101 Misc. 387 | N.Y. Sur. Ct. | 1917
The principal questions presented by the appeal of the executors are: First. Is the corpus of a trust fund created by a deed of trust executed by the decedent taxable in this proceeding? Second. If the fund is taxable, should its value be ascertained as of the date of the deed of trust or of the date of decedent’s death? Third,. For the purpose of determining the rate of taxation, should the value of the trust fund be added to the value of the legacy given to the donee by the will of the decedent? Fourth. Should trustees’ commissions be deducted from the value of the corpus of the trust fund?
The transfer tax appraiser found the value of the trust fund as of the date of decedent’s death and added it to the value of the legacy given to the widow in the will of the decedent, and from the order entered on his report the executors have appealed.
On the 4th of January, 1912, Francisco Garcia executed a deed of trust by which he transferred to the trustees therein named the sum of $100,000 to pay the income to him during his life, and if his wife survived him to pay the principal to her within thirty days after his death, but if she died before payment was actually made then to pay the principal to such persons as she designated in her will, and, if she died intestate, to pay the principal to his executors as part • of his residuary estate; if his wife died during his lifetime, then to pay the principal to him.
It seems to be established by the decisions of the courts of this state that if a donor reserves to himself
The third point raised by the executors, namely, whether the value of the corpus of the trust fund which was transferred to the widow of decedent by the deed of trust should be added to the value of the legacy given to her in the will of the decedent, is based upon facts similar to those presented as one of the grounds of appeal in Matter of Meserole, supra, and for the reasons stated in my opinion in that matter I will hold that the property transferred by the deed of trust should not be added to the value of the property transferred to her under the will of the decedent, but should be taxed under the provisions of the Tax Law in force at the date of the execution of the deed of trust. The appeal on this point is sustained.
The trustees are entitled to commissions upon the corpus of the trust fund, and such commissions should be deducted from the value of the fund in ascertaining its value for the purpose of taxation. The appraiser therefore erred in failing to deduct trustees’ commissions from the value of the trust fund.
The order fixing tax will he reversed and the appraiser’s report remitted to him for correction as indicated.
Order reversed.