is to be measured is the value of the estate at the time of the transfer of title and not its value at the time of the transfer of possession." Matter of Davis, 149 N. Y. 539, 547; 44 N. E. 185. 4. Rights Vested Prior to Death Cannot be Taxed. As the transfer is at death rights which vested prior to the transfer cannot be taxed. So where testator died prior to the statute, leaving a life estate and remainders, it was held that the transfer does not take place at the death of the life tenant for the right to the remainder vested at the death of the testator and the statute could rot tax a transfer which had already taken place. Matter of Pell, 171 N. Y. 48; 63 N. E. 789. Commonwealth v. Wellford, 114 Va. 372; 76 S. E. 917. So a trust deed reserving a life estate vests the remainder at the date of the deed and the transfer is not taxable under a subsequent statute. State ex rel. Toser v. Probate Court, 102 Minn. 268; 113 N. W. 888. In another case a testatrix made a deed reserving a life estate with power of revocation which was never exercised and by will devised the same property to the grantee of the deed. She died October 20, 1906, and the transfer tax act became a law March 15, 1906. Held that nothing passed under the will as the life estate expired when she died and that the statute could not tax the transfer by deed made in 1896- ten years before. Commonwealth v. McCauley's Executor, 166 Ky. 450; 179 S. W. 411. The principle is well illustrated by two New York cases. In Matter of Harbeck, 161 N. Y. 211; 55 N. E. 850, the testator died in 1896 exercising a power of appointment created by the will of an ancestor dying in 1878, prior to the enactment of the transfer tax statute. The court held that the effect of the exercise of the power was to write the names of the appointees into the will of the creator of the power and that the beneficiaries took under that will and therefore their interests so acquired were not subject to the tax. The legislature then amended the act to tax the exercise of the power as though the property passing under its exercise belonged absolutely to the donee of the power. This amendment came up for construction in Matter of Dows, 167 N. Y. 227; 60 N. E. 439. The power in that case was created under the will of a testator dying in 1880, prior to the statute, and was exercised by the will of a testator dying in 1899, after the statute. It was held that the legislature had a right to declare that the transfer took place on the exercise of the power and not at its creation and that the transfer was therefore taxable. This was sustained in Orr v. Gilman, 183 U. S. 278; 22 S. Ct. Rep. 213. To the same effect is Miller v. McLaughlin, 141 Mich. 425; 104 N. W. 777. 5. Amendment and Repeal. The same principles apply in case of amendment and repeal as in construing the original enactment. An amendment creating exemptions will not be given a retroactive effect. Cornell v. Crosby, 210 Ill. 380; 71 N. E. 350. Procedure may be changed and applied to taxation of estates when death has already occurred but the substantive rights remain unaffected. Matter of Davis, 149 N. Y. 539; 44 N. E. 185. "The legislature might perhaps abolish all laws for the collection of debts; this however would not have the effect of paying or discharging the debts or in the least impair the obligation to pay them." Estate of Stanford, 126 Cal. 112; 54 Pac. 259; 58 Pac. 462. So when testator died while the tax act was in force, but no steps had been taken for collection and the repealing act saved no rights of appraisal; in an action in equity to quiet title held: "If there be a valid claim against such property the plaintiff cannot in this equitable proceeding quiet his title against such claim, even though the same be unenforceable by legal proceedings, without paying the claim." Trippet v. State, 149 Cal. 521; 86 Pac. 1084. Estate of Lander, 66 Cal. App. 744; 93 Pac. 202. That the right of the state to the tax vests at death and cannot be lost by subsequent repeal of the statute was strikingly illustrated in a recent case in New York - Matter of Wright, 214 N. Y. 714; 108 N. E. 1112. There the testator died a non-resident in 1909. By the will of his mother a life interest in a fund was given to his brother and in default of issue of the brother to the testator. The brother lived until 1912 when he died without issue. The remainder then passed under the will of testator. The trust fund consisted of stock in a New York corporation. In 1911 the statute taxing intangible personal property of non-residents was repealed. It was contended that the remainder interest, being defeasible by the birth of issue to the brother, could not be ascertained on the death of the remainderman in 1909, and was not taxable until 1912— when the life tenant died; and, as the statute was then repealed, no tax was due and the Appellate Division so held, two justices dissenting. The Court of Appeals held that the tax accrued on the death of the remainderman in 1909, although the life tenant survived him, and, being vested in the state, was not defeated by the repealing act of 1911. When the later act repealing the former is in part the same, or in similar language to the same effect, it will be construed as continuing the former statute to that extent. Howard's Estate, 80 Vt. 489; 68 A. 513. An amendment is some indication that the law did not cover the case before. Matter of Enston, 113 N. Y. 174; 21 N. E. 87. Successive laws are construed as a continuation of one another. Matter of Prime, 136 N. Y. 347; 32 N. E. 1091. Matter of Brundage, 31 App. Div. 348; 52 Supp. 362. The words "this act " and " this article " include the original and each successive act. apply to and Matter of Embury, 20 Misc. 75; 45 Supp. 821; aff. 154 N. Y. 746; 49 N. E. 1096. A statute repeals by implication the repugnant provisions of another statute passed the same day but at an earlier hour. State v. District Court, 41 Mont. 357; 109 Pac. 438. |