4 Bradf. 151 | N.Y. Sur. Ct. | 1856
By the fourth clause of his will the testator provided as follows:—“ I give and bequeath to my wife an annuity of five hundred dollars per annum, to be paid to
In England the legacy duties are made by statute a direct charge on an annuity, and consequently the courts have held that the general estate out of which the annuity is payable, cannot be compelled to pay the duty, unless there are terms in the will showing an intention to have the annuity paid clear of duty. But in this State there is no tax upon legacies as such, though executors, administrators, trustees, or guardians are liable to pay a tax for the personal estate in their hands in their official capacity. This tax is not levied upon income, but generally upon all the funds held by the executor in his representative character, “ deducting from such personal property the just debts due from him in such representative character.” (1 R. S. p. 391, § 10.) It follows therefore, that where the executor holds personal property in trust, the entire “income” of which is bequeathed for life or otherwise, the tax must be paid out of the income, the beneficiary being only entitled to the net income, after deducting the current charges against the fund. But in the present instance the testator has given an annuity, a stated annual sum, and has provided for its payment by directing the investment of a portion of his residuary estate. There is a distinction between income, and an annuity. The former embraces only the net profits after deducting all necessaiy expenses, and charges—the latter is a fixed amount directed to be paid absolutely and without contingency. It
