Owings v. State

Bowie, C. J., delivered the opinion of this Court. This appeal involves and turns exclusively upon the proper interpretation of the 107th section of Art. 81, Code, relating to Revenue and Taxes, which section has since been repealed. The appellant on the 12th of May 1859, obtained letters testamentary on the estate of his deceased brother, James ¹¹⁸ Owings, whose will, after various large pecuniary and specific bequests, constituted him executor and residuary legatee. It appears from the answer, and is admitted in the argument, that the inventory of the deceased’s estate was returned and filed in June 1859.

At the passage of the appellant’s first account, on the 21st of August 1860, the Orphans’ Court allowed the appellant the sum of $9,650, being 5 per cent, on the amount of the personal estate, one-tenth of which, $965, was claimed and retained hy the Register, as a tax due the State, under the 106th section of the Code. The appellant filed a petition in the Orphans’ Court on the 25th November 1868, praying that the Register might be ordered to pay over to the petitioner the sum retained, as having been collected of him contrary to law. With this petition was filed as an exhibit, the petition of the Register filed in the Orphans’ Court on the 80th November 1860, stating he had received the sum of $965 with other sums of the appellant and others, under protest on their part, to he held subject to any legal decision which might be made in regard thereto, which action of the Register was afterwards, by an order passed on the same day, approved. It does not appear from the record, whether the protest was written or verbal, or on what grounds it was made; it is assumed and treated in the argument as a renunciation of the commission, in contradistinction to a release.

The Orphans’ Court on the 5th December 1863, after argument of counsel on behalf of the petitioners and the State, dismissed the petition with costs, from which order of dismissal, this appeal is taken. It is argued on behalf of the State that the tax attached to the commission when the executor’s right thereto accrued, which was upon the return of the inventory in June 1859, and that the Article which became a law on the 2nd of March 1860, should not he interpreted retroactively to the prejudice of ¹¹⁹ the State. On behalf of the appellants it is insisted that the commissions were not subject to tax, until allowed, which being on the 21st of August 1860, subsequent to the operation of the 107th clause of the Code, became subject thereto, and like all proceedings under Acts since repealed, inchoate rights were annulled, if any such existed. The 106th and 107th sections of the Code are as follows : 106th. “All commissions allowed to executors or administrators by the Orphans’ Courts of this State, shall be subject to a tax for the benefit of the State, of one-tenth part of the sum so allowed; and where a legacy is left to an executor by way of compensation, such legacy shall be reckoned in the commissions fixed by the Court. 107th. “The several Orphans’ Courts shall fix the commissions of executors within twelve months from the grant of